Bronston's Admr. v. Lakes

Opinion op the court by Judge Carroll Affirming. The appellee, Maria Lakes, instituted this action against the administrator of Bronston, alleging that Bronston ‘ ‘ on the 5th day of May, 1892, executed and delivered to her his promisory note, by which he promised to pay her on the 2d day of August, 1892, the sum of $1,000, with interest at the rate of 7 per cent, per annum from date until paid, that no part of said debt or interest had been paid, and that the same was due and owing to her. ’1 She filed with and as a part of her petition the note, reading:-“On the 2d day of August next I promise to pay Maria Lakes one thous- and dollars with interest at the rate of seven per cent, per annum from this date until paid, for value received. May 5, 1892. T. C. Bronston. ’ ’ The only question presented by the record is whether or not a general demurrer filed by Bronston’s administrator should have been sustained. In support of the proposition that the demurrer should have been sustained, counsel for appellant insist that the petition was fatally defective because it failed to aver the consideration for the execution of the note. The argument of co.uusel is: “ That at the common law, and in the absence of a statute to the contrary, every contract, except contracts under seal, which by law dispenses with the necessity of a consideration, and ne [175] gotiable instruments which under the law merchant are presumed to have been given for a consideration, requires a consideration to support it; and as a necessary corollary thereto, it is incumbent upon the, pleader, in declaring upon such a contract, to both aver and prove a consideration for it.” And that unless section 471, Ky. St. changes the rule, the lower court was in error in overruling a demurrer to the petition. The statute referred to reads: “A seal or scroll shall in no case be necessary to give effect to a deed or other writing. All unsealed writings shall stand upon the same footing with sealed writings, having the same force and effect, and upon which the same actions may be founded. . But this section shall not apply to, nor shall it alter, any law requiring the state or county seal, or the seal of a court, corporation, or notary, to any writing.” Counsel correctly state the common-law rule; and, if it controlled the practice in cases like this, the argument that the petition in failing to aver a consideration did not state a cause of action would be well taken. At the common law there was a marked difference in the effect given to a sealed and an unsealed instrument of writing. In the case of deeds and other writings of like import the seal was as necessary as the signature to make it a valid and enforceable instrument. Indeed at common law contracts were classed as simple or sealed contracts. All contracts, whether verbal or reduced to writing, but not under seal, were simple contracts, and written contracts under seal were spoken of as sealed contracts. A contract, although in writing, unless a seal was attached, was treated as a parol contract, and it was necessary in declaring on it to set out the consideration, and also to prove it. Interesting information concerning the origin, use, and necessity [176] for seals upon deeds and written contracts, and the difference between sealed and unsealed instruments, can be found in Blackstone’s Commentaries, book 2, p. 305; Chitty’s Pleadings, vol. 1, p. 299; Chitty on Contracts, vol 1, p. 5. In this state, prior to the act of 1812 (Laws 1811-12, p, 180, c 375), the distinction between sealed and unsealed instruments of writing was recognized by our court, and it was held in a number of cases to be necessary, in declaring upon what might be termed a simple contract — that is a verbal contract or a contract in writing but not sealed — to aver the consideration for its execution. Thus in Letcher v. Taylor 2 Bibb 585 a common-law action of debt was brought upon an agreement in writing but without a seal. The declaration contained no averment of the consideration upon which the agreement was made. In'ruling that the general demurrer interposed should have been sustained the court said: “The objection to the declaration for want of an averment of the consideration of the agreement is fatal. In a case founded upon a deed or a mercantile instrument as the law in such a case implies a consideration, none is necessary to be stated in the declaration; but in all other cases the consideration, not being implied, must be averred.” To the same effect is Hart v. Coram, 3 Bibb, 26; Beauchamp v. Bosworth, 3 Bibb, 116; Jackson v. Berry, 3 Bibb, 85. But in 1812 the Legislature enacted: “That all writings hereafter executed, without a seal or seals, stipulating for the payment of money or property, or for the performance of any act or acts, duty or duties, shall be placed upon the same footing with sealed writings, containing the like stipulations; receiving the same consideration in all courts of justice; [177] and to all intents and purposes having the same force and effect and upon which the same species of actions may be founded, as if sealed.” This act was in substance readopted in 1852 as a part of the Revised Statutes, and may ■ be found in chapter' 22, Sec. 2, was again re-enacted in the adoption of the General Statutes of 1873, chap. 22, sec. 2, and readopted in sec. 471, as a part of the Kentucky Statutes, in 1894. So that since 1812 there has been in effect no distinction between sealed and unsealed instruments iof writing. A writing without a seal stands on the same footing as a writing with a seal. The purpose and effect of the Act of 1812, as well as the subsequent legislation upon the same subject, was to abolish in every particular, both as to substance and procedure, the common law distinction between sealed and unsealed instruments. Since the enactment of this legislation, every writing signed and delivered, whereby the obligor unconditionally promises to do a specified thing, imports a sufficient consideration, and it is not necessary in declaring on it to aver that it was executed for a consideration, or to prove that there was any consideration for its execxxtion, xxnless the consideration is denied. Bxxt, if in declaring on a writing that imports a consideration, thereby dispensing with the averment that it was execxxted for a consideration, the pleader unnecessarily sets oixt the consideration, he must prove it. Steadman v. Guthrie, 4 Metc. 147; L. & N. R. Co. v. Literary Society, 91 Ky. 395, 15 S. W. 1065, 13 Ky. Law Rep. 5. And so the consideration of any writing with or without a seal may be impeached or denied by a pleading verified by oath, as authorized by section 472 of [178] the Kentucky Statutes. But when so denied, the burden of proving the want of consideration is placed on the person relying on this plea to defeat the action. Andrews v. Hayden, 88 Ky. 455, 10 Ky. Law Rep. 1049, 11 S. W. 428: Trustees v. Fleming, 10 Bush, 234; Brann v. Brann, 44 S. W. 424, 19 Ky. Law Rep. 1814; Keisewetter v. Kress, 68 S. W. 633, 24 Ky. Law Rep. 405. The court properly overruled the demurrer and the judgment is affirmed.