20 Or. 318 | Or. | 1891
— The plaintiff brought his action upon the following instrument:
“$90.00. May 12,1884.
“On or before the first day of October, 1884, for value received, I, or we, or either of us, promise to pay to the order D. M. Osborne & Co. the sum of ninety dollars, in U. S. gold coin, at the office of-, in-, with interest in like gold coin [at] ten per cent per annum from September 1st until paid; and in case suit is instituted to collect this note or any portion thereof, I, or we, or either of us, promise to pay with reasonable dollars as attorney’s fees in such suit.
“P. 0. Willow Springs, Or. C. 0. Parker. [Seal.]”
It is alleged “that prior to the delivery of said note to the payee, this plaintiff, the defendant indorsed said note by writing his name across the back thereof, and thereupon said note was delivered to this plaintiff; that said plaintiff is the owner and holder of said note; that said note has not been paid, nor any part thereof; that said C. C. Parker and said defendant have failed and refused to pay the same; that twenty-five dollars is reasonable value of services,” etc. A demurrer was interposed to the effect that no cause of action was stated against the defendant, and sustained; and the plaintiff refusing to proceed, judgment was given for the defendant and his costs, from which this appeal is brought. The contention involved is whether the instrument sued on is a negotiable promissory note, and as such entitled to the special privileges conferred by the law-merchant. In form, the instrument executed is a negotiable promissory note, except that the signature has after it a seal, thus: [Seal.]
It is insisted for the plaintiff that by the affixing of a seal to his signature by the maker of the instrument, its negotiable quality was destroyed and it became a nonnegotiable note; while it is claimed for the defendant that the mere affixing of a seal to the signature does not make it a sealed instrument, unless there is a recognition of the seal in the body of the instrument by some such phrase as “witness my signature and seal,” or “signed and sealed,”
In this state, while a seal may be made by a wafer or wax attached to the instrument, it may be also made by a scroll with a pen after the signature to the instrument at the time of its execution and delivery. Nor does it seem that it is necessary that the scroll or seal must be recognized in the body of the instrument. “For,” Archer, J., said, “if he execute and deliver it with the scroll attached, it being considered here as equivalent to the wax or wafer, it is as much his seal as if he had declared it to be so in the body of the instrument. The fact of the clause of attestation not appearing in the usual form of ‘signed, sealed and delivered,’ can in reason make no difference; for the question always is, is this the seal of the obligor? and if he has delivered it with the scroll attached, it is his seal, and must be so considered; for whether an instrument be a specialty, must always be determined by the fact whether the party affixed a seal; not upon the assertion of the obligor in the form of the instrument or by the form of attestation.” (In Brown v. Jordhal, 32 Minn. 137, 50 Am. Rep. 560, the identical question raised here was thus disposed of by C-illeillan, C. J.: “But the appellant contends that merely placing upon an instrument a scroll or device, such as the statute allows as a substitute for a common-law seal, without any recognition of it as a seal in the body of the instrument, does not make it a sealed instrument. * * * Such words in the testimonium clause as ‘witness my hand and seal,’ or ‘sealed with my seal,’ would establish that the scroll or device was used as a seal. No such reference in the body
In Whittington v. Clark, 8 Sm. and M. 485, Thatch, J., said: “ Whenever it is manifest that the scroll is intended to be used £ by the way of seal ’, it must have that effect whether it appears from the body of the instrument, or from the scroll itself.” (McRaven v. McGuire, 9 Sm. & M. 34.) In the case at bar, the seal is not simply a scroll made with a pen opposite the signature, but the word “seal” is within the scroll and made a part of it. In what other way the party could have more clearly evinced that it was intended and used as a seal, it would be difficult to conceive. As a sealed instrument, the contention for the plaintiff is, that the effect of sealing the instrument, though it was in form a negotiable promissory note, was simply to destroy its negotiable quality, leaving it in all other respects subject to the rules of law applicable to non-negotiable notes, and that the defendant, by writing his name across the back of it before delivery to the plaintiff as payee, rendered himself liable as a maker. (Barr v. Mitchell, 7 Or. 346.) Under our statute, “the seal affixed to a writing is primary evidence of its consideration. In other respects, there is no difference between sealed and unsealed writings, except as to the time of commencing actions or suits thereon. A writing under seal may therefore be modified, or discharged by a writing not under seals or by an oral agreement otherwise valid.” (Hill’s Code, § 753.) A seal, then, is still something more than a mere formality in the execution of the instrument under our law, but is a matter of substance, and not of surplusage, giving or imparting to the instrument certain legal effects which do
The effect, then, of the seal was to convert the instrument under consideration, though in the form of a negotiable promissory note, into a non-negotiable instrument or note, and while it may be entitled to a statutory limitation different from or longer than a non-negotiable note not under seal, yet it being similar in other respects, it is subject to the same legal rules as are applicable to such non-negotiable notes. This being so, within the ruling made in Barr v. Mitchell, supra, that a person who signs his name on the back of a non-negotiable note before delivery does not in a commercial
It results that it was error to sustain the demurrer, and the judgment must be reversed and the cause remanded.