| Mass. | Mar 15, 1870
Although the question presented by this case is novel in one of its aspects, the law of this Commonwealth, as established by previous decisions of this court, will go far to assist us in. determining it.
It is well settled that any person taking a negotiable promissory note contracts with those only whose names are signed to it as parties, and cannot therefore maintain an action upon the note against any other person. Bank of British North America v. Hooper, 5 Gray, 567. Williams v. Robbins, 16 Gray, 77. Brown v. Parker, 7 Allen, 337. Tucker Manufacturing Co. v. Fairbanks, 98 Mass. 101" court="Mass." date_filed="1867-11-15" href="https://app.midpage.ai/document/tucker-manufacturing-co-v-fairbanks-6415161?utm_source=webapp" opinion_id="6415161">98 Mass. 101,104, and other cases there cited. That rule of course does not preclude charging a party who, instead of the name by which he is usually known, signs, with intent to bind himself thereby, his initials, or a mark, or any name under which he is proved to have held himself out to the world and carried on business. Merchants’ Bank v. Spicer, 6 Wend, 443. George v. Surrey, Mood. & Malk. 516. Williamson v. Johnson, 2 D. & R. 281; S. C. 1 B. & C. 146. Fuller v. Hooper 3 Gray, 334.
But if a person signs the name of another, as maker of a promissory note, who has not authorized him to do so, and who therefore is not bound by the signature, the signer is not personally liable in an action of contract upon the note itself, even if he signs his own name also as that of the agent affixing the other signature, and the party whose name he assumes to put to the note is incapable of making such a contract; but only in an action of tort for falsely representing himself to be authorized to sign the name of the other person. This rule has been asserted and steadfastly maintained by this court for half a century. In Long v. Colburn, 11 Mass. 97" court="Mass." date_filed="1814-03-15" href="https://app.midpage.ai/document/long-v-colburn-6404147?utm_source=webapp" opinion_id="6404147">11 Mass. 97, it was held that upon a promissory note beginning “ For value received, I promise to pay,” and
In the present case, the plaintiff counts upon the notes them selves, seeking to charge the defendant as the maker of them, upon the alternative ground that the name signed by him to each of the notes was either the name of a person whose name he had no authority to sign or use, or the name of a fictitious person.
If either of those names was that of a real person, then, although no agency was expressed on the face of the note, and whether the signature was affixed under a mistaken belief of authority, or fraudulently, or even if it was a forgery, it was, so far as regards the liability to a civil action upon the notes, a mere case of signing without authority, and the signature might be adopted or ratified by that person, and such adoption or ratification would render him liable to be sued as maker thereof. Ballou v. Talbot, 16 Mass. 461" court="Mass." date_filed="1820-10-15" href="https://app.midpage.ai/document/ballou-v-talbot-6404926?utm_source=webapp" opinion_id="6404926">16 Mass. 461, 463. Merrifiela v. Parritt, 11 Cush. 590, 597. Brigham v. Peters, 1 Gray, 139. McIntyre v. Park, 11 Gray, 102. Greenfield Bank v Crafts, 4 Allen, 447.
The same rule must apply if the names signed to any of the notes were those of fictitious persons. In either alternative, the notes were not signed in the defendant’s own name, nor by any name under which he was shown to have transacted, or held himself out as transacting, other business. The defendant has not, by word or act, asserted that they were his own promissory notes. The plaintiff did not take them immediately from him, or on his credit. The defendant therefore is not estopped to deny them to be his. The defendant’s representation was, that they were signed by parties bearing, or doing business under, the names signed. He made no contract, and intended to make no contract, and was not understood by any other party to make any contract, himself. His relation to the plaintiff was not one of contract, but of tort. The case is not distinguishable in principle from that of Jefts v. York, 10 Cush. 392, already stated. There is no essential difference in this respect between a note purporting to be made by a person or corporation that has no capacity to make it, and a note purporting to be made by one that in fact has no existence; or between a note on which the name of the person by whose hand it is written appears, and a note on which it does not; and no more reason for holding him liable to an action upon it as his own contract in the one case than in the other.
The cases cited by the learned counsel for the plaintiff, when closely examined and weighed, afford no sufficient ground for a different conclusion.
