Bradley Salt Co v. Norfolk Importing & Exporting Co

• Decision Date: 16 December 1897
• Citation: 28 S.E. 567,95 Va. 461
• Court: Virginia Supreme Court
• Parties: BRADLEY SALT CO. v. NORFOLK IMPORTING & EXPORTING CO.

28 S.E. 567

95 Va. 461

BRADLEY SALT CO.

v.NORFOLK IMPORTING & EXPORTING CO.

Supreme Court of Appeals of Virginia.

Dec. 16, 1897.

Seals—Recognition in Instrument.

1. There is no distinction between actual seals and scrolls, so far as constituting a writing a specialty, and either may be affixed to the signature.

2. There must be a recognition of a seal in the body of the instrument to make it a specialty.

Error to chancery court of Norfolk.

Action by the Bradley Salt Company against the Norfolk Importing & Exporting Company. From a judgment for defendant entered upon a demurrer, plaintiff brings error. Affirmed.

Heath & Heath, for plaintiff in error.

Wm. H. White, for defendant in error.

BUCHANAN, J. The plaintiff in error instituted an action of covenant upon an agreement in writing for the sale and purchase of salt. The defendant demurred to the declaration upon the ground that the writing sued on was not a sealed instrument. The court sustained the demurrer, and to that judgment this writ of error was awarded.

The corporate seal of each of the parties, as appears from the record, was affixed to the writing, but there is no recognition of the seals in the body of the instrument. If the seals affixed had been scrolls by way of seals, the writing would not be a specialty; for It is well settled in this state that in cases of contracts like that under consideration, which may be, indifferently, simple contracts or sealed instruments, the fact that a scroll Is affixed to the name of the maker does not make it a sealed instrument, unless there be a recognition of the seal in the body of the instrument. Baird v. Blaigrove, 1 Wash. 170; Austin's Adm'x Whitlock's Ex'rs, 1 Munf. 487; Anderson v. Bullock, 4 Munf. 442; Jenkins v. Hurt's Com'rs, 2 Rand. 446; Peasley v. Boatwright, 2 Leigh, 195; Buckner v. Mackay, Id. 488; Turberville v. Bernard, 7 Leigh, 302, note; Cromwell v. Tate's Ex'r, Id. 301; Clegg v. Lemessurier, 15 Grat. 108; Gover t. Chamberlain, 83 Va. 286, 5 S. E. 174.

This is not denied, but it is claimed that where the seal affixed is an actual seal the rule is different, and recognition of the seal in the body of the instrument is not required. There is no doubt, as the plaintiff's counsel contends, that at common law such a recognition of the seal was not required, and, if the common-law rule upon the subject had been followed, no such recognition would have been necessary In the case of scrolls; for they were in common use long before the statute of 1788 (now found in section 2841, Code 1887) was enacted, and affixing a scroll to a writing for the purpose of making it a specialty was considered, as was said by President Pendleton in Jones v. Logwood, 1 Wash. 42 (decided in 1791), to be an act as solemn and as valid as making an impression upon wax for that purpose and as a good substitute for a seal. Substantially the same view was taken by the courts of Pennsylvania, Maryland, South Carolina, and other Southern and Western states. McDill v. McDill, 1 Dall. 63; Trasher v. Ever hart, 3 Gill & J. 234, 246; Relph v. Gist, 4 McCord, 267.

The courts of these states, for the most part, followed the common-law rule, and did not require that a scroll, any more than an actual seal, should be recognized in the body of the writing to make it a specialty. Trasher v. Everhart, supra; Relph v. Gist, supra; Harden v. Webster, 29 Ga. 427; Yar-borough v. Monday, 14 N. C. 420; English v. Helms, 4 Tex. 228; Jeffery v. Underwood, 1 Ark. 108.

In this state, however, a contrary practice has prevailed. The reason why such recognition was required is not stated clearly in the earlier cases.

In the case of Austin's Adm'x v. Whitlock's Ex'rs (decided in 1810) 1 Munf. 487, Judge Tucker, one of the two judges who delivered opinions, seems to have thought that at common law the recognition of the seal in the body of the instrument was necessary, and that the same rule would apply where the sealing was done with a scroll.

The court in Buckner v. Mackay, 2 Leigh, 488, seems to have thought that such recognition was necessary for a like reason, though the opinion is very brief, and not altogether clear as to what was meant.

In the case of Cromwell v. Tate's Ex'r, 7 Leigh, 301, decided in 1836, the practice in this state of requiring such recognition was considered and the cases upon the subject referred to. In that case, in the opinion of the court, in which all the judges concurred, it was conceded that at common law a recognition of the seal in the body of the writing was not necessary to make it a specialty, and that upon common-law principles such recognition of the seal would not be necessary, although sealed with a scroll. But Judge Tucker, speaking for the court, said that the deci-sions of the court had been too frequently the other way to justify a departure from them. After referring to a number of cases to show that the common-law rule had been departed from, he declares his unwillingness to overrule those cases, and then says: "Nor do I think it desirable to restore the common-law doctrine. The omission of the clause, 'In cujus rei testimonium, ' admits, I think, of gross abuses. They are alluded to by Judge Tucker in his opinion in the case of Austin's Adm'x v. Whitlock's Ex'rs. The facility with which a seal of wax or a scroll may be fraudulently affixed to the name of the party, and the character of the instrument thereby entirely changed, affords an unanswerable argument in favor of requiring the recognition in the body of the instrument. As the addition of the seal may create a lien on the realty; as it operates an estoppel, and concludes the party from denying the consideration or questioning the facts set forth in the instrument; as it elevates the contract to the dignity of a specialty in the distribution of assets; as it excludes the protection of the act of limitations; as it is so easy to add a seal fraudulently, without risk of detection; and as the proof of handwriting, in the absence of subscribing witnesses, is considered sufficient proof of sealing and delivery, —I think it wise to require a recognition of the seal by the instrument itself, instead of trusting the proof of so important a fact to the slippery memory of witnesses. Constituting, as the fact of sealing does, a part of the very contract itself, creating, by its annexation to the signature, stipulations and terms which, without it, would not arise out of its language, there is every motive for requiring that the recognition of it should be found in that writing, which contains all the other terms and stipulations between the parties to the contract. Thus, it is conceded that heirs are not bound, unless named in the instrument, and, even though named, they are not bound unless there be a seal. If, then, the obligation upon them must be set forth in the written stipulations of the instrument itself, it would seem to follow that everything which is an essential to the completion of that obligation must be there set forth; and, as sealing is an essential, the sealing should be set forth or recognized in the body of the instrument. It is, indeed, contrary to the analogies and principles of the law, that an essential term or stipulation of a...