Warring v. Williams , 25 Mass. 335 ( 1829 )

Parker C. J.

delivered the opinion of the Court. This case differs materially from the two preceding. The defendant was not present at the time of the delivery, nor during the transactions between the other parties to the instrument. And it is found, that he gave no express authority, nor any subsequent assent to the instrument in its present form as a deed. He had in the morning signed the paper in blank, on which the instrument was written, and had given it to his brothers, with the intention to be bound with them to indemnify. Any simple contract which might have been written over his name, would bind him ; so that he cannot object to it, on the ground of its being joint and several. But there is a technical difficulty in holding him on this form of contract by deed. The general tenor of the books is, that an authority by deed is necessary to create an obligation by deed for another.¹

The case of Ball v. Dunsterville, 4 T. R. 313, which is relied on by the plaintiff’s counsel, is not sufficiently clear to sustain this position, as the party who denied the deed in that case was present when it was sealed for him, and it might therefore be considered to be his own act. The case of Steiglitz v. Egginton, 1 Holt’s N. P. Rep. 141, is strong, perhaps too strong, in favor of the contrary position. We decide nothing more, than that it is necessary that the agent who affixes the seal, should have authority therefor; and that the signature in blank does not authorize any thing beyond a simple contract.²

Plaintiff nonsuit.

1 See Reed v. Van. Ostrand, 1 Wendell, 424; Hartford v. M'Nair, 9 Wendell, 54; Blood v. Goodrich, 9 Wendell, 68; S. C. 12 Wendell, 525; Cooper v. Rankin, 5 Binney, 613; Gordon v. Bulldey, 14 Serg. & Rawle, 331; Berko lev v. Hardy, 5 Barn. & Cressw. 355.

2 A paper signed and sealed in blank with verbal authority to fill it up, which is afterwards done, is void as to the party so signing &c., unless he afterwards deliver it, or acknowledge and adopt it. Gilbert v. Anthony, 1 Verger, 69; Wynne v. Governor, id. 149; Byers v. M‘Lanahan, 6 Gill & Johns. 250; Perminter v. M-Daniel, 1 Hill, 207; Boyd v. Boyd, 2 Nott & M-Cord, 125; United States v. Kelson, 2 Brock. 64; Ayers v. Harness, 1 Hammond, 368; M‘Ree v. Hicks, 3 Dev. 379. But see Wiley v. Moore, 17 Serg. & Rawle, 438.