Opinion
(August Term, 1847.)
1. In an action of debt on a covenant, proof of the handwriting of the obligee, together with possession by the obligee, is evidence from which the jury may presume a delivery, in the absence of proof to the contrary.
2. The circumstance of there being three seals affixed, without any names before them, is not sufficient to rebut the presumption of delivery or to show that those who did sign did not intend that the covenant should not be delivered until the other persons signed it.
3. A covenant was executed by B. and C. reciting that whereas A. had loaned to D. $1,600 and D. was desirous of securing the same, they, B, and C., bound themselves to A. that if D. did not pay the debt before 30 February, 1844, they would pay it at the time stipulated and waive notice. This is not a mere guaranty, but an absolute promise to pay the money if D. did not pay it at the time stipulated, and no notice was necessary.
APPEAL from MECKLENBURG Special Term in November, 1846; Pearson, J.
This action is brought on the following covenant: "Whereas H. B. Williams hath this day advanced for W. J. Alexander and Nat. W. Alexander the sum of $1,600, and whereas the said Alexanders are desirous of securing the said Williams in the payment of the same: Now, we, the undersigned in the event the said Alexanders should fail well and truly to pay the said Williams the sum aforesaid on 30 February, A.D. 1844, do for value received hereby covenant, promise, and agree to and with the said Williams to pay the same; and we hereby agree, in the event the said Alexanders should pay the same at the time stipulated, to waive notice thereof. Given under our hands and seals, 30 August, 1843." The covenant was signed and sealed by the defendants and M. Hoke, and there are three other seals without any names before them. There was no witness to the deed, and no other evidence of (385) its delivery than its being in possession of the plaintiff and produced by him on the trial. The plaintiff offered in evidence a single bill under seal, executed by W. J. Alexander and N.W. Alexander, for $1,602.37, payable to the plaintiff six months after date, and dated August, 1843, but on what day does not appear. The reading of this bond was objected to by the defendants, but admitted by the court. The action was brought 5 August, 1844. The covenant was admitted in evidence upon proof of the handwriting of the defendants. The defendants alleged that the covenant was to have been signed by three other solvent persons before it was to be their deed, but gave no evidence to that effect. The recovery was opposed on three grounds: first, that there was no sufficient proof of the execution of the covenant; secondly, that there was no evidence that the sum guaranteed by the covenant had not been paid by the Messrs. Alexander; thirdly, that the bond should not have been admitted, and, without it, there was no evidence that the sum stated in the covenant was advanced by the plaintiff to the Messrs. Alexander. W. J. Alexander was produced as a witness, and on his examination stated that he borrowed the money from the plaintiff and agreed to give the guaranty of the defendants with W. Hoke. The objections were all overruled and a verdict rendered for the plaintiff. From the judgment thereon the defendants appealed.
J. H. Wilson for plaintiff.
Boyden and Iredell for defendants.
We concur with his Honor in the court below, and for the reasons he assigns. Proof of the handwriting of the defendants, together with possession by the plaintiff, was evidence from which a jury might presume a delivery by the defendants in the absence of any proof to the contrary. Vanhook v. Barnett, 15 N.C. 268; Blume (386) v. Bowman, 24 N.C. 338. The latter case sustains the opinion of his Honor, that the circumstance of the three seals affixed, without any names before them, was not sufficient to rebut that presumption or to show that the defendants did not intend that the covenant should not be delivered until other persons signed it. In that case not only were there three vacant seals, but the name of another obligor in the bond who did not sign it. The second objection is founded upon the idea that the covenant was a guaranty, on the part of the defendants, of the repayment of the money borrowed by the Messrs. Alexander. Such may have been the intention of the parties, but such certainly is not the effect of the deed. It is, on their part, an obligation to pay to the plaintiff the money mentioned in it if on 30 February, 1844, the Messrs. Alexander did not pay it. This condition is inserted for their benefit, and is to be proved affirmatively by them. To enable the plaintiff to recover in this action, it was not necessary for him to have made a demand on the Messrs. Alexander or to prove that they had not paid. The obligation of the defendants to pay became complete upon the expiration of the time within which they, the Alexanders, were to make payment, and their failure to do it. Gardner v. King, 24 N.C. 300. The introduction of the bond given by the Messrs. Alexander was entirely harmless and of no effect. If it was intended by the plaintiff as evidence to prove the sum borrowed, the recital in the covenant was sufficient, and the bond was, therefor, irrelevant. If any error was committed by suffering its introduction, it was entirely redeemed by the instructions given to the jury as to their measure of damages, if they found for the plaintiff. We concur with his Honor on all points ruled by him.
PER CURIAM. No error.
Cited: Devereux v. McMahon, 108 N.C. 146; Whitman v. Shingleton, ibid., 194; Herndon v. Ins. Co., 110 N.C. 284.
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