Caputo v. Di Loreto

• Citation: 148 A. 367,110 Conn. 413
• Court: Supreme Court of Connecticut
• Decision Date: 06 January 1930
• Parties: CAPUTO v. DI LORETO.[*]

148 A. 367

110 Conn. 413

CAPUTO v. DI LORETO.^[*]

Supreme Court of Errors of Connecticut.

January 6, 1930

Appeal from City Court of Meriden; Alfred B. Aubrey, Judge.

Action on a promissory note by Mark A. Caputo against Joseph Di Loreto, brought to the city court of Meriden and tried to a jury. Judgment for defendant, and plaintiff appeals. No error.

Lewis J. Somers, of Meriden, for appellant.

Denis T. O'Brien, Jr., of Meriden, and George E. Beers and William L. Beers, both of New Haven, for appellee.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS JJ.

BANKS J.

This action was brought by writ dated March 21, 1927, upon a promissory note which reads as follows:

$244.00 Columbus, Oct. 30, 1920

" Thirty days after date for value received I promise to pay to the order of M. A. Caputo two hundred and twenty-four dollars with interest at the rate of 7 per centum per annum at 266 N. High St., and I hereby authorize any attorney at law to appear in any court of record in the United States after the above obligation becomes due and waive the issuing and service of process and confess a judgment against * * * in favor of the holder hereof, for the amount then appearing due, together with costs of suit and thereupon to release all errors and waive all right of appeal.

[Signed] Joseph Di Loreto Seal.

__________. Seal.

__________. Seal."

The defendant filed a general denial, but upon the trial admitted the execution of the note, and that it had not been paid. In a second defense he pleaded that the right of action upon the note did not accrue within 6 years next before the commencement of the action. The plaintiff in reply denied the allegations of the second defense. Since the note fell due November 29, 1920, and this action was not commenced until March 21, 1927, and no new acknowledgment was pleaded, the plaintiff could not truthfully deny the allegation that the right of action did not accrue within 6 years prior to its commencement, and that the defendant was entitled to judgment under his second defense upon the face of the pleadings.

Both the court and counsel have treated the pleadings as though the question whether the action upon this note was subject to the six-year statute of limitations (Gen. St. § 6153), or the 17-year statute (Gen. St. § 6151), had been raised by demurrer to the second defense, and we will so treat it.

General Statutes, § 6151, provides: " No action shall be brought on any contract under seal, or promissory note not negotiable, but within seventeen years next after an action on the same shall accrue." General Statutes, § 6153, provides: " No action for an account, or for a debt due by book to balance book accounts or on any simple or implied contract, or upon any contract in writing not under seal, except promissory notes not negotiable, shall be brought but within six years next after the right of action shall accrue."

The note in question is a negotiable instrument, although it bears a seal. General Statutes, § 4364. Action upon it is controlled by section 6153, unless, because the word " Seal" follows the signature of the maker, it is to be construed as a contract under seal, and thus within the provisions of section 6151.

Whatever its terms may be, an instrument will not be a specialty, or contract under seal, unless it be both signed and sealed by the maker. It is as necessary that the seal be his seal as that the signature be his signature. In other words, he must have performed the act of affixing a seal as his seal, as well as the act of executing the instrument by affixing his signature to it. " Whether an instrument is under seal or not is a question for the court upon inspection. Whether a mark or character shall be held to be a seal depends upon the intention of the executant, as shown by the paper." Jacksonville, M., P. & Nav. Co. v. Hooper, 160 U.S. 514, 519, 16 S.Ct. 379, 381, 40 L.Ed. 515.

In ancient times the impression upon wax by the signet ring of the maker of the instrument was as distinctively his personal act as his signature itself. Under modern statutes, providing that the addition of the word " Seal" or the letters " L. S." shall constitute the paper a sealed instrument, the mere...