VAN ORSDEL, Associate Justice.
Appellant, defendant below, appeals from a judgment obtained in the Supreme Court of the District of Columbia on a promissory note, reading as follows:
Face of note:
“Miami, Fla., November 27, 1925.
“No. 1, $1,111.11.
“On or before one year after date, for value received, I promise to pay to the order of W. C. Jackson One Thousand One Hundred and Eleven and 11/100 Dollars at MIAMI BANK AND TRUST COMPANY, of Miami, Florida, with interest thereon at the rate of 8 per cent, per annum from date until fully paid. Interest payable semi-annually. The maker and endorser of this note further agree to waive demand, notice of non-payment, and in case suit shall be brought for the collection hereof, or the same has to be collected upon demand of an attorney, to pay reasonable attorney’s fees for making such collection. Deferred interest payments to bear interest from maturity at 8 per cent per annum, payable semi-annually.
“[Signed] Walter A. Wells [Seal]
“The Rochambeau [Seal]
“Due- 1926. Wash, D. C.
Back of note:
“Without recourse.
“[Signed] W. C. Jackson.”
[888]*888The note is a printed- form with the blanks typewritten. It was signed by the maker on a printed line which had the word “[Seal]” printed to the right, directly in line with the maker’s signature.
The declaration was met by a motion to strike on the ground that the action was barred by the statute of limitations of the District of Columbia. The bar of limitations was based, of course, upon the theory that the note is not under seal. Defendant’s contention is that, inasmuch as the note did not recite that it was signed and sealed by the maker, and there was no indication on the face of the note that the maker had adopted the printed seal, it cannot be held to be a sealed instrument. The motion to strike was denied.
We will consider first the question of whether or not the note given is a sealed instrument. If not, it is barred here by the statute of limitations. Although it is a Florida contract, the statute of limitations of the forum where the suit was-brought, namely, in the District of Columbia, controls, regardless of whether or not recovery would be barred in the state in which the cause of action arose. Townsend v. Jemison, 9 How. 407, 13 L.Ed. 194; M’Elmoyle v. Cohen, 13 Pet. 312,. 10 L.Ed. 177; Brunswick Terminal Company v. National Bank of Baltimore (C.C.A.) 99 F. 635, 48 L.R.A. 625; Thomas v. Clarkson, 125 Ga. 72, 54 S.E. 77, 6 L.R.A.(N.S.) 658.
There is considerable conflict in the state decisions as to whether or not an instrument, such as the present, with the word seal printed thereon, and no reference on the face of the instrument signifying it was intended as a sealed instrument, is to be treated as such, or as merely a simple contract. In an early decision in the District of Columbia, Green v. Lake, 13 D.C. (2 Mackey) 162, where a printed seal appeared on the note at the end of the line containing the signature of the maker, as appears in the present note, the court said: “The question was suggested in the outset, whether this was to be treated as a sealed instrument or a simple contract. The action is brought in debt, which would apply to an instrument bearing either character. It is in evidence that by the law of Mississippi, where this contract was made, this is a sealed instrument, and we have no hesitation in saying that by the law of the District of Columbia it must also be so regarded. Written scrolls have been, from time immemorial, regarded as seals here. For twenty years we have been in the habit of using printed forms of conveyancing •for real estate, with printed seals only, and to hold that these are not seals would be to upset many of the titles created during that time.”
This holding is upon the theory that where a person signs his name next to the printed seal, he adopts the same as his seal, and this prevails whether or not in the body of the instrument are contained additional words “Witness my hand and seal,” or “Signed and sealed.” “It is not necessary, as has been argued, that the scrawl must be adopted by the obligor, by a declaration in the body of the bond, or single bill, to make it his seal. It is sufficient if the scrawl be affixed to the bond, or bill, at the time of its execution, and delivery. For, if he execute and deliver it with the scrawl attached, it being considered here as equivalent to the wax or wafer, it is as much his seal, as if he had declared it to be so in the body of the instrument.” Trasher v. Everhart, 3 Gill & J. (Md.) 234.
We do not overlook the modern tendency to minimize the importance of the use of the seal, especially on negotiable instruments such as promissory notes. But the rule announced in Green v. Lake, supra, has never been overruled by the courts of this District. It established a rule of stare decisis, which has universally been followed, and which we think should not be set aside at this late date.
We now come to the consideration of the sufficiency of the affidavit of defense. On motion of counsel for plaintiff for judgment on the insufficiency of the affidavit of defense, under the seventy-third rule of the Supreme Court of the District of Columbia, judgment was entered for the plaintiff. This is assigned as error. The affidavit of defense alleges that defendant “is advised and believes, and upon such information and belief avers, and expects to prove at the trial hereof, that the consideration paid for the notes sued upon herein wholly failed; that the enforcement of payment of said notes is barred by the statute of limitations; that there has been no demand for payment or presentment of said notes; that the plaintiff corporation paid nothing of value for said notes; that said plaintiff is not a holder of said notes for value, or any consideration, in due course of business, and that said plaintiff acquired said notes after maturity and dishonor.”
