Summary
In Norfleet v. Edwards, 52 N.C. 457, the action was on an instrument to pay money, and the signature was that of a partnership.
Summary of this case from Wicker v. JonesOpinion
(June Term, 1860.)
Where a promissory note of a firm appeared on a piece of paper, in a form that had been prepared for a bond with sureties, but the scroll containing the word "seal," opposite to which was the signature of the firm, was scratched and cross-marked with ink (evidently with a design to obliterate it), it was Held to be erroneous to charge the jury it was incumbent on the plaintiff to show that the obliteration took place before or at the time the instrument was executed.
ASSUMPSIT, tried before Saunders, J., at last Spring Term of EDGECOMBE.
Dortch and B. F. Moore for plaintiff.
Rodman and Bridgers for defendants.
The plaintiff declared in two counts: first, on a promissory note, and, secondly, for goods, wares, and merchandise sold and delivered.
In support of the first count it was proved that the instrument declared on was executed by Joseph M. Edwards, and that he was at that time a partner with defendant W. W. Parker and one John Edwards, under the name and style of the signature of the note.
The instrument in question is as follows:
$500. With interest from date, we, or either of us, promise to pay W. A. Grimmer, or order, $500, for value received, as witness our hands and seals, this 1 January, 1857.
EDWARDS, PARKER CO. Witness, [SEAL.] [SEAL.]
Upon the second count, plaintiff relied on the instrument (456) aforesaid, and proved that Grimmer sold to the firm of Edwards, Parker Co. his stock of goods (he having been a merchant) and his real estate.
It appeared on inspection of the paper that it had been originally drawn as a bond, with seals, in a handwriting different from that of the signature, with the word "witness" in the usual place, in the same handwriting with the body, though not attested; and that the seal, opposite the signature, had been defaced, first by scratching with a knife or something of a similar kind, and then by drawing lines through it.
The defendant insisted that the instrument was not their promissory note, because the seal had been defaced after the execution. The plaintiff denied that the seal had been defaced after the execution, and insisted that from an inspection of the paper it would be seen that the erasure of the seal was done with the same ink as that of the signature; also, that the jury had a right to inspect the paper, and from its appearance, and all the matters appearing in proof, to judge whether the seal had been defaced before, at the time, or after the execution of the paper.
The court intimated an opinion that the defacement of the seal, of itself, created a suspicion against the instrument which had not been explained, and that it was incumbent on the plaintiff to show, by proof, that the defacement was before or at the time of its execution, of which there was no sufficient proof; and further, that there was no sufficient proof to support the second count, although the instrument might have been executed as a bond. The plaintiff's counsel, in submission to this opinion, took a nonsuit and appealed.
There is scarcely any question of law upon which there is a greater conflict of decisions in the English and American courts than that which has been discussed in the case now under (457) consideration. Mr. Parsons, in his excellent work on the law of Contracts, says that "In the absence of explanation, evident alteration of any instrument is generally presumed to have been made after the execution of it; and consequently it must be explained by the party who relies on the instrument or seeks to take advantage from it. Such is the view taken by many authorities of great weight. But others, of perhaps equal weight, hold that there is no such presumption, or, at least, that the question whether the instrument was written, as it now stands, before it was executed, or has since been altered, and whether as so altered it was done with or without the authority or consent of the other party, are questions which should go to a jury, to be determined according to all the evidence in the case." 2 Par. Contracts, 228. Very many cases are referred to in the note (a) to that page, which fully support the remarks of the learned author in the text. See, also, Dunn v. Clements, ante, 58.
In most if not all the cases in which the contrariety of decision may be seen, it will be observed that the erasures, interlineations, or rather alterations, were made in deeds, negotiable securities, or other instruments whose nature and character were determined upon or fixed, that is, they either were intended to be, or were, at the time when the alterations were made, deeds or negotiable securities or instruments of some other particular kind. The instrument in the present case differs from them all in this particular, that the alteration was made for the very purpose of determining and fixing its character. With a seal it would be a deed, while, if that were erased, it would become a promissory note. If it were executed as deed, it could not bind all the partners, but if made as a promissory note it would have that effect. The plaintiff's intestate wished, undoubtedly, to take an instrument by which all the partners with whom he was dealing should be bound, and the partner who signed the instrument in the name of the firm wished, undoubtedly, to give one by which all the members of the firm should be bound. Under such circumstances is it not a fair presumption that the seal was erased at the time when the instrument was given by the (458) one party and accepted by the other? If we are to suppose that the parties to the transaction were apprised of the law applicable to it, the presumption that they acted in accordance with that law follows as a necessary consequence. Now, we believe that it is a general rule that in civil as well as in criminal cases parties are presumed to know the law and act in reference to it, unless the contrary appears; and hence we conclude that in a case like the present, where the interest of the parties is in accordance with their manifest intent, the maxim that omnia presumuntur rite esse acta must prevail. We are, therefore, of opinion that his Honor, in the court below, erred in holding that it was incumbent upon the plaintiff to show that the obliteration of the seal was made before or at the time when the instrument sued upon was executed.
PER CURIAM. Venire de novo.
Cited: Wicker v. Jones, 159 N.C. 110, 117.