
    Frank A. Cotharin vs. E. G. Davis.
    Decided June 8, 1885.
    Justices Cox, James and Mebbiok sitting.
    Law. No. 31,313.
    1. Every bill of exceptions must be complete, either by setting out the facts on which it is founded, or by referring to some other bill of exceptions which distinctly enumerates them ; affirming Oliver vs. Cameron, MaeA. ' & Mackey, 337.
    3. It is error to exclude from the jury parol evidence tending to show that for the express purpose of concealing the magnitude of the undertaking a blank was left in the contract, and was filled up without the consent of the party sought to be charged, so as to make the contract a larger one than the latter had in contemplation at the time of signing.
    3. Evidence that the paper was in blank at the time of signing is evidence tending to prove the above facts.
    4. The rule which forbids a resort to parol evidence to vary a contract does not forbid such resort to supply omissions, or to supply blanks.
    The Case is stated in tbe opinion.
    Fred. W. Jones for plaintiff.
    E. Eoss Perry for defendant:
    1. As this claim is not within the protection of negotiable instruments, the assignee takes it subject to all defences ; Parsons on Contracts (5th ed.), 217.
    2. The refusal of the court to permit the jury to consider in any way the evidence to show that the contract sued on was signed in blank, and that this blank was afterwards, without the knowledge, consent, or authority of the defendant, filled up with the figures 50,000, was error. That this was a material alteration of the conract, need not be discussed. That an unauthorized alteration of a contract in a material respect will avoid it, is of course settled law. Chitty on Cont., (10th Am. ed.) p. 757, note (o).; 2 Pars. Cont. (5th ed.), 716 ; 1 Smith’s L. C. (6th Am. ed.), *956; Bigelow on Fraud, 98, 99, 104; Lewis vs. Shepherd, 1 Mackey, 46; Angle vs. Co., 92 U. S., 330, 333, 334, 336-339, 342. (1875.)
    The whole case would seem to be capable of expression in a certain number of questions i
    
      1. Could the contract be legally- signed with the blank in It ?
    2. If yes, could not the parties agree what figures were to limit the edition, such figures not being in the written contract ?
    3. If they could so agree, is it not competent, and even necessary for the integrity of the contract, that the oral testimony of these and other competent witnesses should be heard about this agreement as t<? the edition contemplated by this contract ?
    It seems to counsel that an affirmative answer must necessarily be given to each of these questions ; otherwise the oontract so signed in blank is either illegal — which can hardly be said — or the plaintiff had • the right to fill the blank, and thus increase ad libitum the limit of the contract, without the knowledge and consent of the defendant, or rather against the express agreement of both parties as to the said limit, which is monstrous. 1 Greenleaf on Evidence, sec. 284a.; Lull vs. Cass, 43 N. H., 62 ; Keith vs. Kerr, 17 Ind., 284; Taylor vs. Galland, 3 Iowa, 17 ; Moss vs. Green, 41 Mo.. 389; Webster vs. Hodgkins, 25 N. H., (5 Foster) 128; Miller v. Fichthorn, 31 Pa. St., 252 ; Winn vs. Chamberlin, 32 Vt., 318.
    3. The defendant offered to prove by a competent witness that the signing of the contract in question, with the blank in it, had been procured by the plaintiff by means of fraudulent representations and concealment* This testimony was excluded.
    It would hardly seem necessary to cite authority to establish that, when the question is of fraud, even a sealed Instrument may be impeached by parol testimony. The solemn recital in a deed of a payment of money has been allowed to be disproved by parol. Again, a deed absolute in form may be shown to be a mortgage only in effect; and in both these cases the reason given is that it would be a fraud to set up even a solemn deed against the express agreement of the parties, and therefore that agreement may be proven by parol — the only way in' which it can, in the great majority of cases, be proven. Starkie on Evidence, 672 (marg.); Sprigg vs. The Bank, 14 Peters, 201; Babcock vs. Wyman, 19 Howard, 289, &c., &c.; Bottomly vs. United States, 1 Story, 135 ; VanBuskirk vs. Day, 22 Ill., 260; Calkins vs. State, 13 Wis., 389; Buck vs. Appleton, 14 Maine, 284.
    Where a party has by fraud prevented the reduction of part of a contract to writing, the whole contract is open to parol proof in favor of the other contracting party. Phyfe vs. Wardell, 2 Edw. Ch., (N. Y., 47 ; Elliot vs. Connell, 13 Miss. (5 Smede & M.), 91 ; Kennedy vs. Kennedy, 2 Ala., 571; Blanchard vs. Moore, 4 J. J. Marshal, 471; Huston vs. Noble, 4 J. J. Marshal, 130; Anderson vs. Bacon, 1 A. K. Marshall, 48 ; Martin vs. Lewis, 1 A. K. Marshall, 102 ; Wesley vs. Thomas, 6 Harris & J., 435 ; Chetwood vs. Brittain, 2 N. J. Eq., (1 Green,) 438.
   Mr. Justice Cox

delivered the opinion of the court.

This case, which is before us for the second time, was an action brought upon the following paper:

“ Washington, D. C., May 6, 1879.

