George N. Pierce Co. v. Casler

Sheldon, J. The only questions raised by these exceptions arise upon the requests for instructions presented by the defendant. Beers, and upon the specific objection to a part of the charge taken by both defendants. No other objection was made by either defendant to the instructions given. The first and second requests of the defendant Beers appear to us to have been given in substance. The whole purport of the instructions was unmistakably to the effect that the plaintiff could not recover unless it appeared that before the bond was completed and delivered it had been fully executed by attaching the signatures and seals of the defendants while [426] they were all present before the magistrate. If this was shown to have been done, if it was proved that each one of the defendants did sign the bond and did affix or cause to be affixed to it his or her seal, so that the bond was delivered by the defendants as a completed bond, this was sufficient; and it was not material, as the judge correctly stated, if the filling out and execution of the bond constituted one transaction, to determine the order in which the several steps were taken. The seal upon a bond or deed is none the less the seal of one who executes it whether he affixes it before or after his signature, or whether he adopts as his seal one which has been already affixed to the instrument by another, or is affixed to it at his request by another after the signature has been made. The material question is whether he has adopted it as his seal and delivered the writing as a sealed instrument; and manifestly' this was the rule which was given to the jury. The third request was also given in substance ; for the judge expressly told the jury that the bond was “ not a valid instrument unless there was a proper seal ” upon it. The fourth, fifth and sixth requests could not have been given in the language in which they were presented. Each one of these requests made it necessary to the validity of the bond that it should appear to have been sealed before its approval by the magistrate. But this was not necessary, if the whole matter of executing the bond, obtaining its approval by the magistrate and delivering it as a completed bond constituted but one transaction, to which the defendants were parties and which they carried to completion; for, as has been in substance already stated, the instrument had no effect until they delivered it, and they are bound by it in the character that it had when they delivered it. What its condition was at any previous stage of the transaction, whether signed or sealed or completed in any other respect, was wholly immaterial. It has been argued however that the judge improperly ruled that the burden of proof was upon the defendants to prove that there were no seals upon the bond when delivered. He said to the jury, “ That bond on the face of it is correct. It is attacked by the defendants. The presumption is, until it is shown to the contrary, that it is as it stands and is a correct [427] bond. And the burden is upon the defendants, who attack this bond, to show that it is not properly sealed.” But we do not think that this was, intended, or was understood by the jury or by the defendants to be intended, as a statement that the burden was not upon the plaintiff to prove the due execution of the bond by proving that the defendants had both signed it and affixed their seals to it. If this were the meaning, it would be at variance with all the rest of the charge. The defendant Beers had set up the defence that this instrument had been “ materially altered by the unauthorized and unlawful affixing of said seals, wherefore the defendant was discharged from all obligation thereunder.” Her counsel apparently contended in the Superior Court, as they have argued here, that the seals were affixed by others after she had delivered the bond, and that this was a material alteration which wholly avoided the contract, so that for this reason, as well as for a lack of consideration, she could not be held upon the instrument as an unsealed agreement. In our opinion, the judge meant merely to say that if the defendants set up a material alteration by the affixing of seals to an unsealed instrument, the burden was upon them to make out their defence. There may be some question as to the correctness of this rule. Graham v. Middleby, 185 Mass. 349, 352, and cases there cited. Simpson v. Davis, 119 Mass. 269. See however the cases cited in 2 Cyc. 233, et seq. But.the statement was not made with reference to any of the requests which had been presented; no exception was saved to it by either of the defendants; and it is not open to us to consider whether it was or was not correct. For the reasons which have been already sufficiently stated, the exception taken to that part of the charge in which it was said substantially that if the whole matter of completing the bond by signing and sealing it, procuring its approval by the magistrate and delivering it constituted but one transaction, it would be sufficient if at the close of the whole transaction the bond had seals on and was a proper bond, cannot be sustained. There seems to have been no dispute that the defendants were present at that transaction; and the jury might well have found that they assented to all that was done there. In* [428] deed, looking to the facts stated in the charge to the jury, (as we may do, Botkin v. Miller, 190 Mass. 411,) the jury would have been fully warranted in finding that the defendants attached their signatures after the seals had been affixed, and adopted these seals as theirs. At any rate, the question was for the jury; and we find no error in any of the rulings excepted to. The verdict should have been for the penal sum of the bond ; but no question has been made as to this. Exceptions overruled.