Charles Douglas and Jesse Farnum versus John B. Oldham

Assumpsit, and not covenant, was held to lie in this state on a written contract, not under seal, but having, against the names of these who signed it, what is called a scroll, which, in the place where the contract was made, was considered as a seal.

Covenant beoken, upon an instrument, in the following words. “ This agreement, made this 15th day of December, 1818, by and between Charles Douglas, and Charles Douglas, attorney for Jesse Farnum, of the first part; and John B. Oldham, of the second part, witness-eth, that the said party, of the first part, hath, this day, agreed to sell unto the said party of the second part,— the following described tract of land situated in Franklin, No. 3, and in Connecticut Western reserve in the state of Ohio, &c. And the said party of the second part doth agree-to pay for the land aforesaid at the price of $4,50 per acre, &c.

In witness whereof wc the parties have hereunto inter changeably set our hands and seals the day and year above written.”

John B. Oldham, and scroll.

Charles Douglas, “ scroll. attorney for Jesse Farnum, “ scroll,

Charles Douglas,

The cause was submitted to the decision of the court on the following case.

The instrument, on which the action is founded, is not under seal, but there is, against the names, what, in Ohio, is called a scroll. It was executed in the state of Ohio, and by the statute of Ohio a scroll has the same force of a seal. At the time this instrument was executed the plaintiffs, were inhabitants of Massachusetts, and Oldham, of New Hampshire. contended that if the instrument could be considered as a deed, it was not the deed of Jesse Farnum. A deed executed by an attorney, to be valid, must be executed in the name of the principal. 16 Mass. Rep. 42; 4 N. H, Rep. 102; 5 ditto, 461.

Handerson, for the defendant,

But the instrument is not a deed, and covenant does not lie. % Mass. Rep. 84, Pearsall v. Dwight; 1 if. R], 135, Folliott v. Ogden; 5 Johns. 239, Warren v. Lynch,; 1 Bos. & Puller, 360; 2 Pick. 11; 4 Co wen, 508, Andrews v. Herriott.

Alexander and J. Parker, argued for plaintiffs at the last term.

1. This instrument purports to be the deed or contract of Farnum, both in the commencement and execution of it. “ Charles Douglas attorney for Jesse Far-num” is equivalent to Jesse Farnum by Charles Douglas attorney. There can be no particular virtue in one name preceding or following the other. It is indifferent whether an attorney sign a deed B. W. for R. C. or R. C. by R. W. his attorney. 2 Starkie’s Evid. 477, note 1, cites Jones' Devisees v. Carter, Ex; Hen. & Mun. 184. — See also 2 East, 142, Wilks v. Back; 11 Mass. Rep. 97, Longv, Coburn.

in the case relied on for defendant, the attorney set his own name only to the instrument.

Here it is not denied that the attorney was duly authorized — he professed to act for and in the name of his principal — the defendant contracted with the principal — and the principal has, moreover, adopted the act of his attorney by bringing the suit.

2. If a scroll is not a sufficient seal on a contract executed in this state, it is sufficient in this case, the contract having been executed in Ohio, where, by statute, a scroll is equivalent to wax or wafer. 2 Caine’s Rep. 362, Meredith v. Hinsdale; 1 Bos. & Pul. 360, Mams v. Kers; 1 Phil. Ev. 416. The nature and effect of the contract are to be governed by the lex loci contractus. 2 N. II. Rep. 45, Hough-ton v. Page; extract from Huber, sec 3 Dali. Rep. 371, note. It is subject to such law “ for its construction and its legal qualities and character.” By Parker, C. J. 13 Mass Rep. 156, Hull v. Blake; see also Bayley on Bills, 28, (Phillip’s & Sewell’s Edition.)

There is nothing here to bring the case within-any e-f the exceptions to the general rule.

Warren v. Lynch 5 Johns. Rep. 237, was decided upon the ground that, by the terms of the contract, it was to be performed in New York though executed in Virginia, and does not conflict, therefore, with Meredith v. Hinsdale.

But there is nothing in the terms of the contract here, to show that it was intended to be performed in any other state than that in which it was made— 8 Johns. Rep. (2 Ed.) 146, Thompson v. Kelcham; 2 Mass. Rep. 89, Pearsall v. Dwight el a.; 1 Co wen, 103, Sherrill v. Hopkins. On the contrary it shows that performance in Ohio was contemplated; for it relates to the conveyance of land in that State, and the payment of taxes on it.

Nor is'this a “ dispute concerning the mere form of the pleadings.”

The enquiry is, first, whether this instrument is in its nature, effect, character and construction n specialty, and valid ns such, or whether it is n contract by parol. This is to be settled by the lex Iccl, and, being settled, all questions as to the appropriate remedy — the proper form of action upon a specialty — the mode of proceeding'to judgment and execution — “ the means and manner of enforcing” the contract, are to be determined by the lex fon.

To test the correctness of this position — Interest is payable according to the laws of the country where the contract is made, unless, by its terms or nature, it is to be performed elsewhere. 4 Johns. Rep. 1S3, Fodenir. Sharp; 17 Johns. 511, Fanning v. Consequa[; 12 Mass. Rep. 4, Wintkrop v. Carleton. So discharges of contracts, by operation of law, are governed by the “ law of the place,” as discharges under insolvent laws, existing at the time the contract was entered into. 13 Mass. Rep. 1, Blanchard v. Russell; 16 Johns. Rep. 233, Mather v. Bush. So of defences which show the contract void, as usury. 2 N. H. Rep. 42, Houghton v. Page.

Suppose, then, the laws of Ohio, existing at the time this contract was executed, made a distinction between specialties and simple contracts; and gave, on a simple contract, a lower rate of interest than “on a specialty; or provided for an insolvent discharge upon the first and not the other, and such discharge was attempted to be set up; or made the first void for usury and not the other. The court must first determine whether the contract was a specialty, in order to determine the rate of interest, or try the applicability of the discharge, or setttle whether the defence of usury could avail — audit would be preposterous to say that this should be held to be a simple contract by the lex fori, and then held void for usury, or discharged by an insolvent certificate or a less rate of interest allowed on it by the application of the lex loci-

We have no doubt, that the nature, validity, construction, and effect, of the contract are to be settled by the laws of Ohio. But the question now to be decided is, does covenant lie oil this instrument ? This question must be settled, not by the law of Ohio, but by our own law, and we think it very clear that, however it may be in Ohio, this paper cannot be considered here as a deed. There is nothing upon it which we can consider as a seal. Assumpsit, then, and not covenant, is the proper action, and there must be

Parker, J. having been of Counsel did not sit.