[889]*889It is contended by counsel for plaintiff that the affidavit is defective in that it doeá not allege in particular the facts on which defendant relies to establish the grounds of defense alleged in the affidavit. Eliminating the averment that the enforcement of the note is barred by the statute of limitation, we think there are valid defenses sufficiently alleged, if established, to entitle the defendant to a trial of the issues to a jury. These are not fictitious defenses from anything that appears upon the face of the record. As this court, in Codington v. Standard Bank of Canada, 40 App.D.C. 409, speaking through Mr. Justice Robb, said: “As we have many times suggested, the object of the 73d rule is to promote justice by preventing, so far as possible, fictitious defenses. It was, of course, never intended as a substitute for a trial. If, therefore, the court, upon reading an affidavit of defense, is convinced that it has been made in good faith, and that a doubt exists as to the right of the plaintiff to recover, summary judgment ought not to be entered.”
Applying this rule to the affidavit of defense in the instant case, and the grounds of defense there alleged, we think there is nothing to indicate that the defense or defenses set up are fictitious, or for the purpose of delay in promoting the ends of justice. Allegations are made which, if established by competent evidence, would furnish a complete defense, and we see no reason why the defendant should not be permitted to have the facts of his case determined by a jury.
Free access — add to your briefcase to read the full text and ask questions with AI
VAN ORSDEL, Associate Justice.
Appellant, defendant below, appeals from a judgment obtained in the Supreme Court of the District of Columbia on a promissory note, reading as follows:
Face of note:
“Miami, Fla., November 27, 1925.
“No. 1, $1,111.11.
“On or before one year after date, for value received, I promise to pay to the order of W. C. Jackson One Thousand One Hundred and Eleven and 11/100 Dollars at MIAMI BANK AND TRUST COMPANY, of Miami, Florida, with interest thereon at the rate of 8 per cent, per annum from date until fully paid. Interest payable semi-annually. The maker and endorser of this note further agree to waive demand, notice of non-payment, and in case suit shall be brought for the collection hereof, or the same has to be collected upon demand of an attorney, to pay reasonable attorney’s fees for making such collection. Deferred interest payments to bear interest from maturity at 8 per cent per annum, payable semi-annually.
“[Signed] Walter A. Wells [Seal]
“The Rochambeau [Seal]
“Due- 1926. Wash, D. C.
Back of note:
“Without recourse.
“[Signed] W. C. Jackson.”
[888]*888The note is a printed- form with the blanks typewritten. It was signed by the maker on a printed line which had the word “[Seal]” printed to the right, directly in line with the maker’s signature.
The declaration was met by a motion to strike on the ground that the action was barred by the statute of limitations of the District of Columbia. The bar of limitations was based, of course, upon the theory that the note is not under seal. Defendant’s contention is that, inasmuch as the note did not recite that it was signed and sealed by the maker, and there was no indication on the face of the note that the maker had adopted the printed seal, it cannot be held to be a sealed instrument. The motion to strike was denied.
We will consider first the question of whether or not the note given is a sealed instrument. If not, it is barred here by the statute of limitations. Although it is a Florida contract, the statute of limitations of the forum where the suit was-brought, namely, in the District of Columbia, controls, regardless of whether or not recovery would be barred in the state in which the cause of action arose. Townsend v. Jemison, 9 How. 407, 13 L.Ed. 194; M’Elmoyle v. Cohen, 13 Pet. 312,. 10 L.Ed. 177; Brunswick Terminal Company v. National Bank of Baltimore (C.C.A.) 99 F. 635, 48 L.R.A. 625; Thomas v. Clarkson, 125 Ga. 72, 54 S.E. 77, 6 L.R.A.(N.S.) 658.
There is considerable conflict in the state decisions as to whether or not an instrument, such as the present, with the word seal printed thereon, and no reference on the face of the instrument signifying it was intended as a sealed instrument, is to be treated as such, or as merely a simple contract. In an early decision in the District of Columbia, Green v. Lake, 13 D.C. (2 Mackey) 162, where a printed seal appeared on the note at the end of the line containing the signature of the maker, as appears in the present note, the court said: “The question was suggested in the outset, whether this was to be treated as a sealed instrument or a simple contract. The action is brought in debt, which would apply to an instrument bearing either character. It is in evidence that by the law of Mississippi, where this contract was made, this is a sealed instrument, and we have no hesitation in saying that by the law of the District of Columbia it must also be so regarded. Written scrolls have been, from time immemorial, regarded as seals here. For twenty years we have been in the habit of using printed forms of conveyancing •for real estate, with printed seals only, and to hold that these are not seals would be to upset many of the titles created during that time.”
