Majority
p. 285Mackay and another against J. and L. Bloodgood. NEW YORK, Oct. 1812.
Headnote
Where one ners executed Ig^o which he subscribed the firm, and sfabtheother read and apbo°d°and conhls^copartner should execute it for both, and being in the store 'at the execution he though it was not actually signed and hníédiáte goodd cxecubond, so as te ^ed^fbiMh.THIS was an action of debt. The declaration contained two counts. The first count stated a submission by the parties, by bond, to arbitrators$ and an award of 243 dollars and 68 cents, in favour of the plaintiffs, and a breach by reason of the non-payment of that sum by the defendants. The second count was for 56 dollars and 32 cents, on an insimul computassent.
The cause was tried at the Albany circuit, in April, 1812, before Mr. Justice Spencer. The plaintiffs produced the bond and award. The bond .was in the usual form, and was subscribed by one of the defendants, with the name of the firm, and sealed with one seal, thus; “ J. & L. Bloodgood, (l.s.)” The subscribing witness to the bond testified, that it was executed by L. Blood-good, one of the defendants, who signed the partnership name, James Bloodgood, the other partner, was about the store at the time of the execution, but the witness did not recollect that he , was actually m the room when the Bond was signed.
One of the arbitrators testified that L. Bloodgood only signed the name of the firm, and affixed but one seal, and the other partner was not actually present when it was so signed and sealed; that James B. saw the bond before it was executed, and approved of it; and L. B. said to J. B. that he (L. B.} would exeeute the bond for both of them, to which J. 8. consented.
The making and execution of the award were also proved.
The counsel for the defendants moved for a nonsuit, on the ground that the bond was not executed by both defendants; and because the award was not according to the submission, &c. The judge overruled the objections, and decided that the evidence was admissible, and sufficient to entitle the plaintiff to recover. The defendants then offered to set off á debt due to them from James Mackay, one of the plaintiffs; but this was objected to, because no notice of set-off accompanied the plea, and because the several debt of one of the plaintiffs could not be set off against a joint demand. The judge rejected the evidence, and the jury, under his direction, found a verdict for the plaintiffs.
A. motion was made to set aside the verdict, and for a new trial.
p. 286Both of the defendants must sign and seal, or the one must show an authority from the other to execute the instrument for him. An authority to execute a deed, must be by deed. An agent cannot bind his principal by deed, unless he is authorized by deed.[1] A seal is essential to a deed, and it must be an actual sealing with wafer or wax, or some substance capable of receiving an impression.[2] The signing and sealing are not alone sufficient to give validity to a deed. There must be a delivery of it, also, by the party, or by his authority. It is settled, that one partner has no authority to bind his co-partner by deed.[3] In the case of Ball v. Dunsterville,[4] the bill of sale related to a partnership transaction, and the court relied oh the circumstance that it was executed by one of the partners, for himself and the other, in the presence of the other. In the present case, Brown, the subscribing witness, does not state that James Bloodgood was present when his partner executed the bond, or that he gave any manner of authority to L. Bloodgood to execute it for him. The subscribing witness is the only competent witness to prove the execution of a deed.[5] Where he is produced, or can be produced, no other evidence can be resorted to. This was acknowledged to be the rule of law in the case oí Ludlow and others v. Simond, decided in the court of errors,[6] where this point was fully discussed. It was proved that the other partner saw and approved of the deed before it was executed, and was in the store, at the time of its execution. This is sufficient to bring it within the principle of the decision in Ball v. Dunsterville.
I. Hamilton and Foot, for the defendants, contended, that the bond was not well executed by both of the defendants.
H. Bleecker, contra, relied on the case of Ball v. Dunsterville, as an authority to show that where one partner executes a deed for himself and his copartner, by authority of such partner, and in his presence, it is a good deed, though but once sealed.
One seal was sufficient, in this case, for both the obligors. It has been always held that one piece of w,ax may serve for several grantors, and that another- person may seal for the obligor. (Perk. s. 134.) In Lord Lovelace’s Case, (Sir W. Jones, 268.) it was admitted by the king’s attorney, that “ If one of the officers of the forest put one seal to the rolls, by assent of all
p. 287
the verderers, regarders, and other officers, it is as good as ~f every ~ne had put his several seal; as in case divers men enter into obligation, and they all consent and set but one seal to it, it is a good obligation of them alL" The late case of Ball v. Dunsterville (4 Term Rep. 313.) carries the rule to the extent contended for by the pIaintifi~ in the present case. It was there held that if one partner, in a transaction, seal a deed with one soal, for and on be.~ half of himself and his partner, and by- authority and in the pre~ sence of the other, it is a good execution of the deed for both. In the present case, one of the defendants sealed the bond, with one seal, for himself and his partner, with the consent of his part~ ner, and after the partner had seen and approved of the bond, kind while he was about the rtore, at the time of the execution~ This evidence was sufficient to carry the cause to the jury, and to justify them in finding it the deed of both.
This is the only point in the case deserving of any consideranon, for the objections to the award were not much relied on by ¿he counsel, and are of no weight.
Motion denied,