Porter v. Androscoggin & Kennebec Rail Road

Tenney, J. — This is an action of assumpsit to recover payment for certain labor alleged to have been done; money paid, services rendered, and materials found by the plaintiffs, under a written contract dated May 16, 1848, signed and .sealed by the plaintiffs and by Hobart Clark, an agent of the defendants, with a common seal, used and adopted by the corporation in this case, though not the corporate seal. It is well settled, that the action of assumpsit cannot be maintained against a party upon the sealed instrument of that party. The action must be debt or covenant. 1 Chitty’s Pl. 94 and 95; Banorgee v. Hovey & al., 5 Mass. 11; Kimball v. Tucker & al., 10 Mass. 192; Charles & al., v. Dana, 14 Maine, 383. By R. S., c. 91, § 14, “all deeds and contracts executed by an authorized agent for an individual or corporation, either in the name of the principal, by such agent, or in the name of such agent, for the principal, shall be considered the deed or contract of such principal.” No question is made, that the contract relied upon in this action in its support, is that of the corporation. The action is brought upon it against the defendants; and they in their argument adpiit it to be their contract. It was executed by the plaintiffs, and by the agent of the defendants, as a deed, seals being affixed thereto. The adoption of the seal placed there by Clark when he executed the instrument, must be supposed to have been done by an act which was legally binding upon the corporation. It is not material with what seal the instrument is sealed, for the seal of a stranger is [351] sufficient, and if a corporation seal, there is no need to say, sigillum nostrum comrrmne. 4 Com. Dig. Fait. A. 2. In Mill-Dam Foundry v. Hovey, 21 Pick. 417, Putnam, J., in delivering the opinion of the Court, says, “ a corporation as well as an individual person, may use and adopt any seal. They need not say it is their common seal. This law is as old as the books. Twenty may seal at one time with the same seal.” It was therefore the deed of the defendants, whether the agent executed it in the name of the corporation, or in his own name for the corporation. It was the defendants’ deed also by the ratification of the agent’s act, by adopting the seal. Plaintiffs nonsuit. Shepley, C. J., and Wells and Appleton, J. J., concurred.