
    Metropolitan Life Insurance Company, Res’pt, v. S. B. McCoy, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed June, 1886.)
    
    1. Bond—Authority to affix a seal—When implied—When a question of FACT.
    The defendant, McCoy, was surety for S. oh a bond securing his faithful action as plaintiffs agent. In a suit on the hand for condition broken, one of the defenses interposed was, that the paper counted upon as a bond was not sealed when signed by McCoy, and that the seal was placed thereon, thereafter, without his knowledge, authority or sanction. Meld, that the trial judge erred in ruling as follows: That inasmuch as the paper on its face when signed by the defendant was in the form of an ordinary obligation of a bond, reading “ sealed with our seals” and so passed from his hands without dissent or remark as to the seal or its omission, it should be held in law that he impliedly assented- to the putting on of a seal to answer an intent manifest on the face of the instrument; that such should be held in law the natural prima facie intent of the party and was controlling-in the absence of evidence expressly showing a contrary intent. Also, held, that refusal of defendants request to go to the jury was error.
    2. Same—When “ Sealed with our seals ” surplusage.
    The words, “ Sealed with our seals ” alone and without any proof aliunde to give them significance are mere surplusage. They of themselves, neither invalidate the instrument nor raise any legal implication of an intent to have it changed in its legal effect in the future.
    Motion for a new trial on exceptions made by defendant at Albany circuit and ordered heard in the first instance at the general term.
    
      N. C. Moak and Worthington Frothingham, for app’lts; W. H. Arnoux, for res’pt.
   Bockes, P. J.

Case and exceptions ordered to be heard in the first instance at general term, a verdict having been directed for the plaintiff by the court.

The action was against the defendant as surety for George W. Sherman on his bond securing his faithful action as plaintiff’s agent. The condition of the bond was, in substance, that if Sherman, who was appointed plaintiff’s-agent, should faithfully conform to all instructions and directions which he, as agent, might receive from the plaintiff, and should remit all moneys received by him, less his commission, together with his account, then the obligation to be- • void, otherwise to remain of full force. We are of the opinion that a prima facie case was made by the plaintiff' on its proof, for a recovery as claimed, for the sum of $1,636.89, with interest, not, however, to exceed in the aggregate for principal and interest $2,000, the penalty of the bond, for which latter sum the verdict was directed.

One of the defenses interposed was that the paper counted on as a bond was not sealed when signed by the defendant, and that the seal was placed thereon thereafter without his knowledge, authority or sanction. The proof tended to establish, if indeed it did not conclusively establish, those facts. The learned judge held, in substance, that inasmuch as the paper on its face, when signed by the-defendant, was in the form of an ordinary obligation of a bond, read “sealed with our seals,” and so passed from his-hands without dissent or remark as to the seal or its omission, it should be held in law that he impliedly assented to the putting on of a seal to answer an intent manifest on. the face of the instrument; that such should be held in law the natural prima facie intent of the party, and was controlling in the absence of evidence expressly showing a different and contrary intent, and so holding, refused the defendant’s request to have the questions pertaining to the subject, or any question submitted to the jury, and directed a verdict for the plaintiff. To these rulings the defendant entered exception.

It is, of course, not disputed that the affixing a seal to a simple contract after its execution by a party, without his knowledge, consent or approval, is an alteration of the instrument, and invalidates it as against him in the absence of all proof, that it was affixed by mistake or by a stranger thereto.

So it has been well said that the seal converts a simple contract into a specialty, and makes it an obligation of different grade and character. This doctrine of the law is too familiar to require citation of authorities in its support. The question in this case was made to depend upon an implied consent on the part of the defendant to the subsequent affixing of the seal. The learned judge held that there was such implication on the face of the instrument, whereas the defendant insisted and now insists to the contrary, and that in any event the question of defendant’s consent was one of fact for the jury on all the evidence in the case. The learned judge put great stress on the form of the instrument that it also contained the words “sealed with our seals,” and therefrom himself drew the inference, as matter of law, that it was the intention of the defendant that seals should be thereafter attached, which was equivalent to a consent that this might be done. In this we are of the opinion he was in error. The instrument was complete, valid and binding upon the defendant without the seal, and consequently no inference would necessarily arise against an intention on his part that it was to remain unchanged. It is suggested that it was plainly his purpose that the instrument should have validity against him. But this purpose was answered by the paper as signed. It was operative and binding without the seal; and the legal inference in the absence of all proof to change it, would be that the defendant intended that the instrument should remain in form and in legal effect as when it passed from his hand on its execution.

The learned judge, however, held to the contrary. Then did the words “ sealed with our seals ” support the implication declared, as matter of law? Alone and without any proof aliunde to give them significance, these words were mere surplusage. They, of themselves, neither invalidated the instrument, nor raised any legal implication of an intent to have it changed in its legal effect in the future. This subject, in all its bearings under the proof in the case, was considered by Judge Redfield in Barnet v. Abbott (53 Vt., 120, 128, 129), and the decision in the case is directly and flatly against the ruling here challenged for error.

It should, perhaps, be observed that the case is entirely unlike those where blanks are left ill the instrument and after its execution filled in without the knowledge or consent of the person ostensibly bound by it. Here the instrument was complete in form and perfect in its legal effect when signed, and its alteration was equivalent to a forgery, unless the change was made under the authority or approval of the defendant.

If the evidence on this subject, submitted on the part of the defendant, was to be credited, and this was for the jury to determine, the seal was affixed to the instrument after he had signed it, without his knowledge, authority or approval; hence it was inoperative as to him, and it was error for the judge to hold, as matter of law, against this proof, that consent to the affixing of the seal was a necessary legal inference from its form and contents, and to direct a verdict for the plaintiff.

The motion for a nonsuit must be granted; new trial granted, costs to abide the event.

Landon and Booices, concur.  