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JACKSON v. MYERS.
on the part of the indorser, to pay the immediate or any succeeding indorsee or bearer, in case of the acceptor or maker's default.” Byles, c. 1, p. 2. If we look at the course of dealing, it is even more apparent that nothing capable of affecting the negotiability of the instrument could have been designed. In lieu of money, which ordinarily the borrower would be entitled to receive, the association gave its note. That the note should be seen to have a substantial guaranty, it bore in the margin a statement that it was issued on a mortgage executed by the payee. The mortgagor was required to indorse it. Issued in place of money, it was expected that it would be discounted, so as to enable the payee and indorser to obtain that use of money which was the only object he could have had in creating an incumbrance upon his property. Such, accordingly, was the consequence. The notes were negotiated like other commercial paper, upon the combined credit of the two parties who made themselves responsible upon it by their signatures – the building association as maker,
the borrowers as indorsers. In addition, the note had the strength derived from the fact that real property, of supposed equivalent value, was pledged for the payment of the debt represented by it — not directly, as in the common case of a mortgage and mortgage note, but circuitously, by being made to the maker, as an indemnity against the consequences of the liability assumed in giving such a note. The effect of the whole was to make the indorser the party primarily liable, while the association stood as an accommodation maker, secured by the mortgage.
But is there any principle or “stubborn rule of law,” which prevents this instrument from having the effect it was designed to have, and which the conduct of the parties shows that they all originally contemplated ? On the contrary, it is a well recognized principle, that if a seal is added to an instrument which does not require it, and the presence of the seal operates to prevent the writing from having the effect it was intended to have, such seal may be treated as surplusage and disregarded. Hunter v. Parker, 7 M. & W. 322 ; Wood v. Auburn f Rochester R. R. 4 Seld. 167; Worrall v. Munn, 1 Seld. 229; Robinson v. Crowder, 4 McCord, 519; Irwin v. Brown, 2 Cranch C. C. 314; Brattan v. Burton f Mills, 1 Chitty's R. 707 ; Eureka Co. v. Bailey Co. 11 Wall. 491 ; Arnold v. Rock River Valley Union R. R. Co. 5 Duer, 208, 215.
There is the more reason for rejecting the seal in this case, because if the board of directors assumed to attach the corporate seal to the note they acted without authority. They had authority to sign the notes, but none to seal them. And not only was it beyond their authority, but the association itself had no right to put a seal to an instrument of that character, issued under the 9th article of its constitution: to do it was ultra vires.
A corporate seal does not prove itself. And to entitle the printed circle in question to be received as the corporate seal of this association, it was necessary to produce a corporate act making it the seal. Nothing less than a vote of the board of directors could amount to such an act, even if it did not require, as it seems it did under the articles, a resolution of the association itself. 2 Phill. Ev. 385, top (edition of 1867); Jackson v. Pratt, 10 Johns. 386 ; Damon v. Granby, 2 Pick. 353.
Even where the seal is proved to be the seal of the corporation, its
JACKSON v. MYERS.
mere presence upon a document does not make the latter the deed of the corporation ; it is necessary to show further that the seal was put there by some one duly authorized to do so. Koehler v. Black River Falls Iron Co. 2 Black, 716; Damon v. Granby, 2 Pick. 352. No evidence was offered of any resolution or other act of the board of directors, authorizing the issue of the note in question, or other similar notes, as sealed instruments, or adopting said seal or imprint as the seal of the said corporation ; there was no evidence at all before the court, upon which it could hold the note to have been sealed by the association.
The presumption, which in this state, since the decision of Trasher v. Everhart, 3 G. & J. 246, has been understood to exist (somewhat in conflict perhaps with the common law, as now recognized in England, as well as elsewhere), that a scroll appearing upon an instrument signed by a natural person, even without words importing an intent to affix a seal, is the seal of such person, never has been held to apply to the case of a supposed corporate seal, and from the nature of the case cannot so apply. Hence, although the rule in Massachusetts, as to the deeds of natural persons, may be conceded to be different from that which has been adopted here, the case of Bates v. Boston f N. Y. Cent. R. R. Co. 10 Allen, 251, - a case of a printed fac-simile of a seal sought to be treated as a corporate seal, — is of undiminished authority. Kinzie v. Chicago, 3 Ill. (2 Scam.) 187.
The printed circle here is not necessarily the seal of the association, any more than the oblong figure, with the word stamp in it, frequently printed upon check blanks, is the actual stamp whose place it indicates. Its presence no more makes the writing afterwards written upon it a sealed instrument, than the red picture of the treasury seal on a national bank note, or on a legal tender note, makes either of those documents a contract under seal.
John Henry Keene, Jr., for the appellees.
Orville Horwitz, being interested, as representing several defendants to cases in the courts of Baltimore city, in one of the questions involved in this case, was permitted to present his views thereon. He argued that the effect of such indorsement on a single bill operates as a mere assignment of the equitable interest in the said bill of the payee or holder, and in the absence of any special agreement to the contrary, and in the absence of fraud, it creates no liability, actual or contingent, against the assignor.
The instrument in question being under seal is not a bill of exchange. To quote the language of Ch. J. Gilpin, in Conine v. J. & B. R. R. Čo. 3 Houston, 299, “ from that day — the time of James the First — to this, no case can be found in the books of a bill of exchange with a seal affixed to it.”
The distinctions between sealed instruments and bills of exchange are too well marked to need repetition or authority. None, however, are better established than the negotiability of bills of exchange and the nonnegotiability of specialties; the transfer by indorsement of bills of exchange, and the assignment of choses in action. Story on Bills, ch. 4, § 61; Glyn v. Baker, 13 East, 515, 516 ; Warren v. Lynch, 5 Johns. 239
JACKSON v. Myers.
Clark v. Farmers' Man. Co. 15 Wend. 256 ; Foster v. Floyd, 4 McCord, 159; Helfer v. Alden, 3 Min. 332.
What, then, is the effect of the indorsement of the name of the obligee of a specialty in blank?
The indorsement in blank authorizes the holder to write over the name of the indorser in blank only the contract implied by law, and nothing more. Tenney v. Prince, 4 Pick. 385 ; Nevins v. De Grand, 15 Miss. 436.
The contract of indorsement on commercial paper becomes a commercial contract, operating as a contingent guaranty where the paper is negotiable ; to any other chose in action it becomes an equitable assignment of the beneficial interest, without recourse to the assignor ; and this is, therefore, the only contract which can be legally written over the blank
sement. Kirkpatrick v. McCullough, 3 Humph. 173; Parks v. Duke, 2 McCord, 380; Folwell v. Beaver, 13 S. & R. 314-316 ; Frevall v. Fitch, 5 Wharton, 325; Patterson v. Poindexter, 6 W. & S. 230, 235; Cummings v. Lynn, 1 Dall. 444; Parker v. Kennedy, 1 Bay, 398; Ex'rs of Garretsie v. Van Ness, Pennington's Rep. (N. J.) 13–24.
To such single bills there are no days of grace, and demand and notice (if any demand and notice can be effective in creating responsibility) should be made and given on the day of actual maturity. Skidmore v. Little, 4 Texas, 301 ; McMullen v. Abbott, 1 Oregon, 258.
Not only so, but the diligence required of the holder of a note, even of a promissory note which is not negotiable, is to demand the amount, as soon as it falls due, of the maker, and, in the event of failure to pay, to sue him immediately. Swift's Ev. 347.
The Code in the 8th section of the 9th article would seem to point out the only cases in which the assignor of a specialty can be held responsible to the assignee.
ALVEY, J., delivered the opinion of the court.
Whether the note sued on is to be treated as a negotiable promissory note, or as a single bill, under the seal of the corporation, the maker, is the main question in this cause, and the one upon which all the other questions depend. According to the rulings of the court below, the instrument was held to be a single bill, and consequently the appellees were not liable on a mere indorsement of the note, as they would have been if the note had been a negotiable promissory note, instead of what it was held to be.
The appellees being sued, and sought to be held liable, by reason of their indorsement of the note, if the instrument be in reality a specialty, though in the form of a promissory note, no obligation or liability arose from the mere indorsement of it, either by the statute or the custom of merchants. As a sealed instrument, it could be assigned, as required by the statute, to enable the assignee to sue in his own name; but then no liability would arise by the assignment, upon which the assignor could be held responsible, unless the assignment be made in the manner and form prescribed by the Code, art. 9, secs, 8 and 9, or unless the assignment embody a separate and distinct contract or undertaking, as in the case of Gist v. Drakeley, 2 Gill, 330. If the indorsement of a sealed instrument be in blank, accompanied by delivery, the party to whom the instrument is delivered may fill up the blank, with a full assignment to himself, and
JACKSON 2. MYERS.
thus become absolute owner, with right to maintain suit in his own name, within the meaning of the statute ; and though the assignment may not be extended until the time of trial, it is regarded, for the purposes of the suit, as having been made in its extended form when the instrument was indorsed ; as was the case in Chesley v. Taylor, 3 Gill, 251.
Here, the note was indorsed in blank by the appellees, who were the payees in the note, and after such indorsement, but before or at the time of the trial, the appellants wrote over the blank indorsement the words, “We hereby indorse and assign the within, and direct payment thereof to be made to Priscilla Lynch,” one of the appellants. This was good as an assignment, upon the assumption that the note was a single bill; and it was all-sufficient as an indorsement in full, treating the instrument as a negotiable promissory note. As an indorsement of negotiable paper it created a liability on the part of the appellees, but as an assignment of a non-negotiable chose in action it created none, and only transferred the right of the assignors, with the power to sue and maintain an action on the note in the name of the assignee. It was in this latter aspect that the court below instructed the jury against the right of the appellants to recover on the indorsement against the appellees.
But is the note a specialty or single bill, as distinguished from a promissory note, made negotiable by the statute of 3 & 4 Anne, ch. 9?" The Building Association that made the note was organized under the present general incorporation law of the state, and by the 9th and 11th articles of its association, it is provided that its board may issue promissory notes on mortgages only, and that such notes shall always be drawn to the order of the mortgagor, who shall, in all cases, indorse the notes thus drawn. The president, secretary, treasurer, and three directors, are authorized to sign all promissory notes issued by the association. The note in question was issued on the mortgage of the payees of the note, and is conceded to have been under the authority of the articles just referred to. The note is strictly in form a promissory note, payable to the order of the payees named, who are the present appellees. It was drawn at sixty days' time, and payable at a certain named bank. It has been treated as ordinary negotiable paper, and hence it was protested for non-payment. It was signed by the officers designated in the articles of association to execute promissory notes, and the only thing that is supposed to deprive it of the qualities of such paper is the appearance, in one corner of the face of the note, of the type or emblem of what is said to be the seal of the corporation. There is no statement or declaration in any part of the note that it was, or was designed to be, executed under the corporate seal. What is alleged to be the seal consists simply of an emblem or symbol printed by the printer at the time when the printed blank note was struck. Whether this printed symbol is a sufficient seal, or can be made sufficient by adoption, is a question that we need not now decide ; for, even conceding it to be a sufficient representation of the corporate seal, still, we are of opinion that the note in question is a negotiable promissory note, by the indorsement of which in the ordinary manner liability attached to the indorser.
In this case, as we have seen, the officers of the corporation signing the note were authorized and directed to issue promissory notes in a negotia
JACKSON v. MYERS.
ble form, and it should be presumed that they intended to conform to their authority rather than violate it. But, apart from this consideration, the very nature of the transaction itself, the objects and purposes to be subserved by the issue of the note, as well as its form, plainly indicate that the parties must have understood that the note was negotiable, and that it would be so accepted and dealt with by the commercial community. The Building Association issued the note to the appellees, instead of money for which the inortgage was given. It was certainly contemplated, that the appellees should negotiate the note, in order to obtain the money that the association had contracted to loan, and that was rendered impossible, from the form of the note, except by indorsement. No bank or banker would likely discount the note, if not negotiable, upon mere assignment, subject to the equities existing between the original parties. It sufficiently appears that the present note, and others like it, have been dealt with by the banks, and the commercial community generally, as ordinarily negotiable paper; and in their understanding of the nature and qualities of these instruments, we think they have not been mistaken. The symbol or printed representation of the seal, if it be conceded to be a sufficient seal, was not printed on the note to restrain its negotiability, or to change it into a specialty, but rather as a mark of genuineness. The note in no manner depends upon the seal for its validity, but derives its entire authenticity from the signatures of the officers authorized to execute it. This view of the subject is fully sustained by the recent cases of Dinsmore v. Duncan, 57 N. Y. 573, and Vermilye v. Adams Express Co. 21 Wall. 138, involving the consideration of the nature and qualities of the United States treasury notes, issued under the seal of the treasury, as authorized by the Act of Congress of March 3, 1865.
The authorities mainly relied on by the appellees in support of the position that because there is a seal, or the representation of a seal, on the note, therefore the note must be a specialty, are the cases of Trasher v. Everhart, 3 Gill & John. 234; Stabler v. Cowman, 7 Gill & John. 284, and Gist v. Drakeley, 2 Gill, 330. The first two of these cases presented no question as to what constituted, or as to the effect of printing a representation of a corporate seal on an instrument executed by a corporation; but were cases where the instruments involved were executed by individuals, using the scrawl at the end of their names as seals. The law settled by those cases we in no manner design to disturb. Nor do we propose to qualify or disturb any of the principles decided in the case of Gist v. Drakeley. That case, however, is quite distinguishable from the present. There, the two notes executed by the corporation, though in the ordinary form of promissory notes, bore upon their face such evidence of design as to leave no doubt of their real character. They bore the regular impress of the seal, attested by the signature of the president; the notes concluded with the words, “Witness the seal of the company, attested by the signature of the president.” The seal was the only real evidence of execution, the signature of the president being added to attest the affixing of the seal to the instruments. Not so in the execution of the note before us.
With these views, differing from those entertained by the court below as to the nature and character of the note in suit, and without referring