The opinion
The following dissenting opinions were read by Judges Vredenburgh and Van Dyke.
Vredenburgh, J.
The sole point in this case is, whether a certain bond of indemnity, dated February 2d, 1835, and signed by both the complainants and the defendants, was, as against the defendants, legally delivered. The jury and the Chancellor have found as a fact that it was not.
The bond was made to indemnify the complainants for advancing, on or about the 9th of March, 1835, $35,000 to the Delaware and Atlantic Railroad Company.
The complainants were the proper persons to whom it should he delivered. It was produced by them at the trial. No point of time since the advance of the $35,000 to the road, in March, 1835, is shown when it was not in their possession. The hill charges, that previous to the loan the bond was delivered. The answer does not raise the question or aver that the bond, at or previous to the loan, did not come to the actual possession of the com *488 plainants. I see no reason to doubt that the bond did, at or about the time of the loan, come to, aud ever since has remained in the physical possession of the complainants.
But the question intended to be raised by the defendants, and which is fully raised by their answer is, that although the bond was physically, yet that it was never legally delivered. The reason assigned why it was not legally delivered is this : those who signed the bond were part, but not all the stockholders of the said railroad company. And the defendants aver that when the bond was signed by them, respectively, it was understood by all those who executed it that all the stockholders should execute it before it should be binding upon any, and that, consequently, before such execution by all, no legal delivery could take place. The difficulty is not about the physical, hut about the legal delivery of the bond. If there was no such agreement, there can be no question but that the delivery was legal. If the proof of the agreement fails, the delivery is undoubtedly good.
This- raise» two questions
1. Can the defendants establish this agreement by parol' proof?
2. If they can, have they done it ?.
First. Is it competent for the defendants to prove by parol that the bond -was not to be binding on them unless all the stockholders signed it ?
The bond contains the names-ofnone except those who have signed it, nor does it refer to the other stockholders-. The complainants advanced this $85,000 upon the faith of it, and for many years the defendants stood by and quietly enjoyed its fruits. If the names of the other stockholders had been upon the face of the bond such proof would have- been competent. Whether it would where th,ey are all- strangers to the-face of the bond, I- do not intend to express an opinion. It certainly would be of very dangerous tendency. But whatever doubt I might *489 have as to the competency of parol proof in ease of an ordinary bond, I have none under the peculiar language of this one; and for this reason, that the verbal agreement, which the defendants set up as existing eo instanii with their respectively signing it, is in the very teeth of the written agreement which they did sign.
The verbal agreement set op is, that none were to he liable until all the stockholders had signed; and the boni they did sign, by its express terms, was to he binding upon such of the stockholders as saw fit to sign it. The agreement between the parties might have been either that the bond should not be binding until all had signed it, or it might have been that it should he binding on all who signed it, and on each one as he signed it. If nothing had been said about it in the bond itself, it might, perhaps, have been subject to parol proof; hut if the parties saw fit to say, in the instrument itself, which way it should he, parol proof is excluded.
Does the instrument show upon its face that the agreement was that it should he binding upon all who signed it, and upon each one as he signed it, and exclude the idea that it was not to he binding upon any until all the stockholders signed it ?
The bond commences as follows:
“ To all to whom these presents shall come or may concern : We, John Black, Joseph Smith, James Shreve, Clayton Atkinson, Chalkley Atkinson, Jonathan Smith, Timothy Field, Thomas Haines, Jonathan Scattergood, Bichard Jones, Philip B. Dakin, Thomas Black, Jacob Bidgway, Bestore S. Lamb, James Newbold, Benjamin Jones, John B. Bispham, John Chambers, Joseph Brown, Nathan Atkinson, A. B. Wood, stockholders in the Delaware and Atlantic Bailroad Company, send greeting.” These are twenty-one out of the thirty-seven stockholders.
It is singular that if the understanding was that ail the stockholders were going to sign, or the bond he binding on none, it should simply have said: — We, John Black, *490 &c., stockholders. In so large a transaction, with so many parties, with so singular and special an agreement, would not the language have been “all” the stockholders, or at least “the ” stockholders ?
But, again, if the intention had been as the defendants contend, would not the names of all the stockholders have been inserted? Again, how does it happen that these names in the body of the bond are the precise names of those who have signed it? If the design had been that it was to be binding on all or none, we should have expected to find in the body of the bond the names of other stockholders as likely as those who did sign it. But if the design had been that it should be binding on those who did sign it, then all this is the natural result — • then this preamble would not have said “all” or “the stockholders,” but simply stockholders, aud^the name of each one, and no other, would have been put in this preamble as he signed it.
