17 W. Va. 135 | W. Va. | 1880
announced the opinion of the Court:
The first error assigned and relied upon by the appellant in its said petitiou is as follows:
“ First. The court erred in deciding that the draft, mentioned in said bill and filed and exhibited therewith, was made by said Compton for and on behalf of The West Virginia Oil and Land Oil Company, as its president and agent, having authority to bind said company by making said paper, &c.”
The counsel for the appellant in support of this assignment contend, that, “the paper sued upon was upon its face .the promise or obligation of R. S. Compton, and the word ‘Pres.’ annexed to his signature was only desoriptio personce; that parol contemporaneous evidence was inadmissible to vary or contradict its term'/; and if said evidence has been admitted and conside /d, its legal effect cannot be to contradict or vary the rms of the instrument. The instrument is not ambiguous in its terms.”
On the other hand it is contended by the counsel for the plaintiff below, that “ the addition of ‘ Pres.’ to the name of Compton constitutes a patent ambiguity on the face of the draft, leaving it doubtful whether he intended to execute it in his individual capacity, or as president and agent of the company; and parol proof may.be introduced to show what the intention was; and if it appear that he made it on behalf of the company, it will be bound, if he had authority to bind it by making negotiable or'other paper.”
The paper in question is sometimes called a draft and sometimes a bill of exchange in the pleadings and proceedings in the cause. I think it is perhaps proper to call it a bill of exchange.
In the 5th Amer. ed. of Byles on Bills taken from the 9th London ed. at pp. 115 and 116 it is said : “The rule of law as to simple contracts in writing, other than bills or notes, is, that parol evidence is admissible to charge unnamed principals; and so it is to give them the benefit of the contract; but it is inadmissible for the purpose of discharging the agent, who signs as if he were principal in his own name. (j). And the rule of law
In Story on Promissory Notes, § 68, it is said : “ The true and best mode of an agent's signing or endorsing a promissory note for his principal, where he means to make the latter, and not himself, personally responsible therein, is to sign or endorse the same ‘ A. B.’ (the principal) by his attorney or agent ‘ C. D.’ If the signature be ‘ C. D., for A. B.’ (the principal), it will be equally available, although not so formally correct. But, in the practice of common life, there are many deviations from this course ; and occasionally they give rise to great embarrassments in endeavoring to ascertain, whether, in the actual language used, the agent is personally bound, or the principal alone is bound, or both. Neither is it possible to extract from the authorities any consistent rules to guide us in this matter of interpretation. Where, indeed, upon the face of the instrument the agent signs his own name only, without referring to any principal, there he will be held personally bound, although he is known to be, or avowedly acts as, agent.” See same, §' 69, and Story on Agency, §§ 269, 278.
Story on Bills at § 76 says: “As to agents, if they draw, or endorse, or accept bills in their own names, although on account and for the benefit of their principals, they are held personally liable, because they alone can be treated on the face of the bills as parties. If they would bind their principals they should endorse or accept the bills in the name of their principals, and sign for them and in their names.”
In the 2d American ed. from the 5th London ed. of Bayley on Bills, pp. 72, 73, it is said: “ If a bill or note
In American Leading Cases by Hare & Wallace, 5th ed., pp. 763 and 764, it is said: “In Mechanics Bank v. Bank of Columbia, 5 Wheat. 326, and Bank of Utica v. Magher, 18 John. 314, 346, it was held, that when an instrument had on its face the appearance and form of a corporate transaction, but was signed by an officer of the
In Haskins v. Edwards & Turner, 1 Ia. 426, it was held: “If the name of the principal and the relation of agency be stated in the writing, and the agent is authorized, the principal alone is bound, unless the intention is clearly expressed to bind the agent personally. The question of liability does not turn upon the form of the signature, but upon the fact whether the relation of principal and agent is fairly disclosed upon the face of the paper.”
In Pentz v. Stanton, 10 Wend. 271, it was held: “ A person may draw, accept or endorse a bill by his agent, and it will be as obligatory upon him as though it was done in his own hand; but the agent in such case must either sign the name of the principal to the bill, or it must 'appear on the face of the bill itself in some way or another, that it was in fact done for him, or the principal wdllnot be bound; the particular form of the execution is not material, if it be substantially done in the name of the principal.” See opinion of the judge who delivered opinion of the court, at pp. 374, 375, 376. This case was an action at law.
