
    
      WELLS vs. DILL.
    
    If one of the parties to a contract refuse to sign, it is not binding on others who have already affixed their signatures.
    Appeal from the court of the sixth district.
   Porter, J.

delivered the opinion of the court. The defendant is sued on the ground that he signed, as surety, an instrument purporting to be a bond given by Charles R. Blanchard, for his faithful performance of the duties of curator, to the vacant estate of one Jared Rison, deceased.

West'n District

Sept. 1823.

In opposition to this action the defendant relies principally, on the want of the signature of another person, to the instrument, whose name is mentioned in the body of it, as co-surety.

The bond is drawn in the name of Charles R. Blanchard, as principal, and the defendant and Walter Turnbull as sureties. At the bottom the names of Blanchard and Dill are affixed; that of Turnbull is wanting.

We agree with the defendant that, under these circumstances, his signature to the obligation does not bind him. The contract is incomplete until all the parties contemplated to join in its execution affix their names to it: and while in this state cannot be enforced against any one of them. The law presumes, that the party signing, did so, upon the condition that the other obligors named in the instrument should also sign it: and their failure to comply with their agreement gives him a right to retract. The authority of Pothier is express on this head—Pothier, traite des obligations, no 11. See, also, 4 Cranch, 219.

Johnston for the plaintiff, Baldwin for the defendant.

It is therefore, ordered, adjudged and decreed, that the judgment of the district court be reversed, avoided and annulled ; and that there be judgment for the defendant with costs in both courts.  