The bond then goes on further to state, that “ whereas the Delaware and Atlantic Railroad Company borrowed of John Black, Joseph Smith, and Benjamin Jones, who are also stockholders in the said company, the sum of $35,000, to be applied toward the completion of the said road, and to secure the payment thereof, the said board have given their bond and mortgage to the said Black, Smith, and Jones; and whereas we, whose names are hereunto subscribed and seals affixed, have agreed with the said John Black, Joseph Smith, and Benjamin Jones, that in case the corporate property so mortgaged should fail to pay the said $35,000 and interest, so that a loss or deficiency should happen, that in that event each of us, and each of them, the said Black, Smith, and Jones, shall sustain an equal portion of such loss.”
Each person, when he came t<3 sign, is presumed to have read the instrument. There is no allegation that he did not, or that any fraud or misrepresentation was practised upon him. If he did, what did he read ? Not *491 that “the” or “all” the stockholders had agreed to indemnify, hut that we, whose names are hereunto subscribed and seals affixed, have agreed so to indemnify. By the very terms of their agreement, each one made Ms own signature and seal the evidence, and the only evidence, who was to be hound by the instrument. They said, in express terms, that not all the stockholders, hut those who signed and sealed should indemnify. In connection with the preamble, it says, we stockholders who sign and seal have agreed to indemnify. Again, in the latter part of the clause we last cited, it is said, “in case of loss, each of us shall bear an equal portion.” Who are “ us ?” Clearly those who sign and seal.
This bond then goes on further to say: “and in the event that any of the said parties, that is, of us mho have signed these presents, shall become insolvent, that in such case such of us as remain solvent shall bear such loss equally with the said Black, Smith, and Jones.” Here is a distinct definition in the instrument itself who are to he the parties to the instrument — not the railroad — not the Stockholders generally — but we who have signed these presents. Can we imagine that this language could have been inserted for any other reason than to preclude the possibility of such a defence as the defendants now set up ? And again, “ such of us as remain solvent will pay our proportion of the loss.” Who are us ? It is tantamount to saying again, “ we whose names are subscribed ” will pay.
This instrument then goes on further to state: “Now know all men by these presents, that in order to confirm the said agreement, and to give it legal operation and efi'ect, we, whose names are hereunto subscribed and seals af* fixed, do hereby covenant, promise, grant, and agree, to .and with the said Black, Smith, and Jones, that in case of loss, we will pay such sum of money as will divide said loss equally between such of us as remain solvent and the said Black, Smith, and Jones, that is to say, each *492 of said several individuals to bear an equal part of said loss.” Confirm what agreement? Is it not the agreement that those who sign and seal the instrument had agreed to pay their portion of the loss ? Again, who covenant and agree to pay their portion of the loss ? Is it not by the very terms, we whose names are hereto subscribed and seals affixed? Again, “each of said several individuals to bear an equal part of said loss.” Who are “ said several individuals ?” They certainly are not all the stockholders, but only those of them who sign and seal. It is perfectly manifest that the words, we whose names are hereto subscribed and seals affixed, so unusual, so often repeated, were inserted for the very purpose of excluding the idea that all were to sign before any became responsible, and for the very purpose of binding all who signed, and each one as he did sign, and to make the signing of each one the test of his liability in common with all who should sign. These words were used for the express purpose of contradistinguishing those of the stockholders who did sign from those who should not. And I do not see how that object could have been expressed in more explicit and emphatic terms. The language of the instrument is equivalent to saying, such of us stockholders as sign this instrument agree to pay. The language is not, we stockholders agree to pay, or “ we all three the stockholders ” agree to pay; but the language is, we whose names are hereto subscribed agree to pay, and such of us who have signed and remained solvent agree to pay, and each individual who has signed will bear his proportion of the loss.
It may be said, perhaps, that there might nevertheless have been a parol agreement that those who did sign should not pay unless all should sign; but such parol contract would be in direct contradiction to the written instrument. A parol agreement, that the instrument is not to be binding until all the stockholders sign, cannot coexist with an agreement in the words, we whose names *493 are hereto subscribed agree to pay, because, by this last language, they agree to pay if they sign. By the express terms of the instrument, they make their liability to pay depend upon their signing.
I am of opinion that the defendants, by the very terms of their written contract, have precluded themselves from proving by parol that they were not to be bound unless all the stockholders signed. But suppose said evidence was legal, the next inquiry is, have the defendants proved that when they signed it was agreed that none were to be liable unless all the stockholders signed. This would depend upon the proof.
Note. — Judge Vredenburgh then considers at great length the weight of the evidence upon this question, which, at his request, is omitted.