15 W. Va. 64 | W. Va. | 1879
delivered the opinion of the Court:
On the 9th day of April, 1872, Henry Keller brought an action of debt against Thomas McHuffman and David M. Riffe for $200.00, debt and damages $200.00, in the circuit court of Monroe county. The declaration was
'‘Thomas McHuffman, [Seal.]
“Security — David M. Riffe.”
Hext, on the part of the defendant, as evidence, the defendant, Rifle, stated that in signing said instrument he did not adopt as his seal the scroll thereon, but that he signed thesame as his promissory note. It is an agreed fact that said Riffe could not make the affidavit prescribed by section 27 of chap. 106 of the Code of West Virginia; but that the said Thomas McHuffman, who signed said bond, could’make said affidavit. It is further agreed that David Keller could not make said affidavit
The error assigned by defendant, Riffe, in his said petition and brief of his counsel is that the court erred in not sustaining his reliance upon the plea of non est factum and the statute of limitations of five years, and in not rendering judgment in his favor upon the facts agreed.
This assignment of error upon the facts agreed involves the question, 1st: Is the paper-writing, sued on, the bond or single bill of the defendant, Riffe ? A sealed instrument in the singular number, but signed and sealed by by two persons, is joint and several. As for instance the writing begins, “ I promise to pay, ” &c., and concludes “ I bind myself, my heirs,” &c. without mentioning any name in it, and is signed and sealed by both defendants. Holman and Wilson v. Gillian, 6 Rand. 39 ; 2d Book of Tucker’s Commentaries, vol. 1 275 ; Peake’s Nisi Prius 130; Holt’s Nisi Prius cited in 1 Bam. & Cres. 407. In the case of Bohannen v. Lewis, 1 Mon. (Ky.) 376, the action was covenant on a writing in the following words : “ For value received, I promise to pay John Lewis ¿£50
(Signed) “ George BohaNNEN, [Seal.]
“Julius BohaNNEN.”
The breach assigned was the non-payment of the horses. The declaration in setting out the instrument did it thus: “ The said defendants, by their certain covenant in writing signed with their proper names, and sealed with the seal of the defendant George, and which is now to the court here shown,” &c. The defendant craved oyer and demurred, in which the plaintiff joined, and the demurrer was sustained. But the plaintiff then obtained leave to amend his declaration, and did so by striking out the words “ seal of the defendant, George,” and inserting in lieu thereof, “ seal of the defendants.” The defendants still retained their oyer and again demurred to the declaration, which the court then overruled; and the correctness of this last decision was presented in this case to the Court of Appeals of Kentucky.
Judge Mills, who delivered the opinion of the court in the case, at page 377 says: “ It is evident, the first de-cisión of the court was correct. For the plaintiff having declared in covenant against both, and stated the deed to be sealed by one, could not sustain his action jointly. As to one it was a covenant, and as to the other, a simple contract, and as the seal is essential to support covenant, and the defendant liable on simple contract could not be joined in covenant, it is clear the action could not be supported. But as the plaintiff amended his declaration, and stated it to be sealed by both, his attitude was made far better. If the writing was not sealed in fact by both, it is evident that his action therein could not be aided by this statement, which sets out a writing not according to the truth. The only question, then, which can arise in
In the case of Bowman v. Robb, 6 Barr (Pa. St.) 302, it was held according to the syllabus, that “ where the obligation of two parties, which concluded with the words, witness our hands and seals, had but one seal, which was affixed to his name, by the party who drew and first exe
“Orliu Forsyth,
- — -[l- s-]
“Joshua Bowman.”
