Mr. Justice Magruder
delivered the opinion of the court:
Upon the trial of. this case in the court below, the defendants there, who are the appellants here, offered to prove by John J. Ryan, one of the defendants, that the contract, offered in evidence by the plaintiff, and described in the statement preceding this opinion, was signed by the parties to it, upon the express understanding and agreement between said parties, that it was not to become operative, unless the defendants obtained a certain other contract from the city of Chicago, and that they never obtained such other contract from the city. The plaintiff below, who is the appellee here, objected to the offer, and to the introduction of the proof contemplated by the offer; and the objection so made was sustained by the court, and exception to the ruling of the court was duly saved.
The only question is, whether the trial court erred in refusing to admit the testimony offered as aforesaid by the appellants. It is claimed by the appellants, that it was competent for them to show, that the contract was signed by the parties to it under a verbal agreement, that it was not to become operative until the happening of a subsequent event, to-wit: the obtaining of a certain other contract from the city of Chicago. We are of the opinion that the court below committed no error in its ruling upon this subject. The contract in question is not to be considered otherwise than as a contract, having seals appended to the names of all the signers thereof. It is true, that no seals appear opposite the individual names of Ryan and Hayes; but seals follow the names of Warren and Cooke, and the firm name of J. J. Ryan & Co., of which Ryan and Hayes were members. By the attesting clause of the contract, the parties, signing the same, substantially state, that the contract is under their hands and seals. The contract purports, upon its face, to be given under the hands and seals of the signers thereof. It will, therefore, be presumed that all the signers of it intended to seal it, inasmuch as the attesting clause indicates such an intention on their part. When a bond or other sealed instrument purports on its face to be sealed by all its signers, and there are several seals to it, but not so many as there are names, the 'court will presume that each person signing it adopted some one of the seals. (Davis v. Burton, 3 Scam. 41; McLean v. Wilson, id. 50; Eames v. Preston, 20 Ill. 389).
It follows, that the instrument, here sued upon, is an instrument under seal. The rule is, that “evidence of parol agreements and understandings, antecedent to, or contemporaneous with, the execution of an instrument under seal, is not admissible to vary the terms of the written instrument.” (Heisen v. Heisen, 145 Ill. 658). In McAleer v. United States, 150 U. S. 424, an employe in the treasury department obtained letters patent for the invention of an improvement in paper perforating machines, which was of use in the department, and granted the department the right to make and use machines, containing such improvement, to the full end of the term of the letters patent; it was sought to defeat the contract by showing a verbal agreement, between such employe and one of the superintendents of a bureau in the department, to the effect that such employe should be retained and employed in the bureau as a machinist, as long as the bureau continued to use the invention, and that he was subsequently discharged; it was there held, that the instrument constituted a contract, fully executed on both sides, which gave the right to the department to make and use machines to the end of the term, and that the contract could not be contradicted or varied by proof of a collateral parol agreement inconsistent with its terms.
Neither a deed, nor any other sealed instrument, can be delivered to the grantee or the obligee himself as an escrow, to take effect upon a condition not appearing on the face of such deed or other instrument. Such deed or other instrument becomes absolute at law, unless the delivery is made to a stranger. (McCann v. Atherton, 106 Ill. 31; Stevenson v. Crapnell, 114 id. 19; Weber v. Christen, 121 id. 91). Undoubtedly, the delivery of a written contract is necessary to give it binding effect, and delivery is a question of intent; and the character of the delivery, whether absolute or conditional, may be established by parol. (Jordan v. Davis, 108 Ill. 336). But, while it may be shown that a deed or contract is not to be delivered until a condition is performed, yet it cannot be shown by parol, that actual delivery was made under an agreement, that a condition should be performed, and that the deed or contract should not be operative unless it was performed. In the one case, the purpose of the proof is to show want of a legal delivery, but in the other case the effect of the proof is to contradict an instrument, absolute on its face, by showing, contrary to its terms, that it is not absolute, but only conditional. (Devlin on Deeds, secs. 295, 315; Ward v. Lewis, 4 Pick. 518).
In the case at bar, the signing, sealing and delivery of the contract between the parties is established beyond question, and there is no evidence of a conditional delivery of the same. The contract cannot be altered by a prior par,ol agreement. When a deed or other instrument is handed by the grantor to the grantee, or by the obligor to the obligee, simply for the purpose of having the party, to whom it is thus handed, obtain the signatures of other parties thereto, or obtain the guaranty of some third person thereon, there is no delivery, but a mere manual transfer of possession. But where the deed or instrument, being ready for delivery, is handed to the grantee or obligee with the intention at the time of passing- a present title, there is a delivery, and parol evidence that it was not to become operative, until the performance of some condition, is not proper. (Stanley v. White, 160 Ill. 605).
By the contract here, appellants agreed to manufacture a certain number of specimens of the invention during a series of years, and to pay appellee certain amounts therefor. Appellants thus made an absolute and unconditional agreement. The offer to show, that the appellants only agreed to manufacture, and to pay for the specimens they manufactured, upon condition that they obtained a certain contract from the city of Chicago was an attempt to vary and contradict the terms of their own written undertaking.
