Eames v. Preston

Caton, C. J. This was an action of assumpsit brought against Eames, Burlingame and Gray, upon a note thus executed, “ Eames, Gray & Co. [ and the-only question is, whether assumpsit can be maintained on this note. If this be a sealed instrument, then assumpsit cannot be maintained upon it, (1 Chit. Pl., title Assumpsit, p. 99,) and this would seem to settle the question, for this is certainly an instrument under seal. If the member of the firm who executed the note had authority under seal to add the seals of all, then the seal attached is the seal of all; if he had not, then it is his seal only. In any event it is, as to him, a sealed instrument. If, as to the others, it is a simple instrument, that would not remove his seal. If one party executes an instrument and attaches his seal, and others afterwards sign it silently without attaching seals, they are presumed to adopt the seal of the first,, and, as to all, it is a sealed instrument. If, however, the first sign without a seal, and the others add seals to their names, without the direction or consent of the first, then he cannot be presumed to adopt their seals as his, and it continues, as to him, a simple instrument, as it was when he first executed it. Nor would this prevent it from being a sealed instrument as to those who deliberately attached their seals. As to one of the makers of this note, it was a sealed instrument, and assumpsit could not be maintained upon it. The judgment must be reversed. Judgment reversed.