Jones v. Horner

The opinion of the court was delivered, by

Asnew, J.

— The 1st assignment of error was not urged, so far as it involved the question of the seal to the note, which the agent testified he executed and delivered under a parol authority. It is conceded by the counsel not to be tenable. The precise point has not been determined in this state, so far as I know, whether an executory contract under seal, made in pursuance of a parol authority, is sufficient to support an action against the principal. The nearest approach is to be found in Baum v. Dubois, 7 Wright 265. That was not the case of a direct action on the sealed instrument, but it was certainly held there the writing was the contract of the principal, and that the seal only was unauthorized. There are a number of cases, however, in which writings under seal, made under a parol authority, have been sustained as the execution of the authority: Dubois’s Appeal, 2 Wright 231; Hennessey v. Western Bank, 6 W. & S. 310; Deckard v. Case, 5 Watts 22; Grier v. Hood, 1 Casey 433. See also 1 Am. Lead. Cas. (4th ed.) 605 to 612. A seal in this state has no solemnity of form, being made by the mere gyration of a pen, and often affixed by persons ignorant of its legal effect. Still it impresses qualities upon the instrument which an agent by parol cannot impart. An action of covenant to which the Statute of Limitations interposes no bar, certainly cannot be maintained against the principal upon a writing thus sealed. But why may not assumpsit be maintained, disregarding the seal as a mere excess? There is no good reason why the principal should be wholly discharged because of the ignorant use of the seal. The tendency of modern decisions is this way, though in this case the concession of the counsel renders this decision unnecessary.

The authority of Mr. Booth to make the note for the defendant was fairly left to the'jury and found by them, and we think there was sufficient evidence of authority and also of ratification to be submitted. If the finding was contrary to the weight of the evidence, and this it was the tendency of the argument before us to prove, the error could be corrected only upon a rule for a new trial.

The remaining question is, whether the writings in evidence were sufficient to show that the consideration of the note was one independent of the contract of purchase, or in part execution of its terms. The letter of Mr. Jones of December 27th 1864, expressly requests a further extension o^ the time of payment of the purchase-money, and authorizes Mr. Booth to arrange the matter for him for a reasonable bonus. The agreement of December 30th 1864, executed at the time of giving the note, expressly contracts to give a further extension of payments at the further request of Jones, and recites the former extension. The agreement and note of November 25th 1864, there referred to, are thereby made explanatory of the second arrangement. From all these papers not the slightest doubt exists that the $750 note in suit was given as a bonus for the further extension of the payments, which were to have been made under the contract of purchase by the 1st of January 1865. The parol evidence not contradicting the papers, but being in harmony with them, there was no error in holding in the court below, that on the face of the writings, on which the point was reserved, the note appeared to have been made in consideration of the extension of the time of payment at the instance of the defendant, and independently, of the consideration of the purchase, and consequently the failure of the title alleged in defence of the purchase-contract was no defence to the note. It is too late, after obtaining an extension of time for a new consideration, and enjoying its benefits, to turn back to find a refuge under the defect of the original contract. The parties cannot, after the extension, be placed in statu quo, and it is impossible to say now what injury on one side, and what advantage on the other, might have ensued had the extension not been given.

Judgment affirmed.