Smith v. Hart

1 Mo. 273

• Court: Supreme Court of Missouri
• Decided: April 15, 1823
• Status: Published

Opinion

Jones, J.,

delivered the opinion of the Court.

This was an action of covenant, brought by the plaintiff in error, being also plaintiff below, on a sealed instrument for the payment of a specific sum of money. Upon oyer prayed and given, it appeared that the deed signed by the defendants had but one seal, as used for the seal of both of them; on which they, the defendants, demurred generally, and the plaintiff joined in demurrer-; and judgment for th.e defendants on the demurrer.

The defendants contended that the deed declared on was not the deed of Tennille, as there was but one seal to both names. In the opinion of this Court, the defendants, by demurring generally to the declaration, admitted the deed declared on to be their act and.deed, in manner and form declared on; and if either of them had not actually signed or sealed-the instrument, it ought to have been pleaded by a plea of non est factum, verified by oath, and that it cannot be taken advantage of by general demurrer. Whether two individuals can adopt the same seal, as used for the several seal of each, is a question not necessary for this Court to give any opinion on, as we are clearly of opinion that the judgment of the Court below, on the general demurrer, is erroneous for the reasons above given. The judgment of the Court below is, therefore, hereby reversed; and this Court, proceeding to give such judgment as the .Court below ought to have given, do adjudge and consider that the plaintiff, Thoiras A. Smith, do recover against the defendants the sum of five hundred and eighty dollars for his damages, by occasion of the non-performance of the said covenant, in the said declaration mentioned; and that he also recover against the defendants his costs and charges, as well in this Court as in the Court below, and that he have thereof his execution from this Court.