Wells v. Alropa Corporation

• Decision Date: 09 March 1936
• Docket Number: No. 6507.,6507.
• Citation: 82 F.2d 887,65 App. DC 281
• Parties: WELLS v. ALROPA CORPORATION.
• Court: U.S. Court of Appeals — District of Columbia Circuit

65 App. DC 281, 82 F.2d 887 (1936)

WELLS v. ALROPA CORPORATION.

No. 6507.

United States Court of Appeals for the District of Columbia.

Decided March 9, 1936.

F. Regis Noel, of Washington, D. C., for appellant.

Alvin L. Newmyer and Joseph A. Kaufmann, both of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, GRONER, and STEPHENS, Associate Justices.

VAN ORSDEL, Associate Justice.

Appellant, defendant below, appeals from a judgment obtained in the Supreme Court of the District of Columbia on a promissory note, reading as follows:

Face of note:

"Miami, Fla., November 27, 1925.

"No. 1, $1,111.11.

"On or before one year after date, for value received, I promise to pay to the order of W. C. Jackson One Thousand One Hundred and Eleven and 11/100 Dollars at MIAMI BANK AND TRUST COMPANY, of Miami, Florida, with interest thereon at the rate of 8 per cent, per annum from date until fully paid. Interest payable semi-annually. The maker and endorser of this note further agree to waive demand, notice of non-payment, and in case suit shall be brought for the collection hereof, or the same has to be collected upon demand of an attorney, to pay reasonable attorney's fees for making such collection. Deferred interest payments to bear interest from maturity at 8 per cent per annum, payable semi-annually.

"Signed Walter A. Wells Seal "The Rochambeau Seal "Due ____ 1926. Wash., D. C Back of note "Without recourse. "Signed W. C. Jackson."

The note is a printed form with the blanks typewritten. It was signed by the maker on a printed line which had the word "Seal" printed to the right, directly in line with the maker's signature.

The declaration was met by a motion to strike on the ground that the action was barred by the statute of limitations of the District of Columbia. The bar of limitations was based, of course, upon the theory that the note is not under seal. Defendant's contention is that, inasmuch as the note did not recite that it was signed and sealed by the maker, and there was no indication on the face of the note that the maker had adopted the printed seal, it cannot be held to be a sealed instrument. The motion to strike was denied.

We will consider first the question of whether or not the note given is a sealed instrument. If not, it is barred here by the statute of limitations. Although it is a Florida contract, the statute of limitations of the forum where the suit was brought, namely, in the District of Columbia, controls, regardless of whether or not recovery would be barred in the state in which the cause of action arose. Townsend v. Jemison, 9 How. 407, 13 L.Ed. 194; M'Elmoyle v. Cohen, 13 Pet. 312, 10 L.Ed. 177; Brunswick Terminal Company v. National Bank of Baltimore (C.C.A.) 99 F. 635, 48 L.R.A. 625; Thomas v. Clarkson, 125 Ga. 72, 54 S.E. 77, 6 L.R.A.(N.S.) 658.

There is considerable conflict in the state decisions as to whether or not an instrument, such as the present, with the word seal printed thereon, and no reference on the face of the instrument signifying it was intended as a sealed instrument, is to be treated as such, or as merely a simple contract. In an early decision in the District of Columbia, Green v. Lake, 13 D.C. (2 Mackey) 162, where a printed seal appeared on the note at the end of the line containing the signature of the maker, as appears in the present note, the court said: "The question was suggested in the outset, whether this was to be treated as a sealed instrument or a simple contract. The action is brought in debt, which would apply to an instrument bearing either character. It is in evidence that by the law of Mississippi, where this contract was made, this is a sealed instrument, and we have no hesitation in saying that by the law of the District of Columbia it must also be so regarded. Written scrolls have been, from time immemorial, regarded as seals here. For twenty years we have been in the habit of using printed forms of conveyancing for real estate, with printed seals only, and to hold that these are not seals would be to upset many of the titles created during that time."

This holding is upon the theory that where a person signs his name next to the printed seal, he adopts the same as his seal, and this prevails whether or not in the body of the instrument are contained additional words "Witness my hand and seal," or "Signed and sealed." "It is not necessary, as has been argued, that the scrawl must be adopted by the obligor, by a declaration in the body of the bond, or single bill, to make it his seal. It is sufficient if the scrawl be affixed to the bond, or bill, at the time of its execution, and delivery. For, if he execute and deliver it with the scrawl attached, it being considered here as equivalent to the wax or wafer, it is as much his seal, as if he had declared it to be so in the body of the instrument." Trasher v. Everhart, 3 Gill & J. (Md.) 234.

We do not overlook the modern tendency to minimize the importance of the use of the seal, especially on negotiable instruments such as promissory notes. But the rule announced in Green v. Lake, supra, has never been overruled by the courts of this District. It established a rule of stare decisis, which has universally been followed, and which we think should not be set aside at this late date.

We now come to the consideration of the sufficiency of the affidavit of defense. On motion of counsel for plaintiff for judgment on the insufficiency of the affidavit of defense, under the seventy-third rule of the Supreme Court of the District of Columbia, judgment was entered for the plaintiff. This is assigned as error. The affidavit of defense alleges that defendant "is advised and believes, and upon such information and belief avers, and expects to prove at the trial hereof, that the consideration paid for the notes sued upon herein wholly failed; that the enforcement of payment of said notes is barred by the statute of limitations; that there has been no demand for payment or presentment of said notes; that the plaintiff corporation paid nothing of value for said notes; that said plaintiff is not a holder of said notes for value, or any consideration, in due course of business, and that said plaintiff acquired said notes after maturity and dishonor."

It is contended by counsel for plaintiff that the affidavit is defective in that it does not allege in particular the facts on which defendant relies to establish the grounds of defense alleged in the affidavit. Eliminating the averment that the enforcement of the note is barred by the statute of limitation, we think there are valid defenses sufficiently alleged, if established, to entitle the...