GEORGE
v.
TATE.

*568 Mr. Nelson Cobb for the plaintiffs in error.

Mr. John K. Cravens, contra.

MR. JUSTICE SWAYNE delivered the opinion of the court.

The errors assigned in this case relate to three subjects:-

The admission in evidence by the court upon the trial below of the instrument dated Nov. 1, 1872;

The refusal by the court to permit evidence to be given of fraud by the defendant in error, in procuring from the plaintiffs in error the bond upon which the judgment below was recovered;

And the instructions given by the court to the jury touching the set-off claimed by the plaintiffs in error.

These several topics will be separately considered.

It was in proof that the firm of Myers & Green were largely indebted to Tate. He applied to Myers for payment. Myers said they had a claim against George & Brothers then in suit. He requested Tate to "go up and see Billy Green," and added, "he will let you have the claim against George & Brothers." Tate went to Green, and Green had the instrument in question drawn, and after its execution delivered it to *569 Tate. Green further agreed that the judgment in the pending suit should be assigned to Tate as soon as it was recovered.

Tate subsequently saw Myers and showed him the assignment. He said it was "all right," and Tate thereupon gave up to him the notes of Myers & Green to the amount of the claim against George & Brothers.

The bond was given to prevent the execution of a writ of attachment issued for the seizure of the property of George & Brothers, to secure the payment of any judgment Myers & Green might recover against them. It was conditioned for the payment of such judgment.

Viewing the transaction in the light of this evidence, it cannot be doubted that it was the intention of both parties that the bond should be transferred to Tate, and we think that intent was made effectual. The difficulty, so far as there is any, has arisen from the unskilfulness of the draftsman of the instrument. The assignment could have been made by one of the partners, and he could have made it by parol. Jones v. Guaranty & Indemnity Company, 101 U.S. 622; Story, Partn., sect. 101. The signature of the firm name shows that the instrument was intended to be the act of both partners, and effect must be given to it accordingly. This can be done upon settled legal principles and analogies.

If a promissory note be drawn, "I promise to pay," &c., and is signed by more than one person, it is the joint and several note of all who sign it. Clerk v. Blackstock, 1 Holt, 474; Hunt, Adm'r, v. Adams, 5 Mass. 358; S.C. 6 id. 519.

If one party only be named as obligor in the body of a bond, and others sign it also, all are bound. In no other way can any effect be given to the signatures of those not so named. The intent is clear, and that is sufficient. Parks v. Brinkerhoff, 2 Hill (N.Y.), 663; Perkins v. Goodman, 21 Barb. (N.Y.) 228.

A bond to B.'s executors, B. being alive, is a bond to B. Langdon v. Goole, 3 Lev. 21.

In Simpson v. Henderson (1 Moo. & M. 300), a written contract stipulated that a ship should be ready to take freight on board "forthwith." Parol evidence was admitted to show the surrounding circumstances when the contract was made. *570 Lord Tenterden said: "The word `forthwith,' indeed, in strictness, means immediately; but it is plain this cannot be the construction to be affixed to it here. It was known that she required some repairs; at least, to be coppered, and some time must be allowed for that." He left it to the jury to say whether, under the circumstances, the vessel had been made ready within a reasonable time.

"Debt on an obligation conditioned to pay £7, by 2s. a week until the £7 were paid, and if he failed of the payment of the 2s. at any of the days wherein it ought to be paid, the obligation to be void, or else to remain in full force. The defendant pleads that he did not pay the 2s. on one of the days wherein it ought to be paid. The plaintiff demurs... . The court held that the condition should be taken distributively, by referring particulars to particulars, viz. that if he paid the £7 the obligation should be void; but if he failed of paying the 2s. at any of the days, it should be in full force; to which the rest agreed; for the obligation shall not be of no effect if by any means it may be made good." Vernon v. Alsop, 2 Lev. 77. It has been said by an eminent writer that "words are the counters of the wise and the money of the unwise." Their office is to symbolize ideas. The intent of the parties is the contract, and whenever that is ascertained, however in-artificially expressed, it is the duty of courts to give it effect.

As between Myers & Green and Tate, the title of Tate was good by estoppel. The consideration which passed from him to them made it so.

A title to real estate thus acquired is effectual either for attack or defence in an action of ejectment. Dickinson v. Colgrove, 100 U.S. 578.

The court below committed no error in this connection.

Proof of fraudulent representations by Myers & Green, beyond the recitals in the bond, to induce its execution by the plaintiff in error, was properly rejected.

It is well settled that the only fraud permissible to be proved at law in these cases is fraud touching the execution of the instrument, such as misreading, the surreptitious substitution of one paper for another, or obtaining by some other trick or device an instrument which the party did not intend to give. *571 Hartshorn et al. v. Day, 19 How. 211; Osterhout v. Shoemaker and Others, 3 Hill (N.Y.), 513; Belden v. Davies, 2 Hall (N.Y.), 433; Franchot v. Leach, 5 Cow. (N.Y.) 506. The remedy is by a direct proceeding to avoid the instrument. Irving v. Humphrey, 1 Hopk. (N.Y.) 284.

The evidence was properly rejected for another reason.

Where a party reaps the benefit which the bond gives in such cases, and is called upon to respond, he is not permitted to repudiate the obligation he has assumed.

In a case not unlike this Judge Story said: "The question is not new, and I am entirely satisfied that where the claimant voluntarily accepts a delivery on bail, it is an estoppel of his right to contest the validity of the security. He accepts or not at his pleasure, and it would be grossly inequitable if he might lie by until the close of the cause, receive and use the property, and then, by detecting an error in the bond, set the whole judgment of the court at defiance." The Brig Struggle, 1 Gall. 475. See also Bigelow, Estoppel, p. 206, and post, and 2 Whart. Evidence, sect. 1039, and the authorities cited by each author.

The instructions as to the set-off or counter-claim were as favorable to the plaintiffs in error as they had a right to ask. The jury, upon the evidence, found against them. With this result, there being no error of law involved, this court has nothing to do.

It is insisted that the court erred in instructing the jury that "an assignment of the claim in suit against George & Brothers, or an assignment of the judgment rendered thereon, would also transfer the bond sued upon in this action."

In this there was no error. The instruction was in exact conformity to the law upon the subject. Bowdoin v. Colman, 6 Duer (N.Y.), 182; Craig v. Parkis, 40 N.Y. 181; Claflin v. Ostrom, 54 id. 581; Pattison v. Hull, 9 Cow. (N.Y.) 747; Hosmer v. True, 19 Barb. (N.Y.) 106.

All the assignments of error are without merit.

Judgment affirmed.