184 A. 825 | N.J. | 1936
This is an appeal from a judgment of nonsuit entered in the Essex County Circuit Court against the plaintiff-appellant.
The plaintiff brought suit upon a promissory note made by the defendant. The note was executed, delivered and payable in installments in the State of Florida and bore the date "March 10, 1925." The last interest payment was on "8/10/26" and unless it was a sealed instrument, action upon it would be barred under the statute of limitations of the State of Florida, as well as the State of New Jersey. The plaintiff claimed, however, that under the Florida statute, the note was effective as a sealed instrument by reason of the appearance of the printed word "(SEAL)" after the name of the maker.
At the trial the plaintiff offered in evidence the note and certified copy of several Florida statutes. The pertinent sections of these statutes read as follows: "A scrawl or scroll, printed or written, affixed as a seal to any written instrument shall be as effectual as a seal." Acts of 1893, chapter 4148, section 1.
"All written instruments heretofore or hereafter made with a scrawl or scroll, printed or written, affixed as a seal are declared to be sealed instruments, and shall be construed and received in evidence as such in all courts of this state." Id. section 2.
In granting the motion for a nonsuit the trial court citedJacksonville, Mayport, Pablo Railway and Navigation Co. v.Hooper,
We might well have rested our judgment of affirmance upon the conclusions of the learned trial court were it not for the fact that the plaintiff in its brief before this court quotes citations from three cases decided by the courts of the State of Florida, to wit, Comerford v. Cobb,
These decisions, however, were not introduced as evidence before the trial court and we need not consider them here. TitleGuarantee and Trust Co. v. Trenton Potteries Co.,
The plaintiff could have introduced these decisions as evidence of the proper construction of the Florida statutes, either by offering the "usual printed books of such reports" (2 Comp.Stat., p. 2229, § 26), or by the testimony, written or oral, of expert witnesses. Title Guarantee and Trust Co. v. TrentonPotteries Co., supra; O'Keefe v. French,
But no proof of any kind was offered in the instant case as to the construction of the Florida statutes. What the law of a sister state is, at a given time, is a question of fact, which must be ascertained by the testimony of properly qualified opinion witnesses and is like any other question of fact, one for the determination of the jury. Fithian v. PennsylvaniaRailroad Co.,
As Chief Justice Gummere pointed out in Title Guarantee TrustCo. v. Trenton Potteries Co., supra: "In order to know what the law of a foreign state is on a given subject, we need something more than the production of the statute, for that only gives the words in which the law is written. The question to be determined is not what the language of the law is, but what the law is altogether, as shown by exposition, interpretation, and adjudication, and this I take it can only be ascertained by the testimony of a professional witness whose special knowledge enables him to speak as to that fact."
In view of the permissive rather than mandatory language of section 26 of our Evidence act (2 Comp. Stat., p. 2229), allowing the courts of our state to take judicial notice of the decisions of the courts of other states as evidenced by the printed reports of their decisions, it cannot be said that a principle contrary to the above enunciation by Chief Justice Gummere has been established by our legislature.
Normally, in the absence of any evidence as to the foreign law, it is presumed that the common law principles exist in that state. Waln v. Waln,
A reading of the Florida statute offered in evidence, however, seems to indicate that some of the common law requisites of a seal have been modified or abolished in the State of Florida. Plaintiff says that the New Jersey and Florida statutes pertaining to sealed instruments are similar. Assuming, without deciding, this to be true, we cannot see how, under the construction placed by our courts upon our statutes, any benefit can enure to the plaintiff in its contention that the instrument in question is a sealed instrument.
Our present statute (3 Comp. Stat., p. 3776) is for all present intents and purposes similar to the statute as reported in Rev. Laws 305, § 1, and in construing the latter, Chief Justice Hornblower in Corlies v. VanNote, Adm'r, c., *584
It will be noted that the Florida statutes require the scrawl or scroll, printed or written, to be "affixed as a seal" in order to be effectual as a seal.
Mr. Justice Ford in Corlies v. VanNote, Adm'r, c., supra, concurring with Chief Justice Hornblower, said: "The only way to `affix a scroll, or ink, or other device, by way of seal' is by writing `witness my hand and seal' or `sealed and delivered,' or something to that effect in the instrument itself, which then becomes a deed in writing, instead of being by word of mouth. It then becomes on its face a deed, in writing, of which there can be a profert, and of which the court can form an opinion by inspection, according to the principles *585 of law * * *. Whether it be a deed or not is certainly a question of law, to be settled by the court, and they could decide it only by seeing the instrument." See, also, 1 Williston on Contracts, § 209 and 2 Page on Contracts, § 1161; 56 C.J. 894; 24R.C.L. 693.
Therefore, in the absence of any evidence to the contrary, the trial judge, in construing the Florida statute in the light of the common law, did not err in holding that a promissory note, on whose face there appeared nothing but the printed word "(SEAL)" opposite the signer's name, was not effective as a sealed instrument.
We believe the construction which Chief Justice Hornblower has put upon our statute and which the trial judge in the instant case has put upon the Florida statute to be not only sound in law, but sound in principle. Considering the great effect which seals have upon the running of the statute of limitations, it is only proper that some recognition of the act of sealing be shown by the signer. Newbold v. Lamb, supra. "The reason for this is that the mere attaching of a seal after a signature, without any recognition of it in the body of the note or in connection with the signing, in the absence of evidence showing the time when, and the person by whom the seal was affixed, would open the door to frauds and forgeries and enable evil disposed persons to prevent the running of the six year statute of limitations, by merely attaching at the end of the note a seal." In re Pirie,
Since our statute bars any recovery upon an unsealed obligation after six years (3 Comp. Stat., p. 3162) (and the Florida statute after five years), we hold that the trial judge did not err in granting a nonsuit to the defendant.
The judgment below is affirmed.
For affirmance — THE CHANCELLOR, CHIEF JUSTICE, PARKER, CASE, BODINE, DEAR, WELLS, WOLFSKEIL, RAFFERTY, JJ. 9.
For reversal — LLOYD, DONGES, HEHER, PERSKIE, HETFIELD, JJ. 5. *586