The strongest case in his favor is that of Grafton Bank v. Flanders, 4 N. H. 239. It was there held that a person who signed the name of another to a promissory note as maker without any authority from him, and delivered it to the payee for a valuable consideration, was himself liable upon the note as maker in an action by the payee, charging him as having made f in the name of the other person. It is to be observed that in
In Palmer v. Stephens, 1 Denio, 471" court="None" date_filed="1845-10-15" href="https://app.midpage.ai/document/palmer-v-stephens-6142283?utm_source=webapp" opinion_id="6142283">1 Denio, 471, the defendant had signed the promissory note sued on with his own initials; the court expressly waived the consideration of the question whether, if neither his name nor the initial letters thereof had appeared on the paper, he could have been holden as a party to it; and the general statement in the opinion, that, “if one, assuming to be agent of another person, executes a note in his name, having in truth no authority for the purpose, the assumed agent is himself bound by the signature,” though supported by the earlier cases in New York, is inconsistent with the later cases in that state, as it is with our own decisions. Walker v. Bank of New York, 5 Selden, 582. White v. Madison, 26 N.Y. 117" court="NY" date_filed="1862-12-05" href="https://app.midpage.ai/document/white-v--madison-3622166?utm_source=webapp" opinion_id="3622166">26 N. Y. 117.
In Brown v. Butchers’ & Drovers’ Bank, 6 Hill, 443, the signature which was held to bind the defendant as indorser of a bill of exchange was not of another name than his own, but of figures; and the report states that evidence was given strongly tending to show, not only that they were in his handwriting, but that he meant they should bind him as indorser.
The case of Melledge v. Boston Iron Co. 5 Cush. 158, went, no farther than to hold that a corporation was liable on a note given by its general agents, a mercantile firm,.in their own name, for a debt of the corporation, if the note was in fact the note of the corporation, executed under a name which it had adopted and sanctioned as indicative of its contracts, or if the payee took the note under a misapprehension, caused by the acts of the corporation and its agents, as to the identity of the corporation with the firm whose name was signed to the notes*,
The remark of Mr. Justice Hoar, in Draper v. Massachusetts Steam Heating Co. 5 Allen, 338, that “ there may be cases in which the signature is in such a form that it might be held to be either the signature of the principal or of the agent, and in such case a want of authority to bind the principal might well be regarded as fixing the personal liability of the agent,” related to cases in which the names of both agent and principal appeared upon the face of the contract, and in a form making it doubtful which was intended to be bound.
The plaintiff much relied on the English cases in which an acceptor of a bill of exchange, in which a fictitious person was named as payee, has been held to stand as if it had been payable to bearer, and to be liable for the amount of the bill to one who has discounted it on the faith of his acceptance, even when the signature of the drawer for whose honor he accepted it was forged. Gibson v. Minet, 1 H. Bl. 569; S. C. 2 Bro. P. C. 48; 3 T. R. 481. Phillips v. Im Thurn, Law Rep. 1 C. P. 463; S. C. 18 C. B. (N. S.) 694. But those cases go upon the ground that the defendant’s own acceptance bound him, so that he could not, even if he acted in good faith, dispute the genuineness of the prior signatures. They do not hold him liable upon those signatures as his own, but upon his own signature as acceptor.
The plaintiff also cited Lobdell v. Baker, 3 Met. 469, in which it was held that if the holder of a promissory note, indorsed in blank by the payee, caused it to be indorsed by a minor, and then sold it, without erasing this indorsement or otherwise making it appear on the note to be without binding force, he was liable to all subsequent holders upon his implied representation that the indorsement constituted a valid contract. But the action in that case was in tort for the false representation. See S.C. 1 Met. 193.
If the facts which the plaintiff offered to prove were true, be would seem to have been defrauded by the act of the defendant. But he must seek his remedy for such fraud in an appropriate form of action. He cannot compel the defendant to try the question of false representation in an action of contract upon the notes.
We regret that after much consideration our judgment is not unanimous. It is the opinion of a majority of the court, that, for the reasons above stated, this action cannot be maintained upon either alternative of the facts which the plaintiff, offered to prove. The result is, that, according to the terms of the report upon which the case was reserved, there must be
Judgment for the defendant.