Clarke v. Pierce

• Decision Date: 21 October 1913
• Citation: 215 Mass. 552,102 N.E. 1094
• Parties: CLARKE v. PIERCE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

215 Mass. 552

102 N.E. 1094

CLARKE v. PIERCE.

Supreme Judicial Court of Massachusetts, Berkshire.

October 21, 1913

COUNSEL

Noxon & Eisner, of Pittsfield, for plaintiff.

Clarence P. Niles and Jos. W. Lewis, both of Pittsfield, and Frederick M. Myers, of North Adams, for defendant.

OPINION

MORTON J.

This is an action to recover upon a promissory note payable to the plaintiff or order. The note is under seal. There was a verdict for the plaintiff and the case is here on exceptions by the defendant to the refusal of the presiding judge to make certain rulings that were requested and to the charge so far as inconsistent with such rulings.

The note was dated, 'Chicago, Ill., Dec. 4, 1894,' and there was evidence tending to show that it was signed, sealed and delivered by the maker to the plaintiff in Chicago on the day of its date. There was also evidence tending to show that William H Clarke, the maker, died in Pittsfield January 26, 1911, and that he had been a resident of and a taxpayer in Pittsfield continuously since 1902. There was nothing to show what, if material, the law of Illinois was.

The principal question relates to the statute of limitations which is a matter of remedy and is governed by the law of the forum. Bulger v. Roche, 11 Pick. 36, 22 Am. Dec 359. By the law of this state actions on contracts under seal are limited to 20 years next after the cause of action accrues. R. L. c. 202, § 1. In order to avoid the effect of this provision the defendant contends that the seal should be treated as surplusage, or if not, that the note still remains and is to be considered as a simple contract, in which case the action is limited to six years next after the cause of action accrues. R. L. c. 202, § 2.

There is no doubt that where a seal is not required or where it has no effect it may be disregarded. Sherman v. Fitch, 98 Mass. 59; Blanchard v. Blackstone, 102 Mass. 343. A negotiable promissory note does not require a seal, but there is nothing in its character which prevents the parties from affixing a seal to it, if they choose to do so, and thereby rendering it effectual as a contract under seal. It is manifest that the parties intended the note in the present case to be under seal. It concludes: 'Given under my hand and seal this 4th day of Dec., 1894.' There is nothing in the statute which excludes a note under seal from its operation. The provision in regard to witnessed notes has no bearing on the question whether a note under seal is a contract under seal within the meaning of the statute. It relates to an entirely different kind of note and cannot be construed as excluding notes under seal from the operation of the 20-year limitation. If the effect of regarding the note as a contract under seal is to extend the period of limitation from 6 years to 20, it cannot be said that the seal is of no consequence and may therefore be disregarded. What effect, but for the statute, the seal would have had upon the negotiability of the note in this state it is not necessary to consider. That question was explicitly left open in Richards v. Barlow, 140 Mass. 218, 220, 6 N.E 68. It is now expressly provided by statute that the validity and negotiability of an instrument shall not be affected by the fact, amongst others, that it bears a seal. R. L. c. 73,§ 23, cl. 4. It had long been provided by statute in this state before the passage of the negotiable instruments law so called that a...