Summary
stating that a dispute over the ownership of a seal is a jury question
Summary of this case from Leciejewski v. Southern Entertainment Corp.Opinion
(December Term, 1830.)
Where an instrument is signed by two persons, and but one seal is affixed, ordinarily it is to be taken as the deed of that party only whose name is written nearest to it. But it may be shown by proof, either on the face of, or dehors the instrument, that the other party adopted the seal.
ASSUMPSIT upon a written instrument in form of an indenture of apprenticeship. It was signed by the plaintiff and defendant. There was but one seal to the instrument, which was placed over the name of the plaintiff, his signature being the first. Upon the opening of the case, STRANGE, J., thinking that an action of assumpsit could not be sustained on the instrument, nonsuited the plaintiff, who appealed to this Court.
Winston, for plaintiff.
No counsel for defendant.
FROM PERSON.
The nonsuit, I think, was premature. I understand it to have been ordered upon the production of the instrument, and before proof by the plaintiff that the defendant had not sealed it. I do not doubt that more than one person may adopt the same seal. But that is to be shown by evidence. Upon the face of the paper the seal is to be taken as that of a person whose name is next to, or written to it. Such is the course of business. But yet the defendant might show that it was his, and the plaintiff might rebut that by other evidence. In which event, it would be a case for the jury. But I understand the record to state in effect that the Court ruled upon the face of the paper in exclusion of all evidence. I do not concur in that, because I conceive (494) it was a simple contract or a deed, as the defendant did or did not adopt the seal at the time of executing. Unless he acknowledge it as his seal, it was not his seal. It may be that it was executed by the parties at different times. The seal may have been affixed after the first signature, when clearly it would be that of the party making it. Or one may have affixed it and the other afterwards signed. It seems to to me that in such case a mere signature is not to be taken as a sealing, unless the party declare the seal already made to be his own.
HALL, J., concurred.