Lynam v. Califer, 64 N.C. 572 (1870)

June 1870 · Supreme Court of North Carolina

64 N.C. 572

CHARLES W. LYNAM v. WILLIAM H. CALIFER and others.

Where a seal was attached, by misiahe and ignorance, to the name of a firm signed to a note given for value, the mistake was corrected in equity, and the plaintiff was allowed to recove ras if there had been no seal.

(McKay v. Simpson, 6 Ire. Eq. 452; and Womack v. Eacker, Phil. Eq. 161, approved.)

Bill in equity, beard by Watts, ./., at Spring Term 1870, •of Granville Court.

Tbe plaintiff stated that in 1866 be bad bargained to tbe defendant Califer a quantity of tobacco, at tbe price of $270; and that they applied to tbe defendant Long, to become, surety upon tbe note which Califer was to give; that Long agreed that if bis partner, tbe defendant Eeed, were willing, tbe firm name, “ Long & Co.,” might be signed thereto, and referred them to Eeed; and that having gone to Eeed,. who lived at some distance, be signed tbe name of tbe firm. He ais o stated that, by mistake and through ignorance on bis part, a seal was added to tbe signature; that Califer bad become insolvent, and that upon demanding tbe money from tbe other defendants, they declined to pay, upon tbe ground that Eeed bad no authority to execute a bond for tlie firm. Tlie prayer was tliat tlie defendants be declared liable, &c., and for farther relief.

Tlie defendants Long & Reed pnt their defence mainly upon an allegation that the plaintiff and Oalifer had misrepresented the amount of the note, as being about $100, instead of $270.

There was a decree pro confesso as to Oalifer.

Upon the trial it was agreed to refer the questions of fact to his Honor for decision.

He found the facts to be substantially as stated in the bill; that the note was drawn at the home of Reed, and that there was no misrepresentation, &c.

Judgment for the plaintiff, &c.; Appeal by the defendant.

Graham and G. M. Busbee, for the appellant.

Bogers & Batchelor, contra.

Settle, J.

This was a bill in equity seeking to correct a mistake, by putting out of the way a seal which was attached to the signatures of a firm name; and also to en force the payment of the debt.

All questions of fact as well as of law were submitted, by agreement of parties, to the decision of his Honor. The facts found are fully set forth in the statement of the case transmitted to this Court, and clearly justify his Honor in decreeing the relief which he granted. Indeed the bill and answers (without regard to proofs, upon which his Honor also acted) make a strong case for relief. It is against conscience for the defendants to take advantage of a mere mistake in attaching a seal to the name of their firm. The power of the Court to grant the relief prayed for, is discussed in McKay v. Simpson, 6 Ire. Eq. 452; and in Womack v. Eacker, Phil. Eq. 161.

Pee Cueiam. Judgment affirmed.