The opinion
Colt, J.
Upon the question submitted by the report of the referee, we are clearly of opinion that evidence of the means taken to ascertain the quantity of earth, gravel and stone which was to be removed under the contract of April 14, and of the subsequent filling of the blanks in the note and sealed instrument with the ascertained amounts, was properly received by him; and that the instrument containing the terms of the contract was binding upon the defendant as his deed, notwithstanding the subsequent filling of the blanks. It was a completed, intelligible contract when it was executed. The existence of the blanks did not impair its validity. The quantity of earth sold was definitely indicated by reference to specifications and profiles, and it was not necessary to state the number of squares sold or the price to be paid for them. That was a matter of computation from data given. If the blanks had been left, the rights of the parties would have been the same as if filled before delivery. The alleged alteration of the instrument was therefore an immaterial alteration, in no way changing its terms or enlarging the defendant’s liability under it. There is no pretence that it was fraudulently made; on the contrary, the blanks were filled by the surveyor, in accordance with the agreement of the parties at the time the deed was executed.
It is now well settled that an immaterial alteration of a sealed instrument, not fraudulent, will not invalidate it, though made by the party claiming under it. Brown v. Pinkham, 18 Pick. 172 . Commonwealth v. Emigrant Industrial Savings Bank, 98 Mass. 12 . Chessman v. Whittemore, 23 Pick. 231 . Adams v. Frye, 3 Met. 103 . The case is not within those in which it is held that *159 blanks in a deed constituting a material part of the instrument itself cannot, in the absence of the maker, be filled by paroi authority, because authority to make a deed must be given by deed. Burns v. Lynde, 6 Allen, 305 . Basford v. Pearson, 9 Allen. 387.
Exceptions overruled.