Ingraham v. Edwards
Decision Date | 30 September 1872 |
Citation | 1872 WL 8361,64 Ill. 526 |
Court | Illinois Supreme Court |
Parties | INGRAHAM, CORBIN & MAYv.HENRY C. EDWARDS. |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Mercer county; the Hon. GEORGE W. PLEASANTS, Judge, presiding.
Messrs. TALIAFERRO & BROCK, for the appellants.
Messrs. PEPPER & WILSON, for the appellee.
The declaration was in debt, and contained only one count. The instrument declared on was termed a writing obligatory, and when introduced in evidence, it appeared to be an ordinary penal bond, upon condition, and was signed by the principals, with a seal affixed, by their attorney, and a seal affixed to his name, as well as to the name of the surety. The bond must be regarded as the foundation of the suit, and no attempt has been made to declare upon a simple contract.
If the pleader intended to rely upon a contract not under seal, he should have so pleaded, in an appropriate form, or added other counts, under which such contract might have been admissible. A simple contract will not sustain a declaration upon a writing obligatory. It is urged that the instrument did not need a seal, and that it was a mere promise of the agent, in behalf of his principals, that they would perform a certain act, and was as operative in law as if it had rested in parol.
The argument may be granted, and yet what force is there in it? The correctness of the principle may be admitted, that if the instrument would be effectual without a seal, the addition of one will not render an authority under seal necessary; and yet the difficulty is not overcome. Discard the seal; blot it out from the instrument sued on; and then the proof is entirely variant from the declaration. The introduction of a simple contract would be no proof of the execution of a bond. The action is debt on the bond. If the instrument offered is not the bond of the obligors, but a simple contract, the action can not be maintained.
Hence, there is no application to this case of the authorities cited by appellee.
In the case of Lawrence v. Taylor, 5 Hill, 107, the action was assumpsit, and a simple contract might properly be offered in evidence. Therefore, the court held that if the contract might be without deed, though the agent added a seal, and his authority was by parol, the contract might enure as a simple contract.
In this case, the plea of non est factum, sworn to, put in issue the execution of the bond. The agent had no...
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