Benoist v. Inhabitants of Carondelet

8 Mo. 250 | Mo. | 1843

Tompkins, Judge,

delivered'the opinion of the Court.

Louis A. Benoist and Aaron H. Hackney commenced an action by petition in debt against the inhabitants of the town of Carondelet, and state that they are the legal owners of a note against the inhabitants of the town of Carondelet, to the following effect: — ■

“Carondelet, February 1 Qth, 1841.

“ Twelve months after date, the inhabitants of the town of Carondelet promise to pay to Wilson Primm, or order, the sum of two hundred dollars, for value received, negotiable and payable without defalcation, with interest from the date till paid. In witness whereof, the chairman of the board of trustees of the said town of Carondelet has signed this note, and the register of the said town has countersigned the same, and has affixed hereunto the corporate seal of the said town of Carondelet. (Signed) “Joseph Leblond, Chairman.

“Teste,” “ P. L. McLaughlin, Register.” [jSW.]

This writing was endorsed by Primm to Benoist & Hackney. The declaration, or petition, was demurred to, and the cause assigned for demurrer was, that the instrument of writing sued on and set forth in the petition is a writing under seal, and it is described and declared on as a note or unsealed instrument.

The seal put to an instrument of writing'which is delivered, makes the difference between a deed which implies a consideration, and a parol agreement in writing, or, in other words, a note.— See Powell on Contracts, 200.

The inhabitants of the town of Carondelet, in this case, act by two agents, the chairman and register. To the register seems to belong the keeping of the corporate seal. In private writings there are, in such cases, but two persons in each party, obligor and obligee, and the instrument itself, from the solemn manner in which it is executed, i. e., by affixing the seal of the obligor, implies a consideration which cannot be inquired into at law. There is still more solemnity in the manner of executing the instrument of writing here under consideration, than in the execution of a private single bill obligatory. Here are two officers, the one to be a check on the other; the chairman signs the writing, but before it becomes a valid instrument of writing, the register signs and affixes the corporate seal. Then the instrument, on delivery, becomes the deed of the inhabitants of Carondelet. But it is contended, that by this course of argument, every ordinance of the, town becomes a deed. It is an abuse of language to call a law a deed. The law or ordinance is an act of as high solemnity as a deed, and it is as obligatory on those for whose government it is made, as is the writing obligatory on the individuals who execute such writing obligatory.

The writing sued on, then, being stated to he a note, and the v^riting set out in the petition being a bond or writing under seal, the demurrer to the petition or declaration in debt was, in the opinion of this Court, properly sustained in the Court of Common Pleas.— See Brown vs. Lockhart, 1 Mo. Rep., 409.

The judgment is, therefore, affirmed.