60 N.Y.S. 981 | N.Y. App. Div. | 1899
Lead Opinion
In Mechem on Agency (§ 558) it is said: “ It is undoubtedly competent for an agent, although fully authorized to bind his principal, to pledge instead his own personal responsibility if he so prefers. The presumption is that the agent intends to hind his principal, but where he expressly charges himself personally, he will he so held.”
In Story on Agency (9th ed., § 261) it is said: “ When a man is known to he acting and contracting merely as the agent of another who is also known as the principal, his acts and contracts, if he possesses full authority for the purpose, will be deemed the acts and contracts of the principal only and will involve no personal responsibility on the part of the agent.”
In 1 American and English Encyclopaedia of Law (2d ed. 1120} the rule is stated : “ The presumption is that an agent always intends-to bind his principal and not himself.” In Johnson v. Smith (21 Conn. 627) it is held : “ Though a person duly authorized as agent, and acting as such may bind himself personally, yet this must be done by language clearly expressive of such an intent.” In Hall v. Lauderdale (46 N. Y. 74) in the opinion of Andrews, J-., it is said : “ When the agency is disclosed and the contract relates to the matter of the agency and is within the authority conferred, the agent will not be personally bound unless upon clear and explicit evidence of an intention to substitute or to superadd his personal liability for or to that of the principal. In case of written agreements executed by an agent, the agent is, in general, personally bound, if the instrument can have no legal operation against the principal.” (See, also, Bank of Genesee v. Patchin Bank, 19 N. Y. 320.) In McDonough v. Templeman (1 H. & J. [Mid.] 156) one Burrows- and Templeman made an agreement in the beginning of which it-was recited that Templeman was acting in behalf, of the George Town Bridge Company and the agreement further read:
“ And the said John Templeman doth agree to pay for each of the said slaves * * * $60* * *. The said sum of $420 to. be paid by the said Jolvn Templemcm unto the said Maurice Jaynes M' Donougk or his order on the said 25th of December next * * *, In witness whereof, the said parties have hereunto set their hands and affixed their seals, the day and year first above written.
“(Signed) EDWD BURROWS,- [l. s.]
“JOHN TEMPLEMAN. [l. s.j ”
The action was brought to enforce a personal liability of Temple-man upon the contract. The Court of Appeals, reversing the judg
In Field’s Civil Code, section 1256 reads: An agent is responsible to a third person for his acts in the course of his agency in the following cases only : First, when with his consent credit is given to him personally in a transaction ; second, when his principal is not responsible for his acts and he has no right to suppose that his principal is thus responsible ; third, when his acts are wrongful in their nature. While this Civil Code never became part of the statute law of the State, it was intended almost entirely to be a mere codification of the common law, and as such is most valuable as a commentary by its learned author.
The plaintiff’s cashier, to whom the letter was written from which liability is here claimed, swore that he knew that the defendant was acting as broker for various concerns, and that he was handling the paper of Dolge & Son as broker. His testimony that he did not know that the defendant was agent of the firm is a mere quibble.. A broker is nothing more nor less than an agent. (Sibbald v. Bethlehem Iron Co., 83 N. Y. 381.) Moreover, the letter itself by fair import discloses the agency, discloses the principal for whom defendant was acting, and, as if to make it the more clear, states the extent of the discount which defendant was negotiating for his principal. The apparent purpose of this statement is to induce a discount by showing a good customer. After making that statement the defendant proceeds to make the statement upon which his individual liability is claimed to be based, to wit: “ And by chance should any paper you take pass due date, please advise me at once and I will have draft in your hands in three days time for payment.” From this letter then' disclosing his agency and his principal, written confessedly in the prosecution of the agency to one who knew of the agency and who before had negotiated with him as such agent, this single clause is picked out to fasten upon him a personal liability. The balance of the letter was written , in behalf of his-principal. Had he desired to change at this point the character in which he was writing, he would have used words clearly indicating the change and indicating that he was then offering his personal responsibility.
It is urged, however, that if this be deemed an undertaking of the principal, it is meaningless, because the defendant’s' principals are already liable upon the paper by reason of their indorsement thereon. The obvious, answer to this objection is that the purpose of the undertaking was not to add liability, but to assure the plaintiff that Dolge & Son -would' be prompt to care for any dishonored paper. If Dolge & Son were themselves asking for a line of discount upon their business paper they might naturally add the assurance that if any of the paper was not paid they would within three days’ time furnish the money with which to pay it. If such assurance would be a natural one upon a request from Dolge & Son, it is equally natural upon the request made by their agent.