This holding is upon the theory that where a person signs his name next to the printed seal, he adopts the same as his seal, and this prevails whether or not in the body of the instrument are contained additional words “Witness my hand and seal,” or “Signed and sealed.” “It is not necessary, as has been argued, that the scrawl must be adopted by the obligor, by a declaration in the body of the bond, or single bill, to make it his seal. It is sufficient if the scrawl be affixed to the bond, or bill, at the time of its execution, and delivery. For, if he execute and deliver it with the scrawl attached, it being considered here as equivalent to the wax or wafer, it is as much his seal, as if he had declared it to be so in the body of the instrument.” Trasher v. Everhart, 3 Gill & J. (Md.) 234.
We do not overlook the modern tendency to minimize the importance of the use of the seal, especially on negotiable instruments such as promissory notes. But the rule announced in Green v. Lake, supra, has never been overruled by the courts of this District. It established a rule of stare decisis, which has universally been followed, and which we think should not be set aside at this late date.
We now come to the consideration of the sufficiency of the affidavit of defense. On motion of counsel for plaintiff for judgment on the insufficiency of the affidavit of defense, under the seventy-third rule of the Supreme Court of the District of Columbia, judgment was entered for the plaintiff. This is assigned as error. The affidavit of defense alleges that defendant “is advised and believes, and upon such information and belief avers, and expects to prove at the trial hereof, that the consideration paid for the notes sued upon herein wholly failed; that the enforcement of payment of said notes is barred by the statute of limitations; that there has been no demand for payment or presentment of said notes; that the plaintiff corporation paid nothing of value for said notes; that said plaintiff is not a holder of said notes for value, or any consideration, in due course of business, and that said plaintiff acquired said notes after maturity and dishonor.”
[889]*889It is contended by counsel for plaintiff that the affidavit is defective in that it doeá not allege in particular the facts on which defendant relies to establish the grounds of defense alleged in the affidavit. Eliminating the averment that the enforcement of the note is barred by the statute of limitation, we think there are valid defenses sufficiently alleged, if established, to entitle the defendant to a trial of the issues to a jury. These are not fictitious defenses from anything that appears upon the face of the record. As this court, in Codington v. Standard Bank of Canada, 40 App.D.C. 409, speaking through Mr. Justice Robb, said: “As we have many times suggested, the object of the 73d rule is to promote justice by preventing, so far as possible, fictitious defenses. It was, of course, never intended as a substitute for a trial. If, therefore, the court, upon reading an affidavit of defense, is convinced that it has been made in good faith, and that a doubt exists as to the right of the plaintiff to recover, summary judgment ought not to be entered.”
Applying this rule to the affidavit of defense in the instant case, and the grounds of defense there alleged, we think there is nothing to indicate that the defense or defenses set up are fictitious, or for the purpose of delay in promoting the ends of justice. Allegations are made which, if established by competent evidence, would furnish a complete defense, and we see no reason why the defendant should not be permitted to have the facts of his case determined by a jury. The motion for judgment should be denied, if any one of the defenses alleged is sufficient, if established, to constitute a good defense.
As this court said in St. Clair v. Conlon, 12 App.D.C. 161: “If there be nothing in the general statement of the facts of defense to indicate or suggest evasion or studied uncertainty of allegation or denial in matters plainly susceptible of clear and precise statement; and if it appear by any reasonable or fair construction that the facts so generally stated would constitute a defense to the plaintiffs action, in whole or in some part, the constitutional right of trial by jury must be accorded.”
It should be borne in mind that if the affidavit of merit required of the plaintiff be found insufficient, the remedy is still open to him to pursue his action to trial and judgment by the regular procedure provided. But the rule operates differently with the defendant. If for any reason his affidavit of defense is adjudged insufficient, a judgment is rendered against him, and he is foreclosed from the right of trial or opportunity to produce his evidence or make good his defense. While, therefore, the rule as to the affidavit of merit should be strictly construed, a contrary rule should govern as to the affidavit of defense. It should be liberally construed in favor of the defendant’s right to maintain and establish his defense. Unless, therefore, it appears on the face of the affidavit that an attempt is being made through sham and fictitious defenses to hinder and delay justice, or that the defenses alleged' are so carelessly stated as to render their interpretation doubtful or uncertain, the defendant should not be prevented from an opportunity to maintain .his defense.
The judgment is reversed with costs.