Mariner v. Wiens

SiebeokeR, J. The finding'of the trial court to the effect that the agreement of March 11, 1898,.was in fact executed [639] .and delivered by the parties as a sealed instrument is challenged as not supported by the evidence. The evidence on the subject is confined to the parties to the action and conflicts ■ as to the facts pertaining to the execution of the instrument. The lower court having found as above stated, its conclusion must stand unless we can say that the finding is against the ■ clear preponderance of the evidence. • Counsel for appellant frankly concede the rule to be that if the instrument was •executed by plaintiffs son in plaintiffs presence and at his immediate parol direction, then the execution is the act of the plaintiff and the instrument has validity as a properly •executed sealed instrument. We cannot say that the evidence of plaintiff is so incredible that the trial court was not warranted in relying on it as ■showing that the instrument was in fact signed by plaintiff’s •son in his presence and at his immediate direction. It is ■contended that, when first testifying on this point, plaintiff negatived this fact. An examination of his testimony shows that he asserted this fact and qualified it by stating that it ■was not clearly in his memory; but this he afterward fully remedied by his statement that he recalled defendant’s presence at his desk, that they discussed the matter, that he made a change in the rate of interest from seven to six per cent., which had been inserted theretofore, and that he directed that the instrument be signed, as above stated. It is also noteworthy that defendant’s testimony on the subject is that he believes plaintiff’s son William appended tire signature below his, and that to the best of his belief William was the only other person present. It is obvious that the defendant does not claim to have positive recollections of this part of the transaction. Upon this state of the proof the court’s finding on this issue must stand as the fact of the case. The plaintiff’s evidence was properly admissible in view of his testimony that defendant was in his room and presence when 'the agreement was finally concluded and the instrument was .signed. [640] It is further contended that action on this agreement is barred by the six-year statute of limitation. If the writing-were a simple contract this contention would apply.- Since,., however, it is a sealed contract executed by private persons,, we discover no grounds for excepting it from the operation of sec. 4220, Stats. (1898), which permits action to be brought on such instruments within twenty years after the-cause of action has accrued. The general rule is that sealed instruments are specialties within the limitation statute, and that they.include contracts of parties, regardless of their nature, provisions, and purposes. Wood, Lim. § 29; Dwinelle v. Edey, 102 N. Y. 423, 7 N. E. 422; Jacobs v. Spalding, 71 Wis. 177, 36 N. W. 608. We hold that this is an action on a promise contained in a. ■ sealed instrument, and that the court properly awarded judgment for the amount due thereon. By the Gowrt. — Judgment affirmed.