It is said, however, that a different rule prevails in regard to instruments under seal from that which applies to instruments not under seal, and that the contract in the present case, although having seals attached to it, is not necessarily such a contract, as is required by the law to be under seal. The rule is held to apply to instruments not under seal, as well as to instruments under seal. In Foy v. Blackstone, 31 Ill. 538, it was held, that the maker of a promissory note, absolute on its face, cannot show against the payee an oral contemporaneous agreement, which would make the note payable on a contingency. In the Foy case, there was an agreement between a railroad company and a subscriber to its stock, that the latter should not be required to pay his subscription, until all the stock was subscribed, and that a certain bond and certain coupon notes, which had been given by him inpayment of his subscription to said stock, should not be enforced until the whole amount of the capital stock required to build the road should be subscribed.
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Mr. Justice Magruder
delivered the opinion of the court:
Upon the trial of. this case in the court below, the defendants there, who are the appellants here, offered to prove by John J. Ryan, one of the defendants, that the contract, offered in evidence by the plaintiff, and described in the statement preceding this opinion, was signed by the parties to it, upon the express understanding and agreement between said parties, that it was not to become operative, unless the defendants obtained a certain other contract from the city of Chicago, and that they never obtained such other contract from the city. The plaintiff below, who is the appellee here, objected to the offer, and to the introduction of the proof contemplated by the offer; and the objection so made was sustained by the court, and exception to the ruling of the court was duly saved.
The only question is, whether the trial court erred in refusing to admit the testimony offered as aforesaid by the appellants. It is claimed by the appellants, that it was competent for them to show, that the contract was signed by the parties to it under a verbal agreement, that it was not to become operative until the happening of a subsequent event, to-wit: the obtaining of a certain other contract from the city of Chicago. We are of the opinion that the court below committed no error in its ruling upon this subject. The contract in question is not to be considered otherwise than as a contract, having seals appended to the names of all the signers thereof. It is true, that no seals appear opposite the individual names of Ryan and Hayes; but seals follow the names of Warren and Cooke, and the firm name of J. J. Ryan & Co., of which Ryan and Hayes were members. By the attesting clause of the contract, the parties, signing the same, substantially state, that the contract is under their hands and seals. The contract purports, upon its face, to be given under the hands and seals of the signers thereof. It will, therefore, be presumed that all the signers of it intended to seal it, inasmuch as the attesting clause indicates such an intention on their part. When a bond or other sealed instrument purports on its face to be sealed by all its signers, and there are several seals to it, but not so many as there are names, the 'court will presume that each person signing it adopted some one of the seals. (Davis v. Burton, 3 Scam. 41; McLean v. Wilson, id. 50; Eames v. Preston, 20 Ill. 389).
It follows, that the instrument, here sued upon, is an instrument under seal. The rule is, that “evidence of parol agreements and understandings, antecedent to, or contemporaneous with, the execution of an instrument under seal, is not admissible to vary the terms of the written instrument.” (Heisen v. Heisen, 145 Ill. 658). In McAleer v. United States, 150 U. S. 424, an employe in the treasury department obtained letters patent for the invention of an improvement in paper perforating machines, which was of use in the department, and granted the department the right to make and use machines, containing such improvement, to the full end of the term of the letters patent; it was sought to defeat the contract by showing a verbal agreement, between such employe and one of the superintendents of a bureau in the department, to the effect that such employe should be retained and employed in the bureau as a machinist, as long as the bureau continued to use the invention, and that he was subsequently discharged; it was there held, that the instrument constituted a contract, fully executed on both sides, which gave the right to the department to make and use machines to the end of the term, and that the contract could not be contradicted or varied by proof of a collateral parol agreement inconsistent with its terms.
Neither a deed, nor any other sealed instrument, can be delivered to the grantee or the obligee himself as an escrow, to take effect upon a condition not appearing on the face of such deed or other instrument. Such deed or other instrument becomes absolute at law, unless the delivery is made to a stranger. (McCann v. Atherton, 106 Ill. 31; Stevenson v. Crapnell, 114 id. 19; Weber v. Christen, 121 id. 91). Undoubtedly, the delivery of a written contract is necessary to give it binding effect, and delivery is a question of intent; and the character of the delivery, whether absolute or conditional, may be established by parol. (Jordan v. Davis, 108 Ill. 336). But, while it may be shown that a deed or contract is not to be delivered until a condition is performed, yet it cannot be shown by parol, that actual delivery was made under an agreement, that a condition should be performed, and that the deed or contract should not be operative unless it was performed. In the one case, the purpose of the proof is to show want of a legal delivery, but in the other case the effect of the proof is to contradict an instrument, absolute on its face, by showing, contrary to its terms, that it is not absolute, but only conditional. (Devlin on Deeds, secs. 295, 315; Ward v. Lewis, 4 Pick. 518).
