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Coral Gables, Inc. v. Kretschmer

Decided: May 14, 1936.

CORAL GABLES, INCORPORATED, A CORPORATION OF FLORIDA, PLAINTIFF-APPELLANT,
v.
SALLIE KRETSCHMER, DEFENDANT-RESPONDENT



On appeal from the Essex County Circuit Court.

For the plaintiff-appellant, Louis Rotberg.

For the defendant-respondent, Egner & Beatty.

Wells

The opinion of the court was delivered by

WELLS, J. This is an appeal from a judgment of nonsuit entered in the Essex County Circuit Court against the plaintiff-appellant.

The plaintiff brought suit upon a promissory note made by the defendant. The note was executed, delivered and payable in installments in the State of Florida and bore the date "March 10, 1925." The last interest payment was on "8/10/26" and unless it was a sealed instrument, action upon it would be barred under the statute of limitations of the State of Florida, as well as the State of New Jersey. The plaintiff claimed, however, that under the Florida statute, the note was effective as a sealed instrument by reason of the appearance of the printed word "(SEAL)" after the name of the maker.

At the trial the plaintiff offered in evidence the note and certified copy of several Florida statutes. The pertinent sections of these statutes read as follows: "A scrawl or scroll, printed or written, affixed as a seal to any written instrument shall be as effectual as a seal." Acts of 1893, chapter 4148, section 1.

"All written instruments heretofore or hereafter made with a scrawl or scroll, printed or written, affixed as a seal are declared to be sealed instruments, and shall be construed and received in evidence as such in all courts of this state." Id. section 2.

In granting the motion for a nonsuit the trial court cited Jacksonville, Mayport, Pablo Railway and Navigation Co. v. Hooper, 160 U.S. 514; 16 S. Ct. 379; 40 L. Ed. 515, to the effect that whether an instrument is under seal or not, is a question for the court upon inspection; that whether a mark or character shall be held to be a seal depends upon the intention of the executant as shown by the paper; and that it is as essential that the seal be the maker's as it is essential that

the signature be his. And the trial court found that there was nothing in or on the instrument, such as "signed and sealed," or "witness my hand and seal," which would in any way indicate on inspection that the maker thereof affixed her seal, or personally adopted the seal.

We might well have rested our judgment of affirmance upon the conclusions of the learned trial court were it not for the fact that the plaintiff in its brief before this court quotes citations from three cases decided by the courts of the State of Florida, to wit, Comerford v. Cobb, 2 Fla. 418; Langley v. Owens, 42 So. Rep. 457, 459; Grand Lodge, Knights of Pythias of Florida v. The State Bank of Florida, 84 Id. 528, and argues that these cases construe the Florida statutes which had been introduced in evidence at the trial, to mean that the mere presence of the printed word "(SEAL)" after the name of the maker of a promissory note is sufficient to constitute it a sealed instrument, regardless of the absence of any evidence, such as a recital of sealing in the instrument itself to show that this was the act of the maker.

These decisions, however, were not introduced as evidence before the trial court and we need not consider them here. Title Guarantee and Trust Co. v. Trenton Potteries Co., 56 N.J. ...


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