Graham v. Holt, 25 N.C. 300, 3 Ired. 300 (1843)

June 1843 · Supreme Court of North Carolina

25 N.C. 300, 3 Ired. 300

ROBERT GRAHAM, ADM’R. vs. JOSEPH HOLT.

June 1843

paper writing, purporting to be a bond, signed and sealed by a party, ia which a blank is left for the sum to be afterwards inserted, which blank is afterwards filled up and the paper delivered, not in the presence of the party signing nor by any person having authority from him under seal, is not the bond of the party so signing and sealing.

He, who attempts to execute or consummate a deed, whether for money or other property, as agent for another, must be armed with an authority under seal.

In every good bond there must be an obligor and an obligee, and a sum in which the former is bound.

Before one partner or his representative can sue another partner at law, the settlement of the firm must be complete and a balance struck.

The cases of McKee v Sicks, % Dev. 379, and Davenport v Sleight, % Dev. & Bat. 381, cited and approved.

Appeal from the Superior Court of Law of Orange County, at the Special Term in June, 1843, his Honor Judge Nash presiding.

This was an action of debt, in which the plaintiff declared in two counts: First, on a bond for two hundred and sixty-five dollars and two cents. Secondly, on a simple contract for the samo amount. The defendant pleaded the general issue to each count. On the trial the plaintiff produced a bond for the sum stated in the declaration, payable at nine months, and dated the 3d February, 1839, and proved the defendant’s signature thereto. The defendant called as a witness John Holt, between whom and himself releases had been passed, so as to make him a competent witness.— He stated, that he, the witness, the defendant and the plaintiff’s intestate, Robert M. Graham, had been partners in the trade of merchandize at a store in the county oí Chatham— that the said intestate, who was the acting partner, having died in January, 1839, the plaintiff, as his administrator, and the other two partners met at the store and commenced selling off the goods at auction — that it was apprehended that the goods would be sacrificed by this mode of selling, and the sale was stopped — that the partners then agreed, that the defendant should take the whole of the goods at New York cost at nine months’ credit from that time, and should pay each of the other parties interest on his third part after that period — that it was also agreed that the defendant was not to pay these amounts, unloss, on a settlement of the concern, there were profits to a like, amount — and that no settlement had been made — that an inventory was then taken of the goods, and they were delivered to the defendant as his absolute property — that the amount of the goods so delivered was not then added up — that some time afterwards the three parties aforesaid met at a muster, when the plaintiff said he must have something to return to court, as administrator, for his intestate’s part of the concern — that the bond in question was then drawn and signed and sealed by the defendant, but, the witness not having the inventory present and the amount of goods taken by the defendant not being exactly known, the sum of money to be inserted in the bond was left blank, and it was agreed that the witness should take the bond in blank, add up and ascertain the amount of the inventory, when he went home, and insert one third thereof in the bond and hand it to the plaintiff — and that the same conversation, which had passed at the store in regard to payment, was, as the witness believed, then repeated — that he, the witneoss, did as directed, and, after inserting the proper sum, delivered the bond to the plaintiff. In support of the second count, the plaintiff offered to shew, that profits had been realized by the concern, but his Honor rejected the evidence. But his Honor, being of opinion that no recovery could be had upon the evidence offered, the jury found a verdict in favor of the defendant, and judgment being rendered pursuant thereto, the plaintiff appealed.,

Graham for the plaintiff.

Norwood for the defendant.

Daniel, J.

As to the first count. A bond is the acknowledgment of a debt under seal, the debt being therein Particularly specified. In every good bond there must be an obligor and an obligee, and a sum in which the former is bound. Shep. Touch. 56. Com. Dig. Obligation A. Hurleston, 2. In New York, ex parte Therwin, 8 Cowen 118, and some other of the American cases, the nisiprius decision before Lord Mansfield of Traxira v Evans, 1 Anst. 229 in noia has been followed. That case was, where a party executed a bond with blank spaces for the name and sum, and sent an agent, without a power of attorney under seal, to raise money on it, the agent occordingly filled up the blanks with the sum and the obligee’s name, and delivered the bond to him. On the plea of non estfactnm the bond was considered well executed. But the case of Traxira v Evans, has been by this court twice overruled, as attempting to establish a distinction in the mode of executing deeds by attorney, where the object was to raise or secure money, and when it was to operate as a conveyance — the first, by a power of attorney not sealed, the other with a power of attorney under seal. The notion with us has always been, what we learned from Co. Lit. 52 (a.) and the Touchstone 57, that he who executes a deed as agent for another, be it for money or other property, must be armed with an authority under seal. McKee v Hicks, 2 Dev. 379. Davenport v Speight, 2 Dev. & Bat. 381. The insertion of the sum in the blank space was intended to consummate the deed ; it was done without legal authority, and the instrument is void as a bond. -

As to the second count. Before one partner or his representative can sue another partner at law, the settlement of the firm must be complete and a balance struck. Colyer on Part. 152. Fromand v Coupland, 2 Bing. 170.

We see no error in the opinion of the court on either of the counts, and the judgment must be affirmed.

Pun Curiam. Judgment affirmed.