Dunlap v. . Willett

MANNING, J. The obligation sued upon in this action is not technically a bond, because it is not under seal. Although there appears in it the words, “Signed and sealed, this 25th day of August, 1907,” the original was offered in evidence which distinctly shows that no seal or device representing a seal appears to it, and no presumption of seal can be raised in face of the fact that the original, produced and exhibited in evidence, discloses an entire absence of seal. No statute required the execution of the obligation of defendants under seal, as in case of grants from the State (Aycock v. R. R., 89 N. C., 321); the undertaking of defendants was good as their obligation without seal. Nor does the instrument sued upon create the relation of debtor and creditor, as an evidence of such relationship, but it is an undertaking by the defendants to be liable for the losses sustained by the corporation for the failure of its general manager to observe the rules and directions, authoritatively prescribed for the conduct and management of its own business. The evidence offered by the plaintiffs clearly shows that the in *321 strument sued upon, when passed to tbe possession of Mr. Dark, as president of tbe corporation, was not complete; and that even when completed, as contemplated by tbe condition of its tradition to Dark, it was to be tendered by Willett, tbe general manager, to tbe board of directors of tbe corporation for its acceptance or rejection. It was competent for tbe corporation to direct tbe undertaking to be made to its presiding officer, for and on its behalf, and to reserve to its governing board tbe right to approve or disapprove its form or tbe solvency of tbe sureties thereto. Tbe only inference to be drawn from plaintiff’s evidence sustains this conclusion. Tbe reason for tbe requirement that tbe defendant’s obligation be in writing, is tbe statute of frauds, as tbe undertaking was to answer for tbe “default or miscarriage” of another. Being in writing, tbe requirement of tbe statute is met. And tbe correctness of bis Honor’s ruling depends upon whether tbe written instrument was, in law, delivered. In Gaylord v. Gaylord, 150 N. C., 222, Holm, J., in a learned and elaborate opinion, speaking for this Court, said: “It is a familiar principle that tbe question of tbe delivery of a deed or other written instrument is very largely dependent on tbe intent of tbe parties at tbe time, and is not at all conclusively established by tbe manual or physical passing of tbe deed from tbe grantor to tbe grantee.” And quoting from Waters v. Ins. Co., 144 N. C., 670, it is said: “This matter of delivery is very largely one of intent, and tbe physical act of turning over a policy is open to explanation by parol evidence.” Tbe general principle is established by that decision and tbe cases cited, that where an instrument is banded by one of tbe signers to tbe obligee therein named, not as a complete instrument, but subject to tbe control of tbe person delivering it, or upon an agreed condition, then tbe person to whom it is banded is a mere depository and tbe instrument is not delivered in tbe technical meaning of that word. 2 Words & Phrases Judicially Defined, 1965 and 1966. Tarlton v. Griggs, 131 N. C., 216. Tbe evidence of tbe plaintiff conclusively negatives a delivery of tbe instrument in its technical and established meaning, and we find no error in bis Honor’s ruling. Tbe judgment is, therefore, affirmed. No error.