Williams v. Springs, 29 N.C. 386, 7 Ired. 386 (1847)

Aug. 1847 · Supreme Court of North Carolina

29 N.C. 386, 7 Ired. 386

H. B. WILLIAMS vs. ALEXANDER SPRINGS & AL.

In an action of debt on a covenant, proof of the hand-writing of the obligors, together with possession by the obligee, is evidence from which the jury may presume a delivery, in the absence of proof to the contrary.

The circumstance of there being three seals affixed, without any names before them, is not sufficient to rebut the presumption of delivery, or to shew that those who did sign did not intend, that the covenant should not be delivered, until the other persons signed it.

A covenant was executed by B. and C. reciting that whereas A. had loaned to D. $1,600 and D. was desirous of securing the same, they, B. and C. bound themselves to A. that if D. did not pay the debt before the 30th day of February, 1844, they would pay it at the time stipulated and waive notice. This is not a mere guaranty, but an absolute promise to pay the money, if D. did not pay it at the time stipulated, and no notice was necessary.

The cases of Vanhooh v. Barnett, 4 Dev. 268, Blume v. Bowman, 2 Ired. 338, and Gardner v. King, 2 Ired. 300, cited and approved.

Appeal from the Superior Court of Law of Mecklen-burg County, at a Special Term in. November 1846, his Honor Judge Peaksoh presiding.

This action is brought on the following covenant: “ Whereas H. B. Williams hath this day advanced for W. J. Alexander and Nat. W. Alexander the sum of sixteen hundred dollars, and whereas the said Alexanders are desirous of securing the said Williams in the payment of the same: Now we, the undersigned, in the event the said Alexanders should fail well and truly to pay the said Williams the sum aforesaid on the 30th day of February, A. D. 1344, do for value received hereby covenant promise and agree to and with the said Williams to pay the same — and we hereby agree, in the event the said Alexanders should fail to pay the same at the time stipulated, to waive notice thereof. Given under our hands and seals, August 80th, 1843.” The covenant was signed and sealed by the defendants and M, Hoke, and there are three other seals without any names before them. There was no witness to the deed, and no other evidence of its delivery, than its being in possession of the plaintiff and produced by him on the trial. The plaintiff offered in evidence a single bill under seal, executed by W. J. Alexander and N. W. Alexander, for the sum of $1602 37, payable to the plaintiff six months after date, and dated August 1843, but on what day does not appear. The reading of this bond was objected to by the defendants but admitted by the Court. The action was brought on the 5th of August, 1844. The covenant was admitted in; evidence upon proof of the hand-writing of the defendants-. The defendants alleged that the covenant was to have been signed by three other solvent persons, before it was to be their deed, but gave no evidence to that effect. The recovery was opposed upon three grounds; 1st. that there was no sufficient proof of the execution of the covenant ;• 2ndly. that there was no evidence, that the sum guaranteed by the covenant had not been paid by the Messrs. Alexander ; 3rdly. that the bond should not have been admitted, and, without it, there was no evidence, that the sum stated in the covenant was advanced by the plaintiff to the Messrs. Alexander. W. J. Alexander was produced as a witness, and, on his examination, stated, that he borrowed the money from the plaintiff and agreed to give the guaranty of the defendants with W. Hoke. The objections were all over-ruled and a verdict rendered for the plaintiff. From the j udgment thereon, the defendants-appealed.

J. H. Wilson, for the plaintiff.

Boyden and Iredell, for the defendants.

Nash, J.

We concur with his Honor in the Court below, and for the reasons he assigns. Proof of the handwriting of the defendants, together with possession by the plaintiff, was evidence, from which a jury might presume a delivery by the,, defendants in the absence of any proof to the contrary. Vanhook v. Barnet, 4 Dev. 268, Blame v. Bowman, 2 Ire. 338. The latter case sustains the opinion of his Honor, that the circumstance of the three seals affixed, without any names before them, was not sufficient to rebut that presumption, or to shew that the defendants did not intend, that the covenant should not be delivered, until other persons, signed it. In that case not only were there three vacant seals, but the name of another obligor in the bond, who did not sign it. The second objection is founded upon the idea, that the covenant was a guaranty, on the part of the defendants, of the repayment of the money borrowed by the Messrs. Alexander. Such may have been the intention of the parties, but such certainly is not the effect of the deed. It is, on their part, an obligation to pay to the plaintiff the money mentioned in it, if on the 30th of February, 1844, the Messrs. Alexander did not pay i t. This condition is inserted for their benefit-, and is to be proved affirmatively, by them. To enable the. plaintiff to recover in this action, it was not necessary for him to have made a demand on the Messrs. Alexander, or to prove that they had not paid. The obligation ©f the defendants to pay became complete, upon the expiration of the time, within which they, the Alexanders, were to make payment and their failure to doit. Gardner v. King, 2 Ire. 300. The introduction of the bond, given by the Messrs. Alexander, was entirely harmless and of no effect. If it was. intended by the plaintiff as evidence to prove 'the sum borrowed, the recital in the covenant wan sufficient, and the bond was, therefore, irrelevant. If any error was committed by suffering its introduction, it was entirely redeemed by the instructions given to the jury, as to their measure of damages, if they found for the plaintiff. We concur with his Honor on all the points ruled by him.

PER CüRIAM. Judgment affirmed.