Company....

Moulton v. Kershaw..

Munn v. Illinois...

579

340

70

440

171

192

437

222,379

Morganton Manufacturing Company v. Ohio River & Charleston Railroad

527

24

497

CONTRACTS

ALL AGREEMENTS DO NOT CONSTITUTE CONTRACTS

KIRKSEY & KIRKSEY

8 Alabama, 131 (1845)

Assumpsit by the defendant, against the plaintiff in error.

The plaintiff was the wife of defendant's brother, but had for some time been a widow, and had several children. In 1840 the plaintiff resided on public land, under a contract of lease, she had held over, and was comfortably settled, and would have attempted to secure the land she lived on. The defendant resided in Talladega County, some sixty or seventy miles off. On the 10th of October, 1840, he wrote to her the following letter:

"Dear Sister Antillico,-Much to my mortification, I heard that brother Henry was dead, and one of his children. I know that your situation is one of grief and difficulty. You had a bad chance before, but a great deal worse now. I should like to come and see you, but cannot with convenience at present. . . I do not know whether you have a preference on the place you live on or not. If you had, I would advise you to obtain your preference, and sell the land and quit the country, as I understand it is very unhealthy, and I know society is very bad. If you will come down and see me, I will let you have a place to raise your family, and I have more open land than I can tend; and on account of your situation, and that of your family, I feel like I want you and the children to do well."

Within a month or two after the receipt of this letter, the plaintiff abandoned her possession, without disposing of it, and removed with her family, to the residence of the defendant, who put her in comfortable houses, and gave her land to cultivate for two years, at the end of which time he notified her to remove, and put her in a house, not comfortable, in the woods, which he afterwards required her to leave.

A verdict being found for the plaintiff, for $200, the above facts were agreed, and if they will sustain the action, the judgment is to be affirmed, otherwise it is to be reversed.

ORMOND, J. (After stating his inclination to allow a recovery, proceeded): My brothers, however, think that the promise on the part

1

of the defendant was a mere gratuity, and that an action will not lie for its breach. The judgment of the Court below must therefore be reversed, pursuant to the agreement of the parties.

WHAT CONSTITUTES A SEAL?

WARREN V. LYNCH

5 Johnson, (New York) 239 (1819)

This was an action of assumpsit brought by the plaintiff, as the first endorser of a promissory note, against the defendant as maker. The note was as follows:

"Petersburg, Va., August 27, 1807.

"Four months after date I promise to pay Hopkins Robertson or order, the sum of $719.121/2 cents, witness my hand and seal. Payable in New York.

"THOMAS LYNCH. (L.S.)"

The flourish and initials L. S. at the end of the maker's name constituted what was called his seal. The defendant pleaded non assumpsit, with notice of special matter to be given in evidence at the trial.

On this evidence the judge was of opinion that the plaintiff was entitled to recover, and under his direction the jury found a verdict for the plaintiff for the amount of the note with interest.

KENT, C. J., delivered the opinion of the Court. The two questions made upon this case are: 1. What is the legal import of the instrument upon which the suit is brought?

1. The note was given in Virginia, and by the laws of that State it was a sealed instrument or deed. But it was made payable in New York, and according to a well-settled rule, it is to be tested and governed by the law of this State (4 Johns. Rep. 285). Independent then of the written agreement of the parties (and on the operation of which some doubt might possibly arise), this paper must be taken to be a promissory note, without seal, as contra-distinguished from a specialty. We have never adopted the usage prevailing in Virginia and in some other States, of substituting a scrawl for a seal; and what was said by Livingston, J., in the case of Meredith v. Hinsdale, 2 Caines, 362, in favor of such a substitute, was his own opinion and not that of the Court. A seal, according to Lord Coke (3 Inst. 169), is wax with an impression. A scrawl with a pen is not a seal, and deserves no notice. The law has not indeed declared of what precise materials the wax shall consist; and whether it be a wafer or any other paste or matter sufficiently