Clark v. Read

Mr. Justice Morris delivered the opinion of the Court: 1. There are two principal questions in this case; and the first of these is, whether the attachment of the seal of the — 350 — appellant' company to its endorsement was sufficient to constitute the instrument a specialty, and to preclude its introduction in evidence in this action of assumpsit. We think that this question should be answered in the negative, both upon reason and upon authority. Whether the mere affixing of a seal to an instrument of writing not required to be under seal, such as a promissory note, when there are no words in the instrument purporting an intention to execute it as a sealed instrument, is of itself sufficient to constitute it a sealed instrument, is a question upon which the authorities are greatly at variance; and it has received different answers in different jurisdictions. But however the rule may be in regard to individuals who become parties to negotiable paper, it seems to us to be the dictate of reason and the result of all the best authorities on the question that the impression of the seal of a corporation upon an instrument otherwise negotiable, especially when such impression is in'connection with an endorsement of the note by such corporation, does not of itself suffice to restrain the negotiability of the paper or to convert it into a specialty. It is, of course, now very well established that a corporation may contract without the use of its seal, and that it may therefore execute a negotiable promissory note and transfer such note by endorsement. For this purpose the action of its duly authorized officers in its name is sufficient. The fact that the authority of such officers to act for it may be attested by the corporate seal, should not in reason be allowed to affect the character of their act, so far as to convert it into a specialty, when the manifest purpose of the act itself is that it should not be a specialty. Undoubtedly it would not be contended that, if the authority of the officers to act were in a separate instrument of writing under seal, and the act done by them, and which was intended to be done, shonld be a simple contract, such as the execution of a promissory note, or its transfer by endorsement, the one instrument would be drawn to the other in such manner as — 351 — to change the promissory note into a sealed instrument, notwithstanding that it should be necessary in the course of proceedings to prove the authority of the officers to execute or endorse the note by the production of the sealed instrument by which they were so authorized. And if this would be the result if the two instruments were separate, it is difficult to see why the result should be different, if the two papers were attached to each other, or even if the sealed authority to the officers to act be endorsed upon the promissory note or other simple contract. The two things are separate and separable; and each will be taken for the purpose for which it is intended. The impression óf a seal will not be given the effect of destroying a negotiable instrument, when plainly such was not the intention of the parties, and when such impression can properly be given its due effect as authenticating the power conferred upon the officers. We think that this conclusion is fully sustained by the authorities. In the case of Jackson v. Myers, 43 Md. 452, it was said: “The very nature of the transaction itself, the objects and purposes to be subserved by the issue of the note, as well as its form, plainly indicate that the parties must have understood that the note was negotiable, and that it would be so accepted and dealt with by the commercial community. ... It sufficiently appears that the present note, and others like it, have been dealt with by the banks, and the commercial community generally, as ordinary negotiable paper; and in their understanding of the nature and qualities of these instruments, we think they have not been mistaken. The symbol or printed representation of the seal, if it be conceded to be a sufficient seal, was not printed on the note to restrain its negotiability, or to change it into a specialty, but rather as a mark of genuineness. The note in no manner depends upon the seal for its validity, but derives its entire authenticity from the signatures of the officers authorized to execute it.” — 352 — To the same effect are Dinsmore v. Duncan, 57 N. Y. 573; Vermilye v. Express Co., 21 Wall. 138; Rand v. Doney, 83 Pa. State, 280; Auerback v. Mill Co. 28 Minn. 291; Central National Bank v. Railroad Co., 5 S. C. 156. That there was no intention of the parties here to convert an instrument, which was in its inception and up to the time of its endorsement and transfer by the defendant company a negotiable promissory note, into a sealed instrument, subject in the hands of the endorsee to all the equities between the maker and the payee, is too clear to be questioned. There is no intimation of any such intention anywhere'in the record. The notes themselves are in the ordinary form of negotiable paper, payable to the order of the company, and by those very terms rendered capable of being transferred by the company as ordinary negotiable paper by endorsement ; and the endorsement was a general endorsement in blank, without reservation or qualification of any kind, other than such as is now sought to be inferred by. the presence of the corporate seal in connection with the endorsement. And ■ any such inference, it may be added, is antagonized by the individual endorsement of the appellant Clark subsequent to the endorsement by the company, and which would not have much meaning except upon the theory that the endorsement by the company still left the instruments negotiable. We are of opinion that the impression of the seal of the company in connection with the endorsement of the notes was intended merely to authenticate the authority of its officers and to evidence its assent to their execution of the endorsement as a simple contract, and not in any manner to restrain the negotiability of the paper. 