In the case at bar, the signing, sealing and delivery of the contract between the parties is established beyond question, and there is no evidence of a conditional delivery of the same. The contract cannot be altered by a prior par,ol agreement. When a deed or other instrument is handed by the grantor to the grantee, or by the obligor to the obligee, simply for the purpose of having the party, to whom it is thus handed, obtain the signatures of other parties thereto, or obtain the guaranty of some third person thereon, there is no delivery, but a mere manual transfer of possession. But where the deed or instrument, being ready for delivery, is handed to the grantee or obligee with the intention at the time of passing- a present title, there is a delivery, and parol evidence that it was not to become operative, until the performance of some condition, is not proper. (Stanley v. White, 160 Ill. 605).
By the contract here, appellants agreed to manufacture a certain number of specimens of the invention during a series of years, and to pay appellee certain amounts therefor. Appellants thus made an absolute and unconditional agreement. The offer to show, that the appellants only agreed to manufacture, and to pay for the specimens they manufactured, upon condition that they obtained a certain contract from the city of Chicago was an attempt to vary and contradict the terms of their own written undertaking.
It is said, however, that a different rule prevails in regard to instruments under seal from that which applies to instruments not under seal, and that the contract in the present case, although having seals attached to it, is not necessarily such a contract, as is required by the law to be under seal. The rule is held to apply to instruments not under seal, as well as to instruments under seal. In Foy v. Blackstone, 31 Ill. 538, it was held, that the maker of a promissory note, absolute on its face, cannot show against the payee an oral contemporaneous agreement, which would make the note payable on a contingency. In the Foy case, there was an agreement between a railroad company and a subscriber to its stock, that the latter should not be required to pay his subscription, until all the stock was subscribed, and that a certain bond and certain coupon notes, which had been given by him inpayment of his subscription to said stock, should not be enforced until the whole amount of the capital stock required to build the road should be subscribed. But it was held, that proof of the agreement in question was incompetent, because it would go to the extent of varying the terms of a note, which was absolute on its face. Proof, offered for the purpose of showing that a note which appears on its face to be given for one purpose, is, in truth and in fact, given for a different purpose, is inadmissible.
In Baum v. Parkhurst, 26 Ill. App. 128, it was held, that parol evidence was inadmissible to show, that a renewal receipt for the extension of a policy of insurance, absolute in its terms and delivered to the insured, was a merely conditional contract. In the latter case it was said: “So far as the instrument purported to pass a right or evidence a contract, it was conclusive upon the parties. It is urged by appellee, that the paper involved in this case was not under seal and was not a deed, and that, therefore, the law, that a deed cannot be delivered in escrow to a contracting party, has no application here. The law of escrow is not confined to sealed instruments. A promissory note or other simple contract in writing, as well as a deed, may be delivered as an escrow, and the law of escrows is substantially the same in both cases, and such note or contract cannot be delivered directly to the promisee to be held by him as an escrow.” The rule is well settled that, if a deed is delivered to the party or his agent, and not to a stranger, it is absolute, and parol evidence of conditions qualifying the delivery is inadmissible. (Cook v. Barker, 49 N. Y. 110). Again, in Massmann v. Holcher, 49 Mo. 87, it was said: “An escrow is defined to be a deed delivered to a stranger, to be by him delivered to the grantee upon the happening of certain conditions, upon which last delivery the transmission of title is complete. But a note, as well as a deed, may be delivered in escrow, and the law of escrows is substantially the same in both cases. In either case, it is necessary that the instrument, in the first instance, should be delivered to a stranger, that is, to a person not a party to the contract. Neither a note nor deed can be delivered to the grantee or promisee to be held by him as an escrow.”
Where an agreement is under seal, it is not competent, either at common law or under the law of this State, to o modify or change it by proof of a subsequent parol understanding or agreement. (Baltimore and Ohio Railroad Co. v. Illinois Central Railroad Co. 137 Ill. 9). In the application of this rule, it makes no difference that the contract may be one, which would have been valid without any seal. In Hume Bros. v. Taylor, 63 Ill. 43, there was a contract under seal for the delivery and receipt of 1000 head of hogs of a certain weight, and at a certain place, and on a certain date; and to secure it each party delivered its note to a third party to be held for the use of the party, injured by a breach of the contract; suit was brought by the vendors, and a plea was interposed, that the 1000 hogs were not delivered; to this plea replications were filed, stating that a new contract was made by parol, in which it was agreed that the plaintiffs should receive a less number of hogs; in that case we said: “The common law rule seems to be well settled, that a sealed executory contract can not be modified or in part changed by parol, so as to authorize either party to sue upon it, and the cases that support this doctrine are numerous.” In Loach v. Farnum, 90 Ill. 368, we said: “In very many, if not in most of the cases, both English and American, in which the doctrine under discussion has been announced, the contracts would have been perfectly valid without any seal. A seal was not essential in order to make the contract in Hume Bros. v. Taylor, a valid and binding contract for the delivery of hogs; and yet the parties there, as here, elected to enter into a sealed contract.” In Barnett v. Barnes, 73 Ill. 216, there was a lease under seal, and it was sought to show by a verbal agreement, made while the lessee was in possession, that the rent was reduced, but it was held, that it was not competent for the.parties to change the terms of the lease by parol; and it was said: “A sealed executory contract cannot be modified or in any part changed by parol agreement, so as to authorize either party to sue upon it.”
The judgment of the Appellate Court is affirmed.
Judgment affirmed.