1 Gratt. 234 | Va. | 1844
The record in this case presents for our decision, but a single question; and that lies within the narrow limits of a short letter of attorney constituting an agent with authority to sign the names of his principals, as endorsers on certain bills and notes to be thereafter drawn by a third person.
A wide range has been taken by the learned counsel on both sides, in the discussion of this question, leaving nothing unsaid which can be said on either side.
I do not deem it necessary to follow them step by step; nor to go into a minute analysis of the cases cited to enforce, or illustrate those rules of construction which are to serve as our guides. I will content myself with stating the principles deducible from such of them as apply to the question before us.
It is insisted by the counsel for the defendant in error, that all delegations of power must be strictly construed.
The object of construction in all cases, is to ascertain the intention of the parties, or more properly speaking, the meaning of the instrument: for we are bound to say that the parties intend, what the written instrument declares. It not unfrequenlly happens, that we have to settle the construction of a contract in regard to questions, which never occurred to the parties to it. And were we permitted to indulge in conjecture and probabilities, nothing is more probable than that the difference between one joint endorsement and several
“ Whenever the interest of the covenantees is joint, although the covenant is in terms joint and several, the action follows the nature of the interest, and must be brought in the names of all the covenantees. But where the interest of the covenantees is several, they may maintain separate actions, although the language of the covenant be joint.”
Keeping these principles in view, let us proceed to the case presented by the record.
[ The judge stated the facts and then proceeded.]
The legal effect of several successive endorsements is, that each endorser has a right to look for indemnity to all the endorsers who precede him, whether they endorse for accommodation of the drawer or for value received : unless there be an agreement aliunde, different from that evidenced by the endorsements. 5 Munf. 252; 4 Rand. 553. By a joint endorsement for accommodation of the drawer, all the endorsers are cosureties, bound to contribution: and if such an endorsement had been made in this case, Beirne would have a right, by virtue thereof, to call on the others to share the burden: unless there was an agreement, proved by evidence aliunde, that he should bear the whole, or more than an aliquot part. It cannot be questioned that it was com
Supposing the parties to stand in the relation of co-sureties, as between themselves, there are several other considerations which would render a joint endorsement preferable to several successive endorsements. Upon a joint endorsement, it would be necessary for the bank to give notice to all the endorsers; a duty imposing a light burden upon the bank; requiring nothing more than common prudence would dictate for its own safety ; nothing more than a knowledge of the residence of those, on whose responsibility the draft was discounted; (a knowledge without which their responsibility would be unavailing;) and the labour of writing, and putting into the post office, a letter to each of them; (labour commonly performed by the notary;) whereas prompt notice of the dishonour of the draft might be of vital importance to the endorsers. All would be, instantly, set at work, for the benefit of each. So much importance
Upon a joint endorsement, all must be sued; and although under our statute, judgment might be given against one only, or if against all, the goods of one might be taken in execution, yet each would stand an equal chance of escape. Upon several endorsements one might be selected as the first victim; as has been done in this case. A judgment against all would bind the lands of all; and if one paid the debt, he would be entitled to the benefit of the lien. In a suit for contribution, a joint endorsement would be evidence for the plaintiff; several endorsements would be evidence against him. Upon several endorsements, the one who is sued would have to litigate questions with the bank ; and being unsuccessful, would have to change sides, and litigate them over again with the others; and might be unsuccessful in both instances. In this very case, had the judgment below been against the defendant, and affirmed by an equal division of this court, although conclusive upon Beirne, the whole question would be open in a suit brought by him against another endorser.
In examining the question, whether the attorney in this case, was authorized to present the endorsers, to the bank, and to the world, as liable to each other, in the order in which their names appear upon the draft, it is important to ascertain their true relation. If it appears by the power of attorney, that they are responsible to each other, in the order in which their names are endorsed, it would be conclusive to shew the authority of the agent so to place them on the draft. General words which standing alone, would import a power to make a joint endorsement only, would be construed distributively in such a case. If, on the contrary, it appears by the power of attorney, that the parties to it intended to take a common risk, and share the burden equally, it will go far to shew that they did not intend to be held out to the world, in a different character. If Andrew Beirne did not intend to embark his fortune in the same bottom with John B. Sieenbergen, and sink or swim with him, it will go far to shew that he did not intend to peril his credit, by holding himself out to the bank, and to the world, as having encountered that hazard. If he did not intend to interpose himself as a shield for the protection of the other endorsers, it will go far to shew that he did not intend to authorize his, and their agent, to make a contract for him, which would prima fade subject him to that liability; and lay him under the necessity of extricating himself from it, by producing other evidence, which if the authority had been by parol, he might find it impossible to do.
In order to constitute an agreement, it is not necessary that the parties should use words of contract, as “ we covenant,” i£ we promise,” ££ we agree.” It is sufficient if what they have done amounts in law to an agreement. It is not necessary, therefore, that we should find in this power of attorney, an agreement in so many words, that they would share equally any loss which the proposed endorsement of iSteenbergen’s paper might occasion. It is enough if it appears that the transaction to which they are parties, imposed that obligation.
When two or more persons are sureties for another, the law implies a promise from each to the other, to contribute equally towards any loss which may be occasioned thereby. If they become sureties by successive endorsements on mercantile paper, as that is a form of contract which in general binds the first to indemnify the second, the law presumes that they mean to stand as they have placed themselves. But if there was a previous communication between them, which resulted in an agreement to become endorsers for the accommodation of the drawer, the latter presumption is removed, and the original one restored. ££ Mutual liability arises from mutual agreement to become bound for accommodation, unexplained, or uncontradicted by other circumstances.” Love v. Wall, 1 Hawks’s R. 318. Upon turning to the power of attorney in this case, we find that it gives a history of the connection of the parties, and all that they have done touching this matter, from the first application of Steenbergen to them to become his endorsers, to the final act of signing, sealing, and
There was not only the communication, which in the case cited from Hawks, was held sufficient evidence to be left to a jury, from which to infer a mutual agreement to become sureties, but the whole instrument speaks a language too plain to be misunderstood. They all speak together, and say 11 John B. Steenbergen hath applied to us Samuel Coffman,” &c. &c. “ to endorse” his paper; and “all have consented thereto.” The application was not made to one to endorse, and to the others to guarantee the paper thus drawn and endorsed, but uno Jlatu to all to “endorse.” The answer was not, if one would agree to indemnify the rest they would endorse after him, much less did they marshal the whole line, but all with one united voice “consented.” They all embarked at the same instant, in the same enterprise, not in single file, but shoulder to shoulder. I consider it clear, therefore, that as between themselves, they intended perfect equality.
Having thus agreed to unite their fortunes in support of their friend, and the time and place, when and where resolves were to become action, making it inconvenient to act in person, they select an agent to act for them. To do what for them ? That thing which they had determined upon? Qr another and a different thing ? Having agreed to unite themselves, and share equally, a common danger, did they authorize their agent to sever them, and place one in front, and another in the rear ? This they might unquestionably do. The question is, have they done it ? Let the power of attorney answer. After reciting the request of Steenbergen, and their answer, it proceeds thus, “ Now therefore know ye that all whose names are herein before written, have made, ordained, constituted, and appointed, and by these presents do make” &c. &c. There is nothing here which
But he is to sign their names as endorsers on all notes, bills, and drafts, drawn by Steenbergen, and it is sup
It is not necessary to say any thing in the case of the Farmers Bank v. Beirne. What is said in the other case, applies a fortiori to that. Both judgments must be affirmed.
The other judges concurred.