Van Etta v. Evenson

Dixon, C. J.

We decide the question of fact in this case, which was fully discussed by counsel, and which we too have fully examined, as it was decided by the court below, in favor of the plaintiff. Our reasons for this- conclusion need not be stated at length, as upon such a question no one case can be a precedent for another. It is only to vindicate the correctness of its own conclusion in the particular case that the court ever enters into a particular or extended examination of the testimony. The correctness of our conclusion is sufficiently vindicated by reference to the testimony of Ool. Yilas, which is very clear and strong, and, added to that of the other witnesses on the same side, creates a decided preponderance in favor of the plaintiff. It seems quite impossible that Ool. Yilas, whose intelligence and ■ truthfulness cannot be questioned, and who was wholly disinterested, could have been mistaken with regard to the facts to which he testified. We do not think that he was, and his testimony, or rather the admission of the defendant made to him, fully corroborates the testimony of the principal witness, Hegg, respecting the execution and delivery of the note and mortgage; and, however doubtful Hegg’s testimony might otherwise be, it cannot be rejected when thus supported.

The execution and delivery of the note and mortgage seem to have been a most unfortunate affair for the defendant Even-son, and he has our sympathy; but we cannot, upon the testimony given, sustain his defense that he never executed them or ■assented to their execution and delivery.

The note and mortgage, at the time of their execution and «delivery to Hegg, who was to negotiate and procure a loan of *37 money upon them, were in blank as to the payee of tke one and the mortgagee of tke other; and those blanks were subsequently filled by Hegg, who inserted the name of the plaintiff, from whom the loan was obtained. The only question of law in the case is as to the authority of Hegg thus to fill the blanks. It does not appear that the defendant directly or expressly authorized Hegg to insert the name of the plaintiff or of any particular person ; and his authority to do so, if it existed, is to be implied from the facts and circumstances of the execution and delivery of the papers. It is insisted that no such authority can be implied, or expressly given by parol, to write or insert anything in sealed instrument after a delivery, and that a re-delivery is necessary to give it any validity. Authorities to this effect, and we believe all that are to be found, are cited. On the other hand, cases holding the opposite doctrine are cited. The latter are considerably the most numerous, and among them is a case in this court—Vliet v. Camp, 13 Wis., 198 . This last really controls the present case, unless it is to be overruled; and we certainly see no occasion for that. The grounds upon which the opposite decisions proceed are well stated by Chief Justice MARSHALL in The United States v. Nelson and Myers, 2 Brockenbrough, 64. They axe grounds of the purest and most unalloyed technicality, originating in a state of things and condition of the law which have long since passed away. This truth was clearly perceived and fully appreciated by the great chief justice, whose opinion, almost from beginning to end, was a struggle against the conclusion at which he arrived: He was overborne by what was at that time considered the weight of authority. In the course of the opinion he says : “ If this question depended on those moral rules of action which in the ordinary course of things are applied by courts to human transactions, there would not be much difficulty in saying that this paper ought to have the effect which the parties, at 'the time of its execution, intended it should have.” And he concludes it with the following remarkable statement: “I say with much doubt, and *38 ■with, a strong belief that tbis judgment will be reversed, tbat tbe law on tbis verdict is, in my opinion, witb tbe defendants.” At tbe present day we labor under no sucb embarrassment; for tbe great weight of authority undoubtedly is, tbat effect will be given to tbe plain intention of tbe parties, notwithstanding tbe instrument may be under seal, and notwithstanding tbe technical rules of tbe early common law witb respect to tbe execution and delivery of sucb instruments. If it be manifest tbat it was the intention of the party by whom the instrument was executed, at the time of its execution, tbattbe name of tbe payee or mortgagee should, be afterwards supplied and written in by tbe person to whom tbe instrument was delivered, then tbe rule of law is, that tbe name may be so supplied and written in, and complete effect given to tbe instrument according to sucb intention.

Tbe intention of tbe defendant in tbis case is clearly manifested by tbe facts and circumstances attending tbe execution and delivery of tbe note and mortgage to Hegg, and tbe purposes for which they were executed and delivered; and tbe subsequent insertion of tbe name of tbe payee and mortgagee by Hegg was a valid execution of an implied authority tbattbe same .should be so inserted by him.

By the Court. —Judgment affirmed.