In the case of Stackpole Jr., v. Arnold, 11 Mass. 26, it was held, that “whereone makes a written contract intending to act therein as the agent of another and to bind his principal, it is necessary, that it should appear in the contract itself, that he acts as such agent. Oral testimony is not admissible to contradict, vary or materially affect, by way of explanation, any written contract, whether within the statute of frauds or not: provided the contract is perfect in itself and is capable of a clear and intelligible exposition from the terms of which it is composed. But this rule does not prohibit the showing by parol evidence a want of consideration for a promissory
In the case of the Eastern Railroad Co. v. Levi Benedict et al., 5 Gray 561, it was held, that “on a written order, made for a consideration moving from the Eastern Railroad Company to deliver property to ‘ J. S., president of the Eastern Railroad Company/the company may sue in their own name.” In the case of Bank of British North America v. Hooper et al., 5 Gray 567, it was held, that “ a bill of exchange, drawn by an agent in his own name, does not bind his principal though made for his benefit and containing a direction to the drawee to charge the amount thereof to his account. A bank, which has discounted bills drawn in his own name by the agent of a disclosed principal, cannot sue the latter, nor prove against his estate in insolvency, although the proceeds are applied by the agent to his use.” See also case of Leadbitter v. Farrow, 2 M. & S. 345. In the case of De Witt and Terbert v. Walter, it was held, that “ where H. had authority as agent to bind the defendant under the name of'The Churchman/ the defendant was not liable upon a note given by such agent and signed ‘ D. H., agent for the Churchman/ but containing no further expression of intention to bind the defendant; that such note did not purport to be the note of ' The Churchman/ but of H.; and that the words ‘ Agent of the Churchman ’ were mere words of description.” See also McWilliams v. Wills, 1 Wash. (Va.) 199, 202.
In that case Judge Lyons in delivering the opinion of the court at page 202 says : “ It was as unimportant to name the appellant, treasurer, in the declaration, as it would have been'to give the appellee the title of colonel,
In the case of Early v. Wilkinson & Hunt, 9 Gratt. 68, the syllabus is:
“ 1. $913.50. ' Kanawha Co., October 3, 1850.
“ Four months after date, I promise to pay to Wilkinson & Hunt, without offset, negotiable and payable at the office of discount and deposit of the Bank of Virginia, at Charleston, Kanawha county, $913.50 for value received.
“ Robert H. Early,
“ (for Samuel H. Early).
“ Held: Upon the face of the paper it is the note of Robert H. Early.
“ 2. Parol evidence is admissible to prove that the note was^intended to be the note of Robert H. Early.
“ 3. Proof that another note was executed by Robert H. Early to another person, about a month previous to the execution of this, with the same addition excepting the brackets, and that the reason given by him for the addition of the words ‘for Samuel H. Early’ was ‘that in the case of the death of either his brother or himself the note would show on what account or for whose benefit it was given; ’ heldto.be competent evidence; the only question being why -were these words ‘for Samuel H. Earley/ written at the foot of the note ?
“ 4. But if the evidence was improper, yet as the court had properly instructed the jury, that upon the face of the paper it was the note of Robert H. Early, the admission of the evidence could not have been injurious to the defendant; and it is therefore no ground for a reversal of the judgment.”
In this case Judge Moncure at page 70 says: “An agent, executing a note for his principal, supposing him to have authority to execute such note, may bind either himself or his principal. Whether the one or the other
Again, Judge Moncure, at pp. 73, 74, 75, says: “There is certainly no better settled general rule of law than that parol evidence is inadmissible to contradict or vary the terms of a written contract. There is another general rule, which has been established and recognized by a long series of decisions, but which has been said to be not perfectly accurate as a definition, that parol evidence is admissible to explain a latent but not a patent ambiguity. There are cases which would seem rather to fall under the head of patent than of latent ambiguity, in which parol evidence has been held to be admissible. Judge Story, in the case of Peisch v. Dickson, 1 Mason 9, after referring to the rule in regard to patent and latent ambiguity, says : ‘ The difficulty lies not in the rule itself, but in applying it to particular cases, where the shades of distinction are very nice. There seems indeed to be an intermediate class of cases, partaking of the nature of the latent and patent ambiguities; and that
Again Judge Moncure at pages .76 and 77 says: “There is perhaps no question of greater difficulty in the administration, of justice, than that which often arises in regard to the relevancy of evidence to the issue. It is the duty of the court, says Phillips, ‘to confine the evidence to the points in issue, that the attention of juries may not be distracted, nor the public time needlessly consumed; but in deciding, that the evidence of any particular circumstance is not receivable upon this ground, the court must impliedly determine, that no presumption to be drawn from that circumstance ought properly to have an effect upon the mind of the jury.’ It is obvious therefore that a great deal must necessarily be left to the discretion of the court of trial.”
Again the judge says, at pp. 77 and 78: “We do not mean to deny the correctness of the cases cited from East and Peake by the counsel of the appellant, (7 East. 108; 5 Day’s Esp. Peake Ca. 95,) nor to contend that proof of one contract may be" proof, by inference, of another. We mean only to say, in the language of Phillips, (ed. of 1849, vol. 4 p. 461,) that it ‘may frequently be very proper, and in some cases absolutely necessary, to look beyond the transaction, which is the immediate subject of enquiry, into previous transactions, for the purpose of making a just inference as to the knowledge of the parties, their motives or intentionand to say, that this case or the supposition above made may come within that principle.”
1. “B., the president of a railroad company, signs his name without any addition to a due bill, acknowledging011 that there is due to S. S., $484.00, in full of labor performed on cottage-lot of the railroad company. It being uncertain on the face of the note, whether the labor was performed for B. or the company, parol evidence is admissible to ascertain that fact.” The note in this case was as follows:
“Bichmond, May 31,1856. $484.00. Due Judge H. Snead and Benjamin E, Smith, four hundred and eighty-four dollars, in full of labor performed on cottage-lot of the railroad company, the same payable on demand, with interest from date. Ed. Bobinson.”
