Tompkins against Corwin

Tompkins against Corwin. UTICA, August, 1828 Though the legal effect of altering, by consent of parties, the time limited to do an act, (e. g. to make an award) in the condition of a bond, leaving the original date to stand, is. to destroy the bond as a pre-existing one, and to give it effect only from the time of the alteration, yet the bond, may be declared on as bearing its original date with or without an averment that it was delivered afterwards. A bond for performing an award was dated the 19th of September, 1825, and conditioned that the award shouldbemade &c. on or before the 1st of December then next, and after-wards the parties extended the time for the award twice, by erasure and interlineation and the last time, to the 18th of January, 1826. JSéld9 that the plaintiff might either declare on the bond simply, as both dated and made on the 19th of September, or as dated that day, and made afterwards. Where the merits of the case are affected by the time when a deed becomes valid, the time of delivery should be stated and shown; for the delivery gives it effect as a deed. Otherwise, where time is immaterial. ' A contract may be set forth in pleading according to its legal effect, though this vary from the precise words. A deed executed on a particular day, may in general he pleaded as made on any other day The supreme court have often held, that in pleading time, the words next or then next may he considered as referring to the day of the month, and not the month itself. Debt on bond for the non-performance of an award, tried at the Onondaga circuit on the 12th of October, 1826, before Throop, C. Judge. The declaration was thus: “That whereas the defendant, heretofore, to wit, on the 19th day of September, A. D. 1825, at, &c. by his certain writing obligatory, sealed with his seal (and now shown, &c.) the date whereof is the the same day and year aforsaid, acknowledged, &c.” The penalty was $500. The condition set forth was, “that if the defendant, his heirs &c. shall and do, &c. well and truly stand to and obey, abide by, perform, fulfil and keep the award, Sec.” (general submission) *“so as the said award be made in writing, under the hands, &c. and ready to be delivered to the said parties in difference, or such of them as shall desire the same, on or before the 18th day of January next, (after the date of said writing obligatory meaning,) then the said obligation to be void or else to remain in full force.” The declaration then set forth the award and breaches. Plea, non est factum and performance. The oyer of the bond agreed in date and other particulars with the declaration. At the trial, the plaintiff proved the execution of the bond by Hopping, the subscribing witness. Another witness for the plaintiff, (John Wilkinson,) proved that the original bond, being of the date declared on, limited the making of the award to the 31st of December then next; and thatthe time for making the award was afterwards ex tended to the 10th of January, 1826, by erasing the words December and 31st, and inserting the words 10th and January in the bond, with the consent of both parties. The plaintiff further proved that, on the 10th of January, the time secondly appointed as above for making the award, it was agreed that the time should be extended to the 18th of January by both parties; and one witness swore that, after the agreement, he saw some person in the act of altering the" bond from the 10th to some future day, but did not recollect what day. The defendant’s counsel objected, that by the alteration, the bond became a new one; and the plaintiff ought to have set it forth as bearing date the 19th day of September, 1825, and averred that it was executed and delivered on the 10th day of January, 1826, the day when the last alteration was made, and as this was not done, there was a variance between the bond set forth in the declaration, and the one proved. The court sustained the objection; and nonsuited the plaintiff. B. D. Noxon, for the defendant, moved to set aside the nonsuit, and for a new trial. He cited 1 Chit. Pl. 348; 1 Saund. 291, note (1); Archb. Pl. 113, 115; Com. Dig. Fait, (B. 3,) 4 East, 477. D. Kellogg, contra, cited 1 Ld. Raym. 349; 2 Salk. 628; 3 Lev. 348; 1 Chit. Pl. 308, 351, 354; Doug. 665. [MAJORITY — *Curia, per Sutherland, J.] *Curia, per Sutherland, J. This is an action of debt upon an arbitration bond. The plaintiff was nonsuited at the trial, on the ground of a variance between the bond set forth in the declaration, and that proved. The declaration states the bond to have been made on the 19th day of September, 1825, and that the award was to have been on or before the 18th day of January then next. The oyer and the bond produced corresponded with the bond set forth in the declaration; but it appeared from the testimony of John Wilkinson, a witness on the part of the plaintiff, that the time limited in the bond for making the award, was originally the 31st of December, 1825 ; that it was then extended from the 31st of Deeembár to the 10th of January, by erasing the former date and inserting the ^latter in the bond, by the consent of both parties. On the 10th of January it was agreed to extend the time to the 18th of the same month, which was effected in the same way, by erasing the one and inserting the other date. It was then objected by the counsel for the defendant, that by the alteration, it became a new bond, of the date when it was last altered; and that the plaintiff should have set forth the bond, (as he had done) as bearing date the 19th of Sep tember, 1825, and averred that it was executed and delivered on the 10th day of January, 1826, the day when the last alteration was made. The objection was sustained by the judge, and the plaintiff was nonsuited on the ground of variance. The legal effect of the alteration of the bond, was probably to destroy it as a pre-existing obligation, and to render it a new bond from the time of the alteration; and it would, undoubtedly, have-been competent for the plaintiff to have declared upon it, as a bond which took effect at that time, though dated previously; as a contract may, generally, be described according to its legal effect, though such description may vary from its precise words. (1 Chitty, 307. 1 Phil. Ev. 168, note 6.) And a deed, though dated on a particular day, may be stated, in pleading, to have been made on another day. (1 Chitty, 349. 4 East, 477.) Though a deed takes effect only from its delivery, and a delivery is of course essential to its validity, yet, it need not be stated in pleading. (1 Saund. 291, note (1.) *Probably, in point of fact, few deeds are actually delivered on the day on which they bear date. They are generally previously prepared, and delivered at the consummation of the contract; and yet, I have met with no case, in which the objection was taken that the deed was not delivered on the day on which it bore date, although it is uniformly stated as having been then made. Where the justice and the merits of the case are affected by the particu lar time when the bond or deed becomes a valid and sub sisting instrument, there the time of the delivery becomes material, and may be set forth, or proved by either party. But where it is a mere question of variance, designed to defeat the action, without in any manner bearing upon the merits of the case, I am inclined to think the defendant ought not to be permitted to say that the deed was not delivered on the day when it bears date. He should, in such a case, be held concluded by his own signature to the deed, from denying that its date is the true one. In this case, it is a mere matter of form ; for admitting the date to have been the 10th of January, it would not change or affect any material allegation in the declaration. The declaration avers that the award, by the terms of the bond, was to be made on or before the 18th day of January next ensuing the date of the bond. It is contended by the defendant’s counsel, that if the date of the bond was in January, 1826, then the award was not to be made until January, 1827; whereas, by the averment in the declaration, it was to be made in January, 1826. We have repeatedly held, in similar cases, that the words next or then next, may be considered as referring to the day of the month, and not the month itself. In that view of the case, therefore, there was no variance between the bond produced and the one described in the declaration. I am, therefore, of opinion that the plaintiff was improperly nonsuited, and that the nonsuit ought to be set aside. Motion granted.