Stetson v. Patten, 2 Me. 358

Stetson v. Patten

2 Me. 358 | Me. | 1823

Mellen C. J.

delivered the opinion of the Court.

It is agreed that Simeon Stetson had not any authority under the hand and seal of the plaintiff, to execute the instrument declared on ; and it therefore was not- the deed of Amasa Stetson« *360No authorities need be cited to shew that when an instrument under seal is executed by attorney, the attorney must be authorised by deed under the hand and seal of the principal; This is admitted by the counsel for the plaintiff, but he contends that in consequence of certain acts which have been done by the principal since the'execution of the instrument, it has been sanctioned and adopted by him, and thereby has become his deed. The circumstances relied on as proof of such ratification are, his acceptance of the indenture from the hands of: his brother after its execution, and the indorsement on the back of the instrument of money received from the defendants on account of the contract. With respect to these facts, they /cannot amount to any thing more than a sanction and ratifica-' tion made by parol; and suck ratification could not be more' availing than a parol authority given before the instrument was signed, which, as we have seen, is of no importance. The plaintiff therefore cannot prevail on this ground.-

But it is farther contended that though the instrument is not the deed of Amasa Stetson, it is the deed of the defendants, and’ they are bound by it, though the plaintiff is not. On examining the instrument it does not appear that Simeon Stetson has in any part of it bound himself personally; and there is therefore no reciprocity in the contract. The defendants have no right of action against any one, upon this contract; — and as the equity of the case seems therefore to be with them, so, wc' apprehend, is the law also.

in the case of Soprani & al. v. Skurro, Yelv. 19. it was de-' cided that it must appear in pleading that the lessor as well as the lessee sealed the indenture of demise ;■ otherwise no interest passes, and the covenants do not bind; — and that a bond given by a stranger for performance of covenants in such indenture, is not forfeited by the lessee’s neglect to perform them.

In Hosier v. Searle, 2 Bos. & Pul. 299. the defence was placed on a similar principle, according to the plea in bar ;• but the Court considered that the* defendant was estopped, b}*- the bond he had given, to deny that he had executed the indenture re-ferred to in the bond and plea. But it is clear that the Court would have adjudged the defence a substantial one, had there been no estoppel in the case.

*361Fof these reasons we are of opinion that the action cannot be maintained, and a nonsuit must be entered, pursuant to the agreement of the parties. . ' •