In the case of Walker v. Christian, 21 Gratt. 291, it is stated in the syllabus: “1. Bought of Maj. J. W. twenty-seven head of cattle, weighing thirty-eight thousand one hundred and fifty-two pounds, at six and a half cents, $2,479.88. Mr. W. M. T., you will please settle with Maj. W. the above account. J. C.” In assumpsit by W. against C. to recover the amount, the paper being of doubtful meaning, C. may introduce parol evidence to show, that T. was chief commissary for the district in the Confederate States service, and that C. was his agent, and as such bought the cattle of W., who knew he was buying as such agent. 2. The principles on which the liability of agent, both private and public, will be ascertained and fixed, considered by Moncure, J.”
In this case Moncure, Judge, at page 295, says: “Where a promissory note is made, or a bill of exchange drawn in the name of the agent, without showing the name of the principal on the face of the instrument, as a general rule the agent only, and not the principal, is liable. The intention of the parties in such a case is too plainly expressed to admit of any doubt, or to require any aid from the light of surrounding circumstances.”
In the case of Scott v. Baker, 3 W. Va. 285, it was
‘ $342.25. December 19, 1866.
‘ Sixty days after date, we promise to pay to the order of J. W. Baker, three hundred and forty-two 25-100 dollars, at Second National Bank of Parkersburg; value received.
‘ William Scott,
‘ President Blannerhasset Oil Go.
‘ W. H. Homer,
f Treasurer”
By an examination of this case it will be seen, that, there was no parol evidence offered in the case to explain any doubt arising on the face of the note as to whether it was the note of the Blannerhasset Oil Company or that of said Scott and Homer. The decision was simply rendered upon the face of the note in the absence of any pa-rol evidence whatever. Doubtless the ruling of the court upon the question before it was right — that is, that the paper in question was prima faeie the note of said Scott and Homer. I do not regard the case as settling any other question, which might have been raised by the offer of parol evidence tending to show, that the company was incorporated, and that the consideration, for' which the note was given, was to the company, and that Scott and Homer as the president and secretary of the company were authorized as such to give the note of the company, &c. See Hogson v. Dexter, 1 Cranch 345, upon the question of construing certain descriptions of contracts.
In the case of Mechanics Bank of Alexandria v. The Bank of Columbia, 5 Wheat. 326, it was held according to the syllabus, that where a check was drawn by a person, who was the cashier of an incorporated bank, and it appeared doubtful upon the face of the instrument, whether it was an official or a private act, parol evidence was admitted to show that it was an official act. The acts of agents do not derive their validity from professing on the face of them to have been done in the exercise of their agency. The liability of the principal depends upon the facts, 1. That the act was done in the exercise, and 2. within the limits of the power delegated. In ascertaining these facts, as connected with the execution of any written instrument, parol testimony is admissible.”
In the case of Nash v. Towne, 5 Wall. 689, it was held according to the syllabus, that “ 4. When an agent has entered into a written contract in which he appears as principal, parol evidence is admissible to show, with a view of exonerating him, that he disclosed his agency and mentioned the name of his principal at the time the contract was executed.” But Judge Clifford who delivered the opinion of the court in that case at pp. 703,,704 says : “ Where a simple contract, other than a bill or note, is made by an agent, the principal, whom he represents, may in general maintain an action upon it in his own name, and parol evidence is admissible, although the contract is in writing, to show that the person named in the contract was an agent, and that he was acting for his principal. Such evidence, says Baron
In Kean v. Davis 1 Zab. 583, it was held as follows : “ 1. A bill of exchange signed J. K., President of E. & S. P. P. Co., leaves it ambiguous on the face of it, whether J. K. individually, or the company, is the drawer. 2. In such case without any explanatory proof J. K. individually would be considered the drawer of the bill. 3. When a written instrument is not ambiguous or uncertain on its face, parol proof cannot be resorted to, to show what was the real intention of the parties. Put in cases of ambiguit}’- on the face of the instrument, as in the above bill, it may be introduced to explain, which of two doubtful constructions was the intent of the parties'; and it may be introduced to show, who really intended to sign an instrument, as that an endorsement on the back of a note was.intended for a signature as joint-maker.”
In Brockway v. Allen, 17 Wend. 40, the action was upon a promissory-note signed by the defendants, adding to their signature “ Trustees of the First Baptist Society of Brockport.” It was held by the court upon demurrer, that the defendants prima jade were personally liable, but that such presumption of liability might be rebutted by proof, that the note was in fact given by the makers as agents of a corporation for a debt due from
In Palmer v. Stevens, 1 Davies 471, the action was brought upon a promissory note in these words:
“ On demand for value received we promise to Nathaniel Palmer one thousand dollars on interest.
“ G. SteveNS.
“W. G. S.”
The plaintiff proved that the note and the signatures were all in the handwriting of William G. Stevens, the defendant, whose initials (W. G. S.) