The daughter of the plaintiff had intermarried with one Morris Richards, of the county of (408) Surry, a soldier of the Revolution, who as such drew a semi-annual pension of $40 from the government of the United States. Richards was in scanty circumstances and embarrassed with debts; and his creditors had been occasionally permitted by him to draw this pension and pay themselves in part or in whole out of its proceeds. The defendant Howard had a demand against him and got possession of his certificate, and was arranging or had arranged with him for obtaining a letter of attorney to draw the pension. Under these circumstances the plaintiff, on 10 May, 1837, executed his obligation to the defendant in the penal sum of $203, with condition that whereas the defendant held a note of the said Richards for the sum of $115.29 if the plaintiff should cause to be paid to the defendant on 1 March thereafter $30, provided the said Richards should live, and every six months thereafter cause to be paid the sum of $20 until Richards' note should be fully paid off, then the obligation should be void, otherwise in full force and virtue. In September, 1838, the plaintiff filed this bill wherein he charges, *Page 332 in substance, that it was an essential part of the agreement between himself and the defendant that the plaintiff should not be bound to make the payments stipulated for in the condition of the bond unless the said Richards should permit him to draw the pension money; that it was declared by the defendant, who drafted the bond, that this part of the agreement was sufficiently manifested and expressed by the proviso therein. "if the said Richards should live"; and that upon this assurance and upon the belief that the bond did manifest this essential part of the agreement the plaintiff executed it. The bill further charges that although at the time he executed this bond he had a full expectation that the said Richards would authorize him to draw the pension yet that the said Richards had refused to do so, and the defendant is about to enforce from the plaintiff the collection of the instruments due according to the literal terms of the condition, contrary to the true intent of the agreement. Upon the filing of the bill a temporary injunction was granted. The defendant answered the bill and therein positively (409) denied that it was a part of the agreement that the plaintiff's obligation should in any manner depend upon Richards permitting him, the plaintiff, to act as his attorney in drawing the money, and averred that the bond was executed by the plaintiff with a perfect knowledge that it contained no such agreement; and that the only explanation asked or given with respect to the form of the instrument was an inquiry from the plaintiff whether the words "provided the said Morris Richards should live" ought not to be repeated after every installment therein provided for, to which inquiry the defendant answered that in his opinion the mention of it once was quite sufficient. The defendant also stated that at the time of taking the bond he fully believed that the plaintiff would be authorized by Richards to draw the money if the plaintiff desired it, but that he regarded this matter as one with which he had no concern, and further expressed his confident belief that if Richards has refused to give such authority it was because Richards had reason to believe that the plaintiff did not desire to have it. Upon the coming in of the answer the injunction was dissolved and the bill held over as an original bill. Replication was filed to the answer and proofs were taken on both sides. There can be no question of the meaning of the bond. The plaintiff is thereby bound to make the payments at the times and according to the installments stated if Morris Richards be alive. By no intendment can a further condition be understood, "if also he shall permit the plaintiff to act as his attorney in drawing the pension money." The ground of relief for the plaintiff, if he have any, *Page 333 must be that this further condition was a part of the agreement, and was omitted in the instrument through the fraud or unskillfulness of the defendant, who acted as the draftsman. The plainest instruments may be rectified in equity upon clear proof of fraud or mistake, but as solemn writings deliberately executed must be regarded ordinarily as containing the well advised and final agreement of the parties in relation to the subject-matter thereof, they will not be meddled with but upon such clear proof. We deem it unnecessary to enter upon a minute examination of the testimony exhibited in this cause, but will (410) briefly state the most material parts of it to show that it falls very short of the proof necessary to sustain the bill.
The only witness whose testimony is much relied on for that purpose is Mrs. Richards, the wife of Morris Richards and daughter of the plaintiff. She states that she was not present when the instrument was signed but came into the room after it was signed and while it was lying on the table; that Joseph Howard then read it over to the plaintiff who told Howard that he wanted it put into the writing "if Morris Richards lived and he should draw the pension" — that he asked defendant twice to have this put into the writing; that defendant observed "it would make no difference for he would be certain to draw the pension"; that the defendant then shoved the certificate into the plaintiff's hands and put up the bond. Now if this testimony be regarded as unexplained or uncontradicted by any other evidence it does not establish the plaintiff's allegation. It shows that he was aware that the condition which he wanted was not in the writing. It shows further that defendant did not pretend that the writing implied any such condition, but that defendant insisted that the plaintiff did not need any such condition because he would be certain to draw the pension. How this fact was the plaintiff was better qualified to judge than the defendant, and if he had doubts upon it there was still time for him to stop the completion of the agreement. But he received the certificate and did not object to the defendant putting up the bond.
Morris Richards has also been examined but declares that although present when the bond was executed he was so hard of hearing as not to understand it, and does not pretend that he heard the agreement of the parties.
It is to be remembered that the defendant's answer, directly responsive to the allegations of the bill, is full in denying the alleged fraud or mistake. It is manifest too that Mrs. Richards is much irritated against the defendant because of certain treatment of her husband which is not put in issue by the bill, and *Page 334 which, if true, gives her very well founded cause of anger. (411) It is in proof also that she has taken a decided stand against him in this cause, and has declared that if she could prevent it he never should get payment of his claim. The subscribing witness to the bond has also been examined on the part of the defendant, and testifies that it was executed deliberately, but says nothing of any condition suppressed or misrepresented. There is no proof of weakness of intellect on the part of the plaintiff, and there is not a little room left for the belief that Richards' refusal to give the plaintiff authority to draw the money was formal rather than real. The money, or at least a portion of it, when drawn, has passed through his hands.
PER CURIAM. Bill dismissed with costs.
Cited: Braddy v. Parker, 39 N.C. 432; Harding v. Long, 103 N.C. 7.