Within the authorities then this contract, as any other contract, must be construed in the light of the surrounding circumstances. Its construction becomes one, as it is called, of- mixed law and fact. Upon all the circumstances, the court or jury must determine what was the intention of the defendant in writing the letter, and whether the plaintiff relied upon any supposed personal liability assumed. Both offthese elements must be found in order to show a meeting of the minds of the parties which is the essence of a valid contract.
As the conclusion of the trial justice is at variance with the conclusion here reached, the motion for a new trial must prevail.
Adams and Spring, JJ., concurred.; McLennan, J., dissented; Hardin, P. J., not voting.
Dissenting Opinion
I cannot assent to the conclusion reached in this case.
By the letter of December 18, 1897, in which was inclosed the notes in question, all of which were indorsed by Alfred Dolge & Son, the defendant assumed, in form at least, to guarantee the 'payment of such paper. The words used are as follows: “ And .by chance should any paper you take pass due date please advise me at once, and I will have draft in your hands in three days time for
There is evidence tending to show that at the time the paper which is the subject of this litigation was delivered to the plaintiff, the plaintiff knew that the defendant was acting as. broker or agent for the firm of Alfred Dolge & Son, for the purpose of procuring its paper to be discounted, but such knowledge on the part of the plaintiff in no way affects or relieves the defendant from liability.
The ' authorities cited. (Mech. Agency, § 558; Story Agency, § 261, and the case of Whitney v. Wyman, 101 U. S. 396), and many others, hold, as stated, that when a man is known to be • acting and contracting merely as an agent of another who is also known as the principal, his acts and contracts will be deemed the acts and contracts of the principal only if such agent had authority to act; but such rule is not applicable to the facts in the case at bar. If so, the guaranty contained in the letter of December IS, 1897, is meaningless, and has no force or effect whatsoever. Alfred Dolge & Son were absolutely liable upon the paper in question, by reason of their indorsement, and no guaranty by the defendant could add to or increase their liability. It was perfect and complete by reason of the indorsement, and independent of anything contained in the letter; so that, if the words quoted from the letter were sufficient to constitute a guaranty, and it seems to be assumed that they were, they could not have been lised for the purpose -of constituting a guaranty on the part of -Alfred Dolge & Son, because, as before stated, they had already guaranteed by their indorsement. The words employed by the defendant clearly were used for the purpose of giving additional security to the purchaser of the paper. Defendant says, “Should any paper you take pass due date * * * I will have draft in your hands in three days time for payment.” That did not add to the obligation of Alfred Dolge & Son. They had undertaken, in as binding form as possible, to have the amounts of the notes held by the plaintiff at the place where they were made payable respectively, on the very day that such notes, became due, and if they failed in that regard an action could be commenced and
When the notes in question were delivered to the plaintiff they were guaranteed by Alfred Dolge & Son. Can it be said that the -agreement contained in the letter of December 18, 1897, only con.stituted a reguaranty by Alfred Dolge & Son ? One guaranty by Alfred Dolge & Son was as good as two. We think such was not 4he meaning of the language, nor the intention of the defendant when he wrote the letter in question.
In the case of Hall v. Lauderdale (46 N. Y. 74) the court says : “ In case of written agreements executed by an agent, the agent is, in general, personally bound, if the instrument can have no legal operation against the principal.”
The agreement made by the agent, the defendant in this case, ■could by no possibility have any legal .operation against the prin■cipal. If the defendant’s contention is correct it was surplusage^ meaningless, and in no way affected, increased or decreased the liaTbility or obligation of Alfred Dolge & Son.
If the agreement on the part of the defendant had been, “ If the notes which I send to you are not paid when due I will procure •other paper of equal amount to be substituted in their place,” under the cases cited it would undoubtedly be held that the obligation to -.substitute additional paper was the obligation of the principal; that is entirely different from holding that an agent, when he uses words ■ clearly sufficient to constitute a personal guaranty of payment, will "be presumed to have guaranteed payment on behalf of his principal •when such principal has already made such guaranty.
I think the decision of the learned trial justice was correct; that the exceptions should be overruled and the motion for a new trial •denied, with costs. ,
Defendant’s exceptions sustained and motion for a new trial granted, with costs to the defendant to abide the event.