E. A. Cotharin: You are hereby authorized to insert my advertisement in the (Musical Gift,’ to occupy one-half column second page, for and in consideration of which I agree to pay to you or order, on presentation of this contract and certificate from a printer as to the number printed, at the rate of $10 for each and every 1,000 copies of the total number printed and delivered for distribution ; 500 copies to be delivered to me for free distribution. The edition not to exceed 50,000 copies. In case I do not furnish copy of advertisement for above edition within five days from above date, space may be charged for at the same rate as though copy had been furnished.

E. G. Davis,

Street and No., 719 Marlcet Space.’’

The record presents ten bills of exceptions, of which the first only is in proper condition to be considered by the court. Not one of the others embody any testimony or even refer to any previous hills of exceptions.

In the case of Oliver against Cameron, Mac Arthur & Mackey, 237, this court recognized the rule which has prevailed in Maryland, that every bill of exceptions must be complete, either by setting out all the facts on which it is founded, or by referring to some other bill of exceptions which distinctly enumerates them. In this case none of the bills of exceptions, after the first, contain any reference to the preceding ones, or incorporate any fact upon which they are founded.

We haVe, therefore, only to consider the first bill of exceptions, and from that it appears that after the plaintiff had offered prima facie evidence to prove the handwriting of the defendant, &c., and had shown his own performance of the undertaking, the defendant, made an offer of proof which may be said to embrace two propositions. He offered first to prove that when he signed the contract there was a blank where the figures “50,000” now appear ; and, secondly, to show that it was the understanding between him and the plaintiff that the blank was to be left unfilled, and that the defendant was only to pay the plaintiff ten dollars under said contract instead of five hundred dollars as claimed in this action.

This offer was refused, and it was said, in the course of the argument, that the court below felt constrained to exclude the evidence under the previous ruling of this court in reviewing the first trial of the case. It becomes, there, fore, necessary to refer to the opinion which was delivered before in reference to this same case, and which is reported in 2d Mackey, 230.

It appears that at the first trial, after the defendant had himself testified to the existence of a blank in the paper when it was signed by him, he offered to show that similar papers had been presented to other parties in Washington also containing blanks, all of which were found afterwards to be filled up with the same number of “ fifty thousand ” copies. That evidence was admitted below, against objection. The fact offered to be proved was considered by this court res inter alios, and the judgment below was reversed on that ground, and that is the only question the court professed to decide in the former hearing given in the General Term. But in delivering the opinion in that case the decision on that question was prefaced by some suggestions and queries which are said to have influenced the court at the last trial in the ruling which is now complained oí. I said on that occasion:

“If any wrong was done, the probability, it seems to me, is that it was in omitting the words (these large figures) 50,000 copies — for the purpose of preventing the defendant’s attention from being called to the magnitude of the undertaking he was entering upon. He was thus, perhaps, lulled into some security and deterred from inspecting the instrument with the care that he ought to have exercised. Whether that folly of his is a defence or not is not a question before us, because the record limits us to the question of evidence simply.”

It will be seen, therefore, that we disclaimed any discussion of the question thus suggested, and really, therefore, it had not the force of a decision which the court below was bound to follow .

Upon re-examining this question and reconsidering the question which is now presented, it seems to us very plain that if the jury should find that the plaintiff in this case left a blank in this paper and filled it up after it was signed by the defendant, for the express purpose of concealing from him the magnitude of the undertaking, he was attempting to procure from him a larger contract than the defendant had in contemplation — which would be a plain fraud — and evidence tending to establish that ought to be admitted, and evidence that the paper was in blank when signed; and was filled up afterwards, is evidence tending to prove that condition of things.

But there is still another question. Proof was offered to show that the blank, by common understanding, was to be jeft blank, and that the defendant was only to pay the plaintiff ten dollars under the settled contract. This was-objected to on the ground that it was parol evidence offered to contradict or vary a written agreement.

Here is an agreement which contains a statement the edition not to exceed-copies.” We consider this as having the same effect as if deliberately written out in this form, and as if the party had said he would pay ten dollars for every thousand, the edition not to exceed - copies, which is equivalent to saying that he would pay ten dollars for every thousand copies, to the amount of blank dollars.

Now, taking that as a written contract, it would be manifestly incomplete. There would he an omission, a blank in the contract, and the rule which forbids a resort to parol evidence to vary a contract does not forbid a resort to parol evidence to supply omissions or to supply blanks. There will be found a good collection of cases on this subject in the notes to 2 Phillips on Evidence, chap. 1, in which it appears that the courts have gone very far in allowing the introduction of 'parol evidence to show what they call a supplementary contract, particularly when the contract on its face is manifestly incomplete and even in cases where there is no appearance of such incompleteness on the face of the contract.

Now we think that this paper on its face was an incomplete written contract. It had a blank and it was competent for parties to supply that blank by parol proof, and it was therefore competent to show, outside of the paper, that it was agreed that the blank should remain there and that in fact the number- of copies should be only five hundred more, so as to create a liability, in the whole, of ten dollars.

We are therefore compelled to reverse the judgment in this case, and to order a new trial.  