This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
The Common Law effect of the seal as dispensing with the necessity of consideration has been greatly modified by statute in many states. In some states the affixing of a seal has no practical effect unless the instrument is one required by law to be under seal.1 A seal may be ignored as surplusage if the instrument to which it is affixed is not necessarily under seal, and the addition of the seal would vitiate the instrument, as where the seal is affixed by an agent whose authority is created by parol.2 So a contract under seal, made by an unauthorized agent, and not being necessarily under seal, may be ratified by parol, the seal being ignored.3 These statutes may he grouped under two general classes. (1) Some statutes provide that even though an instrument is under seal, want of consideration may he inquired into.4 The same result seems to have been reached in some states without the aid of statute.5
9Mitchel v. Reynolds. 1 P. Wms. 181; Palmer v. Stebbins, 3 Pick. (Mass.) 188; 15 Am. Dec. 204; Keeler v. Taylor, 53 Pa. St. 467; 91 Am. Dec. 221.
1 Hervey v. Audland, 14 Sim. 531; Hale v. Dressen, 73 Minn. 277; 76 X. W. 31; Lamprey v. Lamprey, 29 Minn. 151; 12 N. W. 514; Winter v. Ry., 160 Mo. 159; 61 S. W. 606.
2Crandall v. Willig, 166 Ill. 233; 46 N. E. 755; Buford v. McKee, 1 Dana (Ky.) 107; Bosley v. Bosley, 85 Mo. App. 424.
3 Winter v. Ry., 160 Mo. 159; 61 S. W. 606.
1 Edwards v. Dillon, 147 Ill. 14; 37 Am. St. Rep. 199; 35 N. E. 135; Barton v. Gray, 57 Mich. 622; 24 X. W. 638; Blewitt v. Boorum, 142 X. Y. 357; 40 Am. St. Rep. 600; 37 X. E. 119; McXeal, etc., Co. v. Walt-man, 114 X. C. 178; 19 S. E. 109.
2Hartnett v. Baker, - Del. -; 56 Atl. 672; Mcintosh v. Hodges, 110 Mich. 319, 322; 68 N. W. 158; 70 X. W. 550.
Some jurisdictions hold that the purpose of these statutes is merely to allow inquiry into failure of consideration where a valuable consideration was contemplated, but not to make invalid sealed instruments which were intended to be without consideration.6 Other jurisdictions treat such statutes as abolishing voluntary promises under seal, and reducing the seal to a mere prima facie evidence of consideration which may be rebutted.7 While consideration may be presumed from the use of the seal, this presumption does not arise where the language of the contract shows that it had no consideration.8 (2) In other jurisdictions the private seal has been abolished by statute.9 The effect of such statutes is to reduce all specialties to simple contracts. Even if a seal is affixed to a contract, it is, under such statutes, mere surplusage.10