On appeal of Dan Daniels from a judgment of $209.62 against him in the District Court of the Fourth Judicial District of the county of Union following an award by the judge sitting without a jury.
For the plaintiff-respondent, Julius Kass.
For the defendant-appellant, Saul Neivert.
Before Justices Case and Heher.
The opinion of the court was delivered by
CASE, J. The state of demand grounds in an alleged sale of furniture by plaintiff's assignor, Roessler Furniture Co., to the defendants for the sum of $251.62, upon which $42 had been paid, leaving $209.62 as the amount claimed. The suit is upon a paper-writing, self-entitled a "Furniture and Merchandise Lease," executed May 9th, 1930, the last payment whereon was made November 11th, 1930. The specification of determinations charges three trial errors, (1) the refusal to direct a verdict in favor of the defendant, (2) and (3) the admission of certain exhibits which are not before us and concerning which we lack the necessary data for a review. Appellant presents as his excuse for the deficient record that
his opponent declined to yield custody of the exhibits. He would reserve the privilege of making complete argument thereon when the exhibits are made available; but this he may not do. This is the argument of the appeal and we consider only what is properly before us.
Appellant argues that the court below erred in refusing to direct a verdict, for the reason that the lease sued upon was a parole agreement against which the statute of limitations had fully run. The argument turns upon the question whether the instrument was under seal. There was no seal and no scroll, ink or other device by way of seal. At the close of the writing were these words: "Witness * * * the hand and seal of the party of the second part * * *." The appellant was the party of the second part. On this branch of the controversy the question concededly is: Did the quoted language serve to make the writing a sealed instrument?
The statute of November 1st, 1797 (Pat. p. 254), provided:
"That any instrument for the payment of money, to which the person making the same shall affix a scroll, or ink, or other device, by way of seal, shall be taken and adjudged to be of the same force and obligation as if it were actually sealed with wax."
Chief Justice Kirkpatrick, speaking for the Supreme Court in Newbold v. Lamb (1819), 5 N.J.L. 449, held that, notwithstanding the statute, proof of the handwriting of a subscribing witness was not sufficient to send to the jury a bill having an ink-scroll for a seal and which did not, in the body of it, say that it was sealed. We interpret that opinion as requiring the combination of the device and the statement of sealing, not as holding the statement to be sufficient in itself. Likewise in Force v. Craig, 7 Id. 272, the Court of Errors and Appeals sustained a jury charge by Mr. Justice Ford in the following words:
"Here there is a scroll. The question is, was it put there by the defendant, by way of seal? The defendant demands evidence that the scroll was intended for a seal, but there needs no other proof than the instrument itself saying 'witness my hand and seal.' In this state of ...