
    The Electric Carriage Call & Specialty Co., Respondent, v. Martin Herman, Appellant.
    (Supreme Court, Appellate Term,
    May, 1910.)
    Appearance — Effect of appearance — Effect as waiver.
    Evidence — Parol evidence—The general rule and its applications — Admissibility of parol evidence to vary or contradict written instruments in general — Explaining ambiguities.
    Execution of written instruments — Formal requisites — Execution in representative capacity and liabilities dependent on manner of such execution—Execution by one not named as party in body of instrument.
    Judgment — Amendment and correction in same court — What errors cr defects may be corrected — Clerical mistakes.
    Municipal courts — Procedure — Judgments — Error of- clerk.
    Trial — Eeception and exclusion of evidence — Introduction, offer and order of proof — Offer by party of evidence previously excluded on his objection.
    •A person who is not named in the body of an instrument but signs his name thereto 'before delivery is to be held liable as a party to the contract.
    Where an offer and acceptance are signed, respectively, by the parties named in the -body thereof and a third party strikes- out the word “ witness ” written in at the place where . a witness should sign and writes underneath it “ O. K.” to which he subscribes his name, the doubt or ambiguity that arises on the face " of the instrument as to the capacity in which he intended to bind himself, if at all, can be resolved by parol evidence as to the surrounding circumstances or conversations had at or prior to the time of fixing his name.
    But where, in an action against such third person as a party to the contract, the plaintiff’s counsel offers to show the conversation at the time the defendant wrote O. K. and signed Ms name, but the evidence is excluded on the ground it tends to vary the written instrument, the defendant may not afterwards introduce similar evidence for the purpose of showing the intention with which his name was subscribed.
    An error in defendant’s name in a summons in the Municipal Court of the city of New York is waived by the appearance of the defendant without objection.
    Where a judgment of the Municipal Court of the city of New York is correctly rendered, it is not invalidated by an error of the clerk in 'the defendant’s name in entering the judgment, "but the summons may be corrected.
    
      This is an appeal by the defendant Martin Herman from á judgment rendered by the Municipal Court of the city of Hew York, first district, borough of Manhattan, in favor of the plaintiff.
    Mortimer Fishel, for appellant.
    Charles L. Hoffman (Henry A. Friedman, of counsel), for respondent.
   Page, J.

This was an action brought to recover the sum

of $361 on two causes of action; the first as a balance due for the installing of a certain electric sign at the Hew Empire theatre at Waterbury, Conn., and the second for 700 electric lamps. A written contract was received in evidence, under, the first cause of action, which is in the form of a proposal, stating the terms and conditions under which the sign was to be installed, addressed to one W. A. Miller and signed by The Electric Carriage Call Company and accepted on the bottom thereof as follows: “After reading the above contract the same is agreed to and accepted this 2nd day of April, 1909, and receipt of a duplicate thereof is hereby acknowledged.” Signed (in ink) “ The Electric Carriage Call Co. per M. Norden (L. S.) W. A. Miller (L. S.) ” and at the side “ Witness ” is stricken out and underneath in lead-pencil is written “ O. K. Martin Hermanthe said Herman’s name not appearing in any way in the contract.

There can be no question but that the doubt or ambiguity on the face of the instrument as to the capacity in which Herman intended to bind himself, if at all, could be resolved by parol evidence as to the surrounding circumstances or conversations had at or prior to the time of his affixing his name (Esselstyn v. McDonald, 98 App. Div. 197, 200; Knowles v. Cuddeback, 19 Hun, 590, 592) ; and, had defendant’s counsel been consistent throughout the trial, we would have given consideration to the exceptions taken by him to the exclusion of the evidence of Herman on this point. When plaintiff’s counsel asked: “ Q. I ask you what conversation took place between you and Mr. Herman, the defendant in this case, prior to his putting on the paper just marked in evidence the letters O. K. and his signature underneath % ”, defendant’s counsel, with more zeal than discretion, objected, on the ground “ that all conversations are merged in this paper, if this is the contract sued upon, and he is endeavoring by this testimony to vary a written instrument,” and then moved “ to strike out the prior testimony in reference to a conversation between this witness and defendant Herman, on the ground that the conversations are merged in a written instrument,” which motion was granted.

Defendant thereby assumed the position that Herman was a party to the contract; for it is fundamental that “ the rule of evidence that makes a written contract conclusive proof of what the parties have agreed to, thus merging into it all prior parol negotiations, and which rejects parol proof to vary or contradict the writing, or its legal import, applies only to controversies between the parties to the instrument.” Folinsbee v. Sawyer, 157 N. Y. 196, 199. The plaintiff acquiesced in this position of the defendant’s counsel and did not seek to give any further evidence on this point. But, when the defendant was on the stand, defendant’s counsel asked him: “ Will you take that plaintiff’s Exhibit 1 and look at your signature upon that and tell us the circumstances under which your signature was placed there ? ”; and again: “ Were you asked to witness that signature % ”; and, upon the exception taken to the rulings sustaining the objections, asks a reversal of the judgment. The questions were clearly incompetent, if Herman was a party to the contract and could invoke the protection of the parol proof rule as against plaintiff’s efforts to show conversations between the parties at the same time. A party cannot take one position when his adversary is offering evidence and obtain its exclusion and then claim that he should be allowed to give exactly the same evidence when the case is with him. A contrary decision would seem to violate the maxim audi alteram partem which lies at the very foundation of all regulated and intelligent judicial inquiry. HcOormick v. Mandelbaum, 102 App. Div. 302, 304. The defendant was properly held liable on the contract. A person who is not named in the body of an instrument and signs his name thereto before delivery is to be held liable as a party to the contract. “ This is considered to be an application =of the rule which requires effect to be given to all parts of a written instrument.” Esselstyn v. McDonald, supra. See also Standard Underground Cable Co. v. Stone, 35 App. Div. 62, 64; McCaughey v. Smith, 21 N. Y. 39; Knowles v. Cuddebaclc, 19 Hun, 590. The further fact appears that the defendant gave his own check for the payment required to be made on execution of the contract. It is not necessary to consider whether the defendant became a principal or a guarantor, as in the latter case he would guarantee performance •—-his liability would be the same. Knowles v. Ouddeback, supra; Murphy v. Hart, 122 App. Div. 548. There are no other exceptions that require discussion.

The court ■ did not err in correcting the summons and judgment. The defendant having appeared without objecting to the erroneous name in the summons waived that defect, and the judgment rendered by the court was correct and the entry thereof by the clerk was erroneous and not in conformity with the judgment. The Municipal Court Act (§ 282) provides: “ It shall be the duty of the clerk of the court in each district * * * 8. In the performance of his duties to conform to the direction of the court.” Having failed to do this, the court had power to direct him to do so. The judgment became effective when filed with the clerk, and his mistake could not operate to the prejudice of the parties. Vilas v. Page, 106 N. Y. 439, 455.

The judgment should be affirmed, with costs to the respondent.

Seabury and Lehman, LL, concur.

Judgment affirmed, with costs to respondent.  