4 Wash. C. C. 471 | U.S. Circuit Court for the District of Eastern Pennsylvania | 1824
The plea-of non est factum has nothing to do with this question, which respects the instrument offered in evidence as the deed of the plaintiffs, whereas this plea merely denies it to-be the deed of the defendant. The real question is, whether the deed offered in evidence is the same as the one which is declared upon? Now the cases, which have been read, abundantly prove that the execution by Henry Darst, one of the partners and owners of the land, with the consent of the other two, made it their deed; and although there he but one seal, yet that is, in point of law, the seal of each of them. But it is contended that the declaration avers that each of them sealed the deed, whereas in point of fact, two of them did not seal it, but only assented to the sealing, by the one who did affix the seal. But if the declaration would bear the construction given to it by the defendant’s counsel, still I do not see that it would not be a legal truism, that the deed was sealed by those other two, upon the principle laid down in the cases cited at the bar. What a man does by his constituted agent, is done by himself, and he may so aver it. But the declaration is misconstrued by the counsel. The expressions are, that the plaintiffs, by the name and description of Henry Darst & Co., and the defendant, respectively signed and sealed the instrument; that is, H. Darst & Co. and the defendant, not the three plaintiffs and the defendant; and the fact corresponds strictly with the allegation. Proof of the assent and concurrence of the other two being given, if their joining in this suit be not itself sufficient for the purpose, the agreement is good evidence to go to the jury.
The concurrence of the other two having been proved, as well as the compliance of the plaintiffs with the contract on their parts, THE COURT directed a verdict to be found for the plaintiffs for the balance of the purchase money due. Verdict accordingly.