234 Mass. 584 | Mass. | 1920
This is an action of contract brought against the appellants on the following promissory note:
“Boston Jan. 9th 1913
$2,500
Six months after date we promise to pay to the order of Forest N. Adams twenty five hundred dollars payable at any bank in Boston or office of Adams.
Value received National Realty Co.
by
Simon Swig
Edward L. McManus
Robert Luce
Louis Goldstein
^Trustees 99
The defendants’ answer was a general denial, a plea of payment, a want of consideration toi the defendants, and the affirmative allegation that the consideration, for the note in suit was for money loaned to the National Realty Company, a voluntary association existing under the provisions of a declaration of trust, to which instrument the plaintiff was a party, the declaration of trust in
The defendants further - alleged that the defendants borrowed the amount represented by the note declared on from the realty company and signed the note in their capacity as trustees; also, that the declaration of trust contained a further provision in the words following: “and any person or corporation contracting with the said trustees as well as any beneficiary hereunder shall look to the funds and property of said National Realty Co. for the payments under such contract, or for the payment of any debt, mortgage, judgment or decree, or for any money that may otherwise become due of payable, whether by reason of failure of the said trustees'to perform the contract, or for any other reason and neither the said trustees nor the said certificate holders shall be liable personally therefor;” and further, that the defendants borrowed the money of the plaintiff and gave him the note in suit, acting in their capacity as trustees of the National Realty Company, and that the plaintiff had knowledge of these facts and of the provision of the declaration of trust to which he became a party on February 13, 1912.
At the trial in the Municipal Court the plaintiff testified that the note in suit was a renewal of a similar, note for $3,000; that at the time of the giving of the first note the trustees were about to purchase, and later did in fact purchase, of the Wildey Savings Bank certain real estate; that in consideration for the note he gave his check for $2,000 to the Wildey Savings Bank and a check to the National Realty Company for $1,000; that the defendants were acting for the National Realty Company, and that he knew it; that the defendants were trustees at the time that^ the note was made; that he was a subscriber to the National Realty Company, and that the money he loaned on the note was used for the purpose of buying this property.
The plaintiff thereupon rested, and the defendants then offered in evidence the agreement of trust of the National Realty Company. This agreement was dated February 13, 1912, was under seal, and was signed by the defendants and by the plaintiff. The trustees were given powers therein to acquire real estate for the company and to borrow money for temporary purposes, giving therefor
The trial court refused to rule (1) “That the signature ‘National Realty Co. by Simon Swig, Edward L. McManus, Robert Luce, Louis Goldstein, Trustees’ is the signature of the National Realty Company and is not the joint signature of the individual defendants;” (2) “If the court finds that the plaintiff had knowledge of the ‘Agreement and Declaration of Trust’ of February 13, 1912, and was in fact a party thereto and a signer thereof, — then he is bound by its provisions and the note upon which this suit is brought must be construed as binding none of the defendants personally;” (3) “The plaintiff is barred by the agreement of trust from asserting the personal liability of the defendants upon this note and in the absence of evidence that there are in their hands funds of the National Realty Company he cannot recover; ” and (4) “The defendants cannot be held personally responsible in these proceedings against them ‘as they are trustees of the National Realty Company;”’ and “found for the plaintiff,” and reported the case to the Appellate Division of the Municipal Court of the City of Boston. In the appellate court the final order was entered “Report dismissed,” and the defendants appealed to this court.
R. L. c. 73, § 37, reads: “Where the’ instrument contains, or a person adds to his signature, words indicating that he signs for or on behalf of a principal, or in a representative capacity, he is not liable on the instrument if he was duly authorized; but the mere addition of words describing him as an agent, or as filling a representative character, without disclosing his principal, does not exempt him from personal liability.” Jefts v. York, 10 Cush. 392. In the case at bar, on its face the note purports to bear the signature of the National Realty Company by the defendants as trustees. Perforce of the statute it follows that the defendants are not individually liable thereon if the National Realty Company existed and the defendants had authority to act for that company.
The agreement of trust under seal and executed by the defendants, the plaintiff, and other subscribers, created' a voluntary association with the collective title National Realty Company. Melledge v. Boston Iron Co. 5 Cush. 158, 173, 176. Rand v. Farquhar, 226 Mass. 91, 97. The associate name was signed to the note in suit by the trustees, who are the defendants, under the provision of the trust agreement empowering the trustees to issue notes or bonds, to secure the payment of the same “by mortgage of the whole or of any part of the trust property,” and “to borrow money for temporary purposes giving therefor notes, signed by them in their capacity as Trustees.”
It follows that the note was signed in the name of a disclosed, existent principal, by the defendants as trustees, acting by virtue of an express authority conferred upon them by the associate members of the company, among whom was the plaintiff.
Independently of R. L. c. 73, § 37, it would seem that the excluded evidence was admissible in support of the answer considered as an equitable defence. St. 1913, c. 307.
Order dismissing report reversed.