Hatch v. Crawford, 2 Port. 54

Hatch v. Crawford

2 Port. 54 | Ala. | 1835

By Mr. Chief-Justice Saeeold

The present plaintiff declared against Mary Crawford, as administratrix of the estate of James Crawford, deceased, in assumpsit. The cause of action is a memorandum of an agreement between said Hatch and James Crawford, the intestate, containing reciprocal stipulations for and against each of the parties, and concludes with these words : “ Given under our hands and seals, this 30th day of September, 1830” — Signed, R. Hatch — James Crawford — one name being placed directly below the other : opposite the name of Hatch, a seal is affixed, which is the only one to the instrument. The declaration contains two counts: the first being special on the agreement, as in the case of a simple contract; the second, for money lent and advanced.

The plea, was that of the general issue. On the trial a verdict and judgment were rendered for the defendant: upon which the plaintiff prosecutes this *56writ of error. A bill of exceptions shows, that when the plaintiff offered in’ evidence the memorandum, of the agreement as described, an objection being made to it by the .defendant’s counsel, the Circuit Court sustained the objection, and excluded it from the jury, upon the ground, that an action of assump-sit would not lie on such an instrument; the same being, in the opinion of that Court, a sealed instrument.

The exclusion of the instrument, is the cause assigned for error.

It is admitted, in argument, .that any number of parties to a contract, may use the same seal; but, it is insisted, that they must make their several and distinct impressions, especially when they are opposite parties in the contract. Reference has been made to Comyn's Digest, title Fait, 272, 273-where it is said, “ If there be. mutual covenants between A and B, -of the one part, and C and D, of the other, and B does not seal, yet covenant lies by him against C and D upon this deed; for he is made a party to the deed, and C and D covenanted with him.” Also, that where a deed is written, as if intended to be executed by two persons, jointly and severally, and it be executed by one of them only, it will bind him, though not executed by the other.

Reference has also been made to Sheppard’s Touchstone, where the principle is recognised that “ If there be twenty to seal one 'deed, and they all seal upon one piece of wax, and with one seal, yet, if they make distinct and several prints, this is a very sufficient sealing, and the deed is good enough.”

It is true, the cases here given, are slightly different in respect to the manner of1 the execution, from the one under consideration; but, they are to be regarded only as instances of informality, which affect *57not tlie validity of the instrument; they do not prove that there can be no other irregularities of execution, which are equally immaterial.

The true doctrine is more fully explained in Phil. Ev. 1 v. 416. There, the principle is maintained, that where it is intended that several shall execute the same deed, one may seal for the rest, with their consent, and the deed will be as binding as if every one had put his several seal.a As, “ where one of two defendants, in the presence of the other, and by his authority, executed a bill of sale for. them both, the two defendants being partners in the transaction, but there was only one seal, and it did not appear whether the seal had been put twice upon the wax, the Court of King’s Bench held, that no particular mode of delivery was necessary; and that it was-sufficient, if a party executing a deed, treated it as his own.”

The principle of the decision,, in the case alluded to, appears to have rested mainly on the circumstance, that the deed had been executed by one of the parties for himself, and the other, in presence of both. This rule, is held to be applicable to all deeds at common law, and that such sealing will bind the parties, by whose authority the deed is executed. But the. rule does not extend to deeds executed under a power, where the authority must be strictly and literally pursued.

In Ludlow vs. Simons,b and in MacKay vs. Bloodgood,c it was ruled, that several persons may bind themselves by one seal.

In relation to the case before us, it may be remarked, that the circumstance, of the instrument having expressed the intention of both parties, to execute it under their hands and seals — of its having contained .mutual stipulations, binding both — and of its having been signed and sealed by the party of the first part; *58then the execution at the same time by the other party, is a sufficient indication of the intention of the second party to execute it according to his import, and to bind, himself with the same solemnity that he received the obligation of the other party. In legal contemplation, he is presumed, instead of affixing a se--eond seal, to have adopted the one already annexed.

The judgment must be affirmed.

4 Term. ReP. 314

2 Caine’s C. E. 1.

9 Johns. Rep. 285.