Yarborough v. . Monday

Upon this testimony, his Honor ruled the contract to be the deed of the defendant, and thereupon the plaintiff submitted to a nonsuit, and appealed. The law permits two or more obligors to adopt one seal, and it will be the deed of both of them. Ball v. Dunsterville, 4 Term, 313; 1 Starkie, 332; 2 Thomas' Coke, 234. If the plaintiff sealed the instrument and delivered it, then it became his deed, but if the defendant signed the same instrument and did not seal it himself, nor adopt the seal of the plaintiff, then the instrument, as to him, would not be a deed, but a simple contract in writing, and assumpsit would be the proper action to be brought on it. Evidence was introduced as to that point, and it was a proper question for the jury whether the defendant intended to adopt the seal thus affixed, and did adopt it as his seal, or not; if he did, then it was his deed; if he did not, then it was his simple (421) contract, and the action was properly brought. The judge decided both the law and the fact; he should have left it to the jury to determine whether the defendant intended to adopt the seal, and did adopt it, for these were questions of fact. Whether the scrawl affixed was in this state a seal certainly was a question of law to be determined by the court; but whether the defendant placed it there, or adopted it as his seal if placed there by the plaintiff or any other person, were questions for the jury. We think the judgment should be reversed.

PER CURIAM. Judgment reversed.

Cited: Davis v. Goldston, 53 N.C. 30; Pickens v. Rymer, 90 N.C. 283;Baird v. Reynolds, 99 N.C. 472.