Cole v. New York, Lake Erie & Western Railroad , 44 N.Y. Sup. Ct. 394 ( 1885 )

Barnard, P. J.:

The case presented does not seem to be covered by the principles invoked by the learned counsel for the appellant. There must be a complete contract in writing to take a case out of the statute of frauds. (Drake v. Seaman, 97 N. Y., 230.) The paper in question is perfect and complete. One Sexton was an employe of the defendant. £Le was trading with Cuff. The papers were made out to be filled up by Cuff so as to apply to the period of the default by Sexton. Sexton failed to pay in December, 1883, and Cuff filled up the blanks by express authority of Sexton, given at the date of the execution in blank. When this power was exercised the paper became a completed paper as if executed by the assignor himself. There are cases which hold that the delivery of a paper in blank carries with it the implied power to fill up the blanks. It is not necessary to go so far in this case, as the power was given in fact to fill the blanks. A power may be created by parol to execute a paper under seal so as to escape the operation of the statute of frauds. (Worrall v. Munn, 1 Seld., 229.) The fair meaning of the verbal assignment is, that the assignment was made to cover any default “ if he failed to pay for any wages for any month. It was not intended to be so restricted that there must be a failure to pay in November before it could be filled up for December wages. It could be filled up as of thirty-first December for a default in December. The salary was earned at the date of the assignment. It was not intended to operate until there was a default, and it was not filled up until a default had happened.

These conclusions apply as well to the portion of plaintiff’s claim acquired by assignment from Middaugh. There was the same power given to fill up the blanks and executed in the same way upon a default. The controversy as to .the payment under this part of the plaintiff’s claim must be left as found. The evidence is conflicting, but not so preponderating as to call for a reversal of the finding. The part of the claim of the plaintiff devised by assignment from Aber was entirely disputed. Aber testified that he did not execute the assignment of Langton through whom the plaintiff derived title. Langton testifies he did. "Whether the debt was represented by a note of thirty dollars and ninety-six cents, and an account for a small sum in addition, or whether the note included all, is of no moment in itself. Even a mistake upon this point does not very materially tend to solve the question of the signature to the assignment in April, 1883.

We are led, therefore, to the conclusion that the judgment is right, so far as it is appealed from, and that it should be affirmed, with costs.

DtkmAN and Pkatt, J J., concurred.

Judgment affirmed, with costs.