Yale v. Flanders

jBy the Court, WhitQN, C. J. The bill of exceptions in this case informs us, that the evidence' adduced at the trial, was the bond or agreement set out at length in the second count -of the /plaintiff’s declaration, and the record (of a judgment), and an execution in a suit in which Flanders was plaintiff, and Coon, James and Hunter were'defendants; and .also the record and decree in a chancery suit, in the Circuit Court for Milwaukee •county, in which Coon, James and Hunter were complainants, and Flanders, 'Moseley and Eichards were defendants, in which •the instrument in writing set forth in the declaration was taken, “ Which decree was, in substance, the dismissal of said ‘bill in said suit, with damages and costs.” It being admitted by the .parties at the trial, that when Tale signed the writing “ there [100] was nothing said by him, as to whether or not he adopted the seals of either of the other signers as his.” It farther appears,, by the bill of exceptions, that no order for the delivery of the said instrument in writing to the plaintiffs for prosecution, was shown; nor was any objection made, or exception taken, for the want of such proof; and that the testimony above mentioned, was all the testimony introduced at the trial. It appears, further,, from the bill of exceptions, that the defendant below objected to the introduction of the said bond, or instrument in writing, for the reason that it was not the bond of the defendant, as it did not appear to have been sealed by him : because it was a collateral undertaking, and void by the statute of frauds, it being a promise to answer for the default or debt of another; and because it appeared from the instrument that it was given on the allowance of an injunction, and was not such an instrument as the statute requires should be given in such a case. The judge overruled the objections, and allowed the instrument to be read in evidence, and the defendant excepted. It appears from the record, that defendant demurred to the second count of the plaintiff’s declaration, which set out, in words- and figures, the instrument in question, and that the court overruled the demurrer. We do not see any error in the decision of the court below. The most important objection to it is, that the instrument declared on is not the deed of the defendant, it not having, in fact, been sealed by him. But we think that the authorities cited By tbe counsel for tbe defendant in error satisfactorily show, that when a party to an instrument, which, by its terms, purports to have been sealed by all the obligors, and some of them do seal it in fact, the party wbo does not affix his seal, is considered to have adopted the seal of some one of the other signers ; he, at the time of signing, doing no act which shows an intention not to be bound like the other signers. 7 Humph. Rep. 230; 1 Black. Rep. 103 ; McKay vs. Bloodgood, 9 J. R. 285; Murphy vs. White, 3 Greenlf. Rep. 290 ; Bradford vs. Randall, 5 Pick. Rep. 495. Objection is also taken to the instrument received in evidence, on tbe ground that it does not strictly comply with the statute. But we are of tbe opinion that it does, nevertheless,, constitute a [101] valid, legal obligation. See the cases of Tyler vs. Hand et al., 7 Harr. R. 115; Ring vs. Gibbs, 26 Wend. Rep. 502. Objection is also taken (in this court) to the instrument, that it does not appear that it had been ordered to be delivered to tbe plaintiff, to be prosecuted. Admitting that this would have been a -valid objection if it bad been taken at the trial, we think that it is too late to raise it for the first time in this court. If the introduction of the instrument in evidence, had been resisted at the -trial on that ground, it might have been shown -that such an order had, in fact, been made. As the bill of exceptions states that no objection to the reception of the instrument, when it was offered in evidence, was made on that ground, we think it would be unjust to the defendant in error to.permit it to be raised here. The judgment of the court below must be affirmed,