It appeal’s that after the plaintiff had proved the signatures of Forsyth and Bowman to the single bills by a witness who was acquainted with their handwriting, the defendant read to the jury the deposition of said Orlin Forsyth, who testified that a short time prior to the 4th of May, 1833, he applied to the plaintiff, Robb, for a loan of money for one year — that he told him he would give him good security for it — he thought the name of Joshua Bowman was mentioned as security ; that on the 4th of May, 1833, the plaintiff came to his (Forsyth’s) store, and loaned him $350.00 That he gave him as a payment for such loan five notes, four for $75.00 each, and one of $50.00, payable one year after date, signed by himself and defendant, Bowman, as security; that when the plaintiff told him (Forsyth) the amount he could loan him, he went to his desk and filled up five printed notes — that he went to the barn of said Bowman to get his name to the notes, and he and Bowman went to Bowman’s house — that the notes were presented to Bowman and signed by him; that there -was no person
In the case of Norvell use, &c. v. Walker, 9 W. Va. 447, it was held by this Court as follows: “W. and N. entered into a written agreement, which concluded with the words ‘witness the following signatures and seals’ and
The instrument, on which the last named case was founded, is dated the 20th of August, 1871. The 12th paragraph of section 17, chapter 16 of the Code of Virginia, Avhich was in force in this State at the time the writing in the case at bar was made, provided among other things as follows : “And in any case in which the seal of any natural person shall be required to a paper, it shall be sufficient for such person to affix to such paper a scroll by way of seal.” And the 15th section of ch. 13 of the Code of this State of 1868 among other things provides as follows: “When the seal of a natural person is required to a paper, he may affix thereto a scroll by way of seal, or adopt as his seal any scroll, written, printed, or engraved, made thereon by another.” The decision iq the case of Norval v. Walker, (Ubi Supra) was made under the section of the Code of this State of 1868. It has been held by some courts, that although in the body of the writing it is said that the parties have set their hands and seals, yet it is not a specialty unless it be actually sealed and delivered, Taylor v. Glassel, 2 Serg. & R. 504; opinion of Chief Justice Tilghman, Parks v. Hensett, &c., 9 Leigh 511, 514, 515, 516; Smith et al v. Henning, 10 W. Va. 630, 631, 632, 633, and authorities therein cited.
It is also laid down by Judge Parker in Parks v. Hensett, and Taylor v. Glassel, 2 Serg & R., “that the common law does not require that the party should anywhere in the instrument speak of a seal, but only that it
Judge Parker also refers to former decisions of the Court of Appeals of Virginia upon this subject and says : “There may be some loose expressions to be found in them giving countenance to the objection ; but when the cases themselves are carefully examined I am persuaded they will not be found to support it.” He then refers to the cases naming them. See also on this point Ashwell v. Ayers, et al., 4 Gratt. 283 ; Smith et al v. Henning, 10 W. Va. 600, 630, 631, 632, 633.
In the case of Rankin v. Roler et al., 8 Gratt. 63, in the Court of Appeals of Virginia, where an instrument binding the parties thereto to pay a sum ofmoney purports to be under their hands and seals, but it is signed by one of the parties without a seal, and by the other parties with seals to their names. Held, upon demurrer, that one action of debt may be brought against all the parties.” This was an actiou of debt, brought upon the following paper: “$485.00. One day after date we promise and bind ourselves, our heirs, &c., to pay to George Rankin or order the sum of $485.00, for value received. As witness our hands and seals.
“Roler & Crawford,
“Benjamin Weller, [Seal.]
“John W. Roler, [Seal.]”
The court in its opinion in this case delivered by Judge Moncure at page 67 says : “The defendants contracted together with the plaintiff for one and the same act, to-wit, the payment of the debt in the declaration mentioned; and it appears on the face of the contract, that they intended to become jointly liable. The fact that there is no seal or scroll annexed to the signature of Roler & Crawford, and that there are scrolls annexed
I do not at all feel authorized to conclude from this decision, that if the declaration had alleged in proper form, that the defendants by their writing obligatory signed, &c., and sealed with the seals of the defendants promised to pay to the plaintiff, &c. and oyer had been craved of the single bill declared upon, and the declaration demurred to by the defendants or any of them, that the court would have sustained the demurrer, but might have done as the Court of Appeals of Kentucky did in the case of Bohannen v. Lewis, 3 Mon. 376, (Ubi Supra), viz: For on oyer and demurrer the court cannot infer from there being but two seals and three or more signers, that but two in fact sealed the instrument ; and the party who contends that it is not his seal must reach the fact by way of plea controverting the allegation
Judge Daniel in his opinion in the case says : “If the plaintiff had in this case declared on the paper, of which proferí is made, as the joint bond of Roler & Crawford, Weller and John W. Roler, I am not prepared to say that such a declaration might not have been good ; for though there are but two scrolls to the paper, one of which is opposite to the name of Weller and the other, opposite to the name of John W. Holer, and though the name of Roler & Crawford are signed as a firm, yet it might be that each of the last named parties signed the paper, and adopted one of the scrolls upon it as his seal, or that one of them executed the paper as the bond of each, being duly authorized by the other so to do. The plaintiff however does not so treat the transaction, and most probably because the facts of the case could not justify him in so treating it.”