2. The second question in the case is, whether the endorsers were discharged from liability by the alleged action of the plaintiff in granting an extension of time to the maker of the notes.. We find no sufficient proof, or offer of proof in the record to show any agreement between the plaintiff and the maker of the notes for an extension of time. — 353 — The testimony simply shows a request by the maker for an extension for two years, and a proposition by the plaintiff for an extension for three years. It does not appear either that the request of the maker was granted, or that the proposition of the holder of the note was accepted. In other words, it does not appear that the minds of the parties ever met, or that they over came to any agreement. It may be, that, in the endorsement made by the plaintiff upon the letter of the maker of the notes, in which he asked for an extension of two years, she intended to write the ■word two, and not the word three, and thereby to accede to the request of the writer. But there is no proof whatever to that effect; and if such were the purpose it might have been shown by the plaintiff herself when on the stand as a witness, or by Hurst, the maker of the note. But there was no attempt to show anything of the kind; and we are compelled to take the endorsement on the letter precisely as it reads and according to. its legal meaning in the words in which it is expressed; that is, as a declination by the plaintiff of an extension of the note for two years, and as a counter proposition by her to extend it for three years. Now, this counter proposition amounts to nothing, unless it is shown to have been accepted by the maker of the notes; and there is neither proof nor offer of proof of any such acceptance other than such as is sought to he inferred by the payment of interest by the maker of the notes after their maturity. But the value of this inference is destroyed by the fact that such payment of interest was no more than the maker of the notes was liable for in any event, with or without au extension; and we are no more justified in assuming that the payment was made under an extension of the notes than under a mere forbearance to sue. And there is also the countervailing fact, not to be ignored, that promptly upon the maturity of the notes, they were duly protested, and suit was commenced in due time against all the parties, which certainly could not bo maintained against the maker — 354 — any more than against the endorsers, if there had been any such agreement for an extension as is now claimed. We find that there were negotiations for an extension of time, but no proof of any agreement between the parties as the result of these negotiations. The appellants, it is true, claim in argument that they might have gone on to prove an agreement between the parties, but that, the basis of their proposed superstructure was taken away from them by the refusal of the trial court to admit in evidence the letter of the maker of the notes asking an extension, and the endorsement thereon of a counter proposition by the plaintiff. But it is sufficient answer to this that the defendants made no offer whatever to follow up these letters with any proof that the minds of the parties thereafter came together. The letters of themselves prove nothing; and even if they had been admitted in the first instance, it would have been necessary afterwards to exclude them from the consideration of the jurjr, unless they were followed up with other testimony that would make them relevant and competent to prove the issue between the parties. An offer is no proof of an agreement and does not even tend to prove an agreement. When it is sought to give evidence of such an offer, and objection is interposed, as it may properly be, it behooves the party adducing such evidence to make proffer of the .other evidence connected therewith which would make the former relevant. This is a well-established rule; and it is quite applicable to the present case. We do not find that the contention of the appellants on this second question has any better or more substantial foundation than their propositions on the first question. 3. Some other questions, also, are raised; hut they do not seem to require any great consideration by us. It is urged, for instance, that the endorsement of the notes in suit by the company is insufficient, as the word “by” is omitted between the title of the company and the names of the officers who are claimed to have acted for it. But while it might have — 355 — been more regular and more accurate to insert this little preposition, it is well recognized in the business community that the present form is not an unusual mode of signature by corporations. Every one understands it, and no one is misled by it. Neither do we attach importance to the questions raised in regard to the sufficiency of the demand upon the note and of the notice of protest given to the endorser company through the officers who had made the endorsement. We regard the demand and notice as sufficient, and as having been sufficiently proved. We find no error in the record; and we are, therefore, of opinion that the judgment appealed from should be affirmed, with costs. And it is so orderd.