The promissory note was signed by the defendant in Brooklyn on March 10, 1925, and mailed by the defendant to the payee, A.J. Richey, in Florida pursuant to a contract under seal for the purchase of lands in Florida. A printed form was used with script or typewriting inserted in the blank spaces on the printed form. At the end of the space intended for a signature, in which the defendant wrote his name, appears the printed word "(seal)."
This action was not begun within six years after the note was due. In Merritt v. Cornell (1 E.D. Smith, 335), decided by the Court of Common Pleas in 1852, it was said: "At the present day, the distinction between sealed and unsealed instruments has almost ceased to exist, except in respect to the period of limitation of actions upon them" (p. 338). That period is fixed by statute and the Legislature there has continued the old distinction and has provided that: "an action upon a sealed instrument must be commenced within twenty years after the cause of action has accrued." (Civ. Prac. Act, § 47.) The question presented upon this appeal is whether the promissory note which the plaintiff in this action seeks to enforce is a "sealed instrument."
"The private seal of a person, other than a corporation, to any instrument or writing shall consist of a wafer, wax or other similar adhesive substance affixed thereto, or of paper or other similar substance affixed thereto, by mucilege or other adhesive substance, or of the word `seal,' or the letters `L.S.' opposite the signature." (General Construction Law [Cons. Laws, ch. 22], § 44.) "A contract under seal is a contract expressed in a writing which is sealed and delivered by the promiser." (American Law Institute, Restatement of the Law of Contracts, § 8.) Dispute may at times arise whether the substance affixed to the instrument was affixed by the obliger or adopted by him as his seal; whether the obliger wrote the words or letters opposite his signature or adopted as his seal such *Page 215 words or letters previously written or printed upon the paper. Such dispute has arisen in this case and, without waiting for a trial, the courts below have granted summary judgment determining that the note is not a sealed instrument.
In Matter of Pirie (198 N.Y. 209) the court laid down the rule to be applied by the court when such a dispute arises: "Ordinarily a seal affixed to a paper in the form of a promissory note changes it into a sealed instrument, which, under the Statute of Limitations, may run for twenty years; but the mere attaching of a seal after the signature does not raise a presumption that the note is a sealed instrument, unless there be a recognition of the seal in the body of the instrument, by some such phrase as `witness my hand and seal' or `signed and sealed.' The reason for this is that the mere attaching of a seal after a signature without any recognition of it in the body of the note or in connection with the signing, in the absence of evidence showing the time when, and the person by whom, the seal was affixed, would open the door to frauds and forgeries and enable evil-disposed persons to prevent the running of the six-years' Statute of Limitations, by merely attaching at the end of the note a seal. Under such circumstances a seal is regarded merely as surplusage and the character of the note is not changed" (p. 215). That statement of the applicable rule has been followed in all subsequent cases in this State, and is in accord with decisions in many other jurisdictions. (See 1 Williston on Law of Contracts [Revised ed.], § 209.) We are agreed that there should be no departure from that rule.
In this case there is no "recognition of the seal in the body of the instrument" but it does appear from an inspection of the instrument and from the affidavits of the parties that the word "seal" was printed opposite the signature of the defendant at the time when he signed the instrument and put it in circulation. Thus we have here indisputable evidence "showing the time when, and *Page 216 the person by whom, the seal was affixed," which was wanting in the Pirie case.
Though this evidence destroys what we said in Matter of Pirie was the "reason" for the rule that, in the absence of recognition of the seal in the body of the instrument, no presumption arises that the note is a sealed instrument, yet it is now said that even this evidence must be supplemented by other proof that it was "the intention of the parties to make it a sealed instrument." Undoubtedly it must appear that such intention did exist; the problem, however, is whether in this case the evidence is sufficient to permit or even dictate a finding that the intention did exist.
Certainly the position of the printed word "seal" immediately after the defendant's signature leads fairly to the inference that the defendant saw that word and put the note in circulation knowing that it was there. Perhaps he did not, in fact, intend to indicate thereby that the note was to be considered a sealed instrument, but he manifested such intention by his acts. The word "seal" in that position constitutes the seal of the person signing the instrument, as "seal" is defined by the statute, and gives the note the appearance of a sealed instrument. It could not have any other purpose. Not the undisclosed intention of a party to a contract but the intention manifested by his acts or words, is the measure of his obligation. So here, evidence that the defendant put in circulation an instrument bearing what is, in law, his seal establishes that the note is a "sealed instrument." It is not disputed that the instrument was executed and delivered by the defendant and had a valid inception. The defendant should not be heard to say that he intended that the instrument should have a legal effect different from that which a person receiving it would be justified in ascribing to it.
That is the general rule as formulated in the Restatement of the Law of Contracts: *Page 217
Section 96.
"A seal is a piece of wax, a wafer or other substance, affixed to the paper or other material on which a promise, release or conveyance is written, or a scroll or sign, however made, on such paper or other material, or an impression made thereon; provided that by a recital or by the appearance of the document an intention of the promiser, releasor or grantor is manifested that the substance, scroll, sign or impression shall be a seal.
"Comment.
* * * * * * *
"Under the Section the question whether a seal is upon a document is to be determined from the document itself. Evidence of extrinsic circumstances is not admissible to prove or disprove this. Such circumstances may, however, be shown to aid the determination of the questions whether a promisor affixed or adopted a seal (see § 98) and whether the document has been delivered * * *."
Section 98.
"(1) A promisor who delivers a written promise to which a seal has been previously affixed or impressed with apparent reference to his signature, thereby adopts the seal.
"(2) A promisor who delivers a written promise to which a seal has been previously affixed or impressed with apparent reference to the signature of another party to the document, is presumed to have adopted the seal unless extrinsic circumstances show a contrary intention.
"Comment.
"a. Under the rule stated in subsection (1) extrinsic evidence is not admissible; under the rule stated in subsection (2) such evidence is admissible."
Nothing to the contrary was said or decided in Matter ofPirie (supra) or in Weeks v. Esler (143 N.Y. 374), or any other cases in this court; nor have our decisions been generally construed as stating a different rule. (Cf. *Page 218 authorities cited in the opinion of CRANE, Ch. J.) True, the unexplained presence of a seal upon a note is not itself sufficient proof that the maker "intended to, or did, affix it" (Weeks v. Esler), but proof that the maker did affix the "seal" or put the note in circulation bearing what is apparently his "seal" is sufficient. The weight of authority including the cases cited in Matter of Pirie support that conclusion.
The judgment should be reversed, etc.
O'BRIEN, HUBBS and FINCH, JJ., concur with CRANE, Ch. J.; LEHMAN, J., concurs in opinion in which LOUGHRAN and RIPPEY, JJ., concur.
Judgment accordingly.