In the case of Oldham & Bailey, v. Hunt, 5 Humph. (Tenn.) 332, it was held “that a joint action of debt lies against the persons who have bound themselves by the same writing to pay a sum of money, the one with and the other without a seal.” The precise character of the writing on which this case was founded, does not appear in the report — thatis, it does not appear whetherthe Avriting was : “I promise to pay,” &c., or “Ave promise to pay,” &c. But Judge Reese delivered the opinion of the Court in which he says: “This is an action of debt brought upon an instrument which, as to Oldham, is a promissory note, and as to Bailey, is a bill single; that is, Bailey annexes his seal, and Oldham does not. The declaration contains three counts; the first, describing the instrument as a promissory note ; the second as a writing obligatory, and the third, as a paper-Avriting, which it sets forth in all its words and figures. The defendants demurred,
In this case oyer was not craved of the writing declared upon ; and the demurrer seems to have been to the whole declaration and not to each count. I do not understand the court to have held in this case on the demurrer that the second count was a misdescription of the writing sued upon, or that upon the facts alleged in the second count, taking them as true, would not constitute a good count. The second section of chapter 143, of the Code of Virginia of 1849, and the same section and chapter of the Code of 1860, which was in force with us when the writing sued on in the case at bar was made, is as follows : “2. Any writing, to which the person making it shall affix a scroll by way of seal, shall be of the same force as .if it were actually sealed.” This section is omitted in the Code of this State of 1868 from chapter 98 thereof, which is otherwise substantially the same as chapter 143 of the Code of Va. of 1860; but there is in the Code of 1868 of this State in section 15 of chapter 13, as we have seen, the provision that “when the seal of a natural person is required to a paper, he may affix thereto a scroll by way of seal, or adopt as his seal any scroll, written, printed or engraved, made thereon by another.” These last words “or adopt as his seal any scroll, written, printed or engraved, made thereon by another” are not in the Code of 1860, nor in the Code of 1849. (See 12th paragraph of section 17 of chapter 16 of Code of 1860.)
“Pittsboro, January 1, 1835.
“One day after date, I promise to pay Nathaniel Clegg or order, the sum of $277.51, value received, in lumber.
“P. Lemessurier, [Seal.]”
In this case the first count was in the usual form upon two writings obligatory of which proferí was made. The second count stated that the defendant by his certain writing subscribed by him, and to which he affixed a scroll by way of seal, of which proferí was also made, promised, &o. The defendant craved oyer of -the writings, and demurred to each count; and the court below sustained the demurrer. This judgment was affirmed unanimously by • the Court of Appeals. Judge Lee delivered the opinion of the Court and considered and refers to the cases of Baird v. Blairgrove, ex’r., 1 Wash. 170; Austin’s adm’r v. Whitlex’s ex’rs, 1 Munf. 487; Anderson v. Bullock, &c., 4 Munf. 422; Jenkins v. Hust’s commissioners, 2 Land. 446; Peasley v. Boatwright, 2 Leigh 195; Turberville v. Bearnaud, 7 Leigh 302; Crannell v. Tate’s ex’r, 7 Leigh 301; and also Parks v. Hawlett, 9 Leigh 511; Pollock v. Glassel, 2 Gratt. 439; Ashwell v. Ayres, 4 Gratt. 283. “The last named three cases” he says, “may, I think, be readily distinguished from those we have been considering” (that is those immediately preceding),” however broad the language of some of the judges whose opinions are given may appear tobe ;
Judge Lee at page 119 says: “Judge Baldwin in his opinion in the case in 2 Gratt. 439 (Ubi Supra), also distinguishes between cases like that of Parks v. Hewlett, and Ashwell v. Ayers, (decided sometime afterwards) and the cases to which the decisions he had alluded to should apply ; but there is nothing in the opinion, when fairly considered, and nothing in the case, or that of Parks v. Hewlett, or that of Ashwell v. Ayres, which overthrows or in any material respect disturbs the rule established by the previous decisions of this Court; and that rule I think may be thus stated; that in cases of contracts in writing, like that in the present case, which might have been intended to be, indifferently, simple contracts or sealed instruments, and in which the question is as to the character of the instrument and its legal effects and consequences, the fact that a scroll may be affixed to the name of the maker, with or without the word seal written within, is not of itself such a recognition of the scroll for a seal as will make the writing a sealed instrument ; and that evidence dehors the paper cannot be admitted for the purpose of showing that it was in fact intended to be such an instrument. That many of our sister States have adopted a different rule, furnishes no sufficient reason, in my judgment, why we should reverse our course of decisions or change the rule they have prescribed.”. And at page 121, he says: “I have only to add in conclusion, that whether the objection is made on oyer and demurrer, or on motion to exclude the paper at the trial, the principle, as it seems to me, is precisely the same.”
The case of Smith et al. v. Henly, was similar in principle to that of Ashwell v. Ayres, 4 Gratt. 283, and not of the character of Clegg v. Lemessurier, Ubi Supra. But it will be perceived that the ease last named in 15 Gratt is unlike the case at bar. In that case the scroll with
As the case stands before us I suppose (though I have doubts) I may consider it as though the plea of non est factum was filed, such appearing to be the substance of the agreement of the parties as entered of record, and as being filed any other plea or count in the declaration, which might have been filed, applicable to the case made by the agreement of the parties.
A promissory note commencing “I promise to pay” and signed by two persons is several or joint. Marsh v. Wood, 1 Peak. N. P. C. 130; Clarks v. Blaclcstock, 1 Holt 474, (3 E. C. L. 159); Hemonway v. Sterne, 7 Mass. 58; Holman v. Gillian, 6 Rand. 39, opinion of Court and authorities there cited; Van Alstyne v. Van Slyck, 10 Barb. 387. We have seen that in Virginia, an obligation commencing “I promise to pay” and concluding “Ibind myself my heirs,” &c., and signed by two persons was adjudged joint and several; the court considering that an instrument in such terms should not cease to be joint and several, merely because it is sealed, 6 Rand. 39. If the writing sued upon in the' case at bar be considered a single bill as to both defendants, then it is a joint and several obligation, and the parties thereto may be sued jointly or severally. If it had no seal to it, it would be a joint and several promissory note, and the parties might be sued thereon jointly and severally. These propositions being true' and established by authority, it seems to be clear that if said writing is in fact the single bill of defendant McHuffman and the promissory note of defendant Riffe, still the promise to pay should be regarded as joint and several as to the defendants, arid that the plaintiff had the right to sue the defendants thereon jointly
“ In consideration of one dollars in hand, to me paid by Martin M. Garner, I hereby covenant and agree to become the surety for the faithful performance of said Garner’s' covenants as expressed in the above said lease. Sealed with my seal, and dated this 3d day of April, 1845.
“ John P. Van Slyck. [l. s.]
“Christopher H. Garner.
“Witness — S. V. Cady.”
This writing seems to have been annexed to the lease therein named; and the lease was set out in the declaration. The action was against John P. Van Slyck and Christopher H. Garner jointly. Judge Parker in delivering the opinion of the Court at pages 387 and 388 says: “The obligation of the defendants was clearly a joint and several one. When a promissory note is written, CI promise to pay’ signed by two persons, they are jointly and severally liable (7 Mass. 58; Story on Promissory Notes 957.) But it is objected that there is but one seal, and that therefore both defendants cannot be jointly liable in covenant. The oyer shows but one seal, and that is opposite the signature of Van Slyck, the first signer. When there are several persons executing a deed, it is not necessary to affix a separate seal for each, provided it appear that the seal affixed was intended to be adopted as the seal of all. (Perkins, 59 §134; Sir William Jones Rep. 268; 1 Dall. 63; 3 Mon. 376; 2 Dev. 493.) It was so held, when a deed was executed by an attorney for several persons. (Townsend v. Hubbard, 4 Hill 351.) And where one of two partners executed
In the ease of Slatter v. Cowan, 7 Gill and J. 284, the writing sued on concluded as follows: “In witness of which, we have hereunto set our bands and .seals, this 25th day of the 4th month, 1820.”
“Thomas P. Slatter, [l. s.]
“John G. Cowan.
“Teste: — ¥m. H. Pleasants.”
In this case the Court held, as appears by the syllabus, that “whether a written contract is a specialty, or a parol contract of a party to it, depends upon the fact whether it is sealed or not by such party, or some per-, son for him and with his authority. The same contract may be the specialty of one, and the parol agreement of another party to it. When there is but one seal to a contract, it is presumed to be the seal of the party whose signature is prefixed to it; but upon proof of it being made by the authority of the other parties to the contract, it will be held to be their seals respectively.”
In the case of Yarborough v. Menday, 2 Dev. (N. C.) 493, it was held “when an intrument is signed by two persons,' and but one seal is affixed, ordinarily it is to be taken as the deed of that party only whose name is written nearest to it. But it may be shown by proof, either on the face of, or dehors, the instrument, that the other party adopted the seal.” Judge Ruffin in this case said: “Upon the face of the paper, the seal is to be taken as that of the person whose náme is next to, or written to it. Such is the course of business.” But I should remark here, that the rule in North Carolina is not the same as that established in 15 Gratt. (Ubi Supra), or at least it would seem so from what appears in the opinion of Chief Justice Henderson in that case at page 494.
I take it as being well settled in Virginia, that although in the body of the writing it is said that the
As before stated and shown the decision in Norvell v. Walker, 9 W. Va. was upon oyer and demurrer only. The decision upon oyer and demurrer in overruling the demurrer in that case is supported by the decisions in 3 Mon. and 10 Barb, upon oyer and demurrers, but perhaps in part at least for different reasons assigned. But what rule should govern in a case like.the case at bar, touching the writing in question upon the trial, considering the case as though the plea of non est factum had been filed by the defendant, Biffe, (though as before stated I have some doubts whether it ought to be so considered as the case is presented) denying that the writing in question is his deed ? In Virginia and in this State more importance . and significance is given to the words “ witness my hand and seal” or “we have hereunto set our hands and seals” or “ as witness our hands and seals” and the like found in the body of a writing of the character of that in question than is given to the same or like language in similar writings in many of the other States of the Union. With us, as before stated, although a paper-writing of this character be signed and have a scroll or seal affixed, still under no circumstances will it be deemed to be a specialty, unless the seal or scroll is recognized in the body of the the writing; nor will it be recognized as a specialty,
In the case of Slatter v. Cowan, 7 Gill & J. at pages 286 and 287 Judge Buchannan says: “The words ‘ In testimony whereof I have hereunto .set my hand and seal ’ or ‘ we have hereunto set our hands and seals’found in the body of, an instrument of writing are not sufficient to constitute it the deed or specialty of the party named, where seal is not affixed. On the other hand, it is the deed of the party narqed, who has sealed and delivered it, although there be no such words in the body of the writing” The last clause of the foregoing remarks of Judge Buchannan is certainly not the law in Virginia or in this State, touching instruments like that in question. By the common law one piece of wax will suffice, having the seal of each upon it, but to make it his deed, the seal of each must be affixed, either by himself or some other person acting in his behalf, and having authority to do so. I have seen no case and none has been shown in which, where there were two or more parties signed the writing, the seal or scroll of one with nothing more was taken or held to be the seal or scroll or adopted seal or scroll, even though in the body of the writing it said “ witness my hand and seal.”
And I now proceed to ascertain and determine whether the plaintiff's action against the defendants, or either of
Under the provisions of the 10th section of chapter 136 of the Code of 1868 of this State either of the defendants to a joint action, if such had been brought, could have procured the dismissal of such action as to all the defendants upon making th% required affidavit, if the proper affidavit was not filed on the other side, and this affidavit it is agreed could have been made by the defendant, McHuff-man, and could not have been made by Keller deceased, as is agreed. The fact that one of the defendants could take the test-oath would have had the same effect before the courts then declaring the law in this State and according to the terms of the act, as if both could have taken it. Counting out the time that is mentioned in the said act of February, 1873, this joint action was not barred as to the defendants or either of them at the time it was commenced. The counsel of the defendant, Riffe,has argued
After duly considering the plausible argument of defendant Rifle’s counsel and reviewing the opinion of this court I do not feel satisfied, that the said act of February, 1873, is unconstitutional, or that the decision of this Court in the case of Huffman v. Alderson’s adm’r, affirming the constitutionality of said act, is unsound and unsupported by reason or authority. Should I hereafter become satisfied on further reflection and on receiving additional light that the decision is erroneous, and that said act is unconstitutional, I will not hesitate so to declare on a proper occasion.
Upon the whole it seems to me there is no error in the judgment of the circuit court of Monroe county, rendered in this cause, on the 17th day of October, 1877; and the said judgment must therefore be affirmed with costs and damages according to law in favor of the defendant in error, Henry Keller, administrator of David Keller, deceased, &c.
Judgment Affirmed.