Banking Comm'n v. Magnin

• Citation: 300 N.W. 740,239 Wis. 36
• Parties: BANKING COMMISSION v. MAGNIN.
• Decision Date: 04 November 1941
• Court: United States State Supreme Court of Wisconsin

239 Wis. 36

300 N.W. 740

BANKING COMMISSION

v.MAGNIN.

Supreme Court of Wisconsin.

Nov. 4, 1941.

Appeal from an order of the Circuit Court for Oconto County; Arold F. Murphy, Judge.

Reversed.

Action begun July 24, 1940, by the Banking Commission of Wisconsin as statutory receiver of the State Bank of Oconto Falls, against Elmer C. Magnin, to recover an amount due on a note signed by defendant. The defendant's demurrer to the complaint was sustained. Plaintiff appeals from that order.

It is agreed that the plaintiff is the lawful owner of the note and that no payments were made thereon. The note matured September 1, 1931. Defendant's position is that the note was outlawed at the end of a six-year period from its maturity. Plaintiff contends that the note is a sealed instrument and that the statute of limitations to be applied is found in sec. 330.16 (2), Stats., and that the action having been brought within 20 years was timely. The note is not unusual in form for a promissory note and the printed form on which it was made concluded as follows:

“Witness_____hand_____and seal_____

“_____(Seal)”.

Defendant's signature was immediately followed by the word “seal” enclosed in parentheses, but none of the blanks in the preceding clause were filled in.

Alk, Kresky, Cohen & Hughes, of Green Bay, for appellant.

Lehner & Lehner, Adolph P. Lehner, and Howard W. Eslien, all of Oconto Falls, and Orville S. Luckenbach, of Shawano, for respondent.

FAIRCHILD, Justice.

[1] We are of the opinion that the note is under seal and that the 20 year statute of limitations applies. While a promissory note is not required to be under seal, there is no reason in law why the maker of a note may not, for purposes satisfactory to him and his payee, make his ordinary promise in the form of a specialty by adding a seal. Section 235.17, Stats., provides that a scroll or device as a seal upon an instrument “shall have the same force and effect as a seal attached thereto” and then it is to be “of the same obligation as if actually sealed.” The note in question was on a printed form. The portion just preceding the respondent's signature contained the words and blanks quoted above. The note was signed by respondent immediately preceding the word “seal” in parentheses.

Respondent's contention is that the printed word “seal” is neither a scroll nor a device and therefore does not come within the provisions of the statute and should not be regarded as being a seal. He points to the form in which the statute is drawn and the apparent distinction therein made between instruments not required to be under seal and those required to be executed with the solemnity of a sealed instrument after the manner of the common law. The questions thus raised by the demurrer to the complaint are not altogether new. In Williams v. Starr, 5 Wis. 534, 549, it was held to be the law that the printed letters “L. S.” enclosed in brackets or parentheses in the usual place of a seal is sufficient under the provisions of our statute to answer the purpose of a seal.

[2] Courts of other jurisdictions have treated with facts similar to those presented in this case under statutes varying in terms but similar in substance to those of this state. A study of such cases reveals that the sealing of an instrument “has become constructive rather than actual.” A device is referred to in statutes and decisions as a “written or ink seal,” a “scrawl” or “scroll.” The general trend of authority is that when such a device appears upon an instrument, even though the seal is not referred to in the body of the instrument, it places the instrument in the class of special contracts or sealed instruments, and the life of the obligation is fixed accordingly in the statute of limitations. In practically all jurisdictions the rule prevails that a scrawl or scroll following the signature indicates an intention to make a note a sealed instrument, and that the inclusion in brackets or parentheses of letters “L. S.” or the word “seal” shows an intention to use the device as a...