Zartman v. First National Bank of Waterloo New York

This was a suit brought in the supreme court of the state of New York by the First National Bank of Waterloo, New York, against Francis Bacon and George E. Zartman, as Bacon's trustee in bankruptcy, to procure the reformation of a written contract made by plaintiff and defendant Bacon February 15, 1902.

Before the contract was made, Bacon was president of the First National Bank of Waterloo, New York, and also of the Waterloo Wagon Company. He was active in the office of the wagon company, while the business of the bank was looked after by its cashier, Becker. The Waterloo bank had extended credit to the wagon company and to Bacon individually, discounting paper and taking notes.

The Exchange National Bank of Seneca Falls, New York, held, by assignment from Bacon, 461 shares of the stock of the wagon company, and 253 shares of the Waterloo bank, as continuing collateral security for any existing or future indebtedness of Bacon or the wagon company.

The contract between Bacon and the Waterloo bank provided that the shares were 'to be held by said bank as a continuing collateral security for the payment to it of any indebtedness or liability of any kind, absolute or contingent, due or not due, now existing or that may hereafter exist, arise, accrue, or be contracted, on the part of himself or of the Waterloo Wagon Company, Limited, to said bank, and the said Francis Bacon hereby agrees with the First National Bank of Waterloo that the said certificates of stock above named are transferred to and may be held by the said First National Bank of Waterloo as a continuing collateral security for the payment to it of any indebtedness or liability of any kind, absolute or contingent, now existing or that may hereafter exist, arise, accrue, or be contracted on the part of the Waterloo Wagon Company, Limited, or himself, to said bank, and said shares of stock, upon their surrender by the Exchange National Bank, shall be deposited with the said First National Bank of Waterloo.'

The words in italics were omitted from the contract by mutual mistakes made in preparing and executing it, and the New York supreme court, by its decision, reformed the contract by inserting them. In the meantime, however, Bacon had become a bankrupt, having been so adjudicated May 4, 1904, and defendant Zartman had been appointed trustee.

This action was begun October 17, 1904. The trustee alone defended.

The judgment was unanimously affirmed by the appellate division of the fourth department (113 App. Div. 612, 98 N. Y. Supp. 717), and, on appeal to the court of appeals, the decision of the appellate division was unanimously affirmed without opinion. 189 N. Y. 533, 82 N. E. 1126. The remittitur was filed below November 9, 1907, and this writ of error was thereupon allowed.

Mr. George E. Zartman, in propria persona, for plaintiff in error.

Messrs. W. H. Sholes and Hammond & Hammond for defendant in error.

Statement by Mr. Chief Justice Fuller:

[Argument of Counsel from pages 136-138 intentionally omitted]

Mr. Chief Justice Fuller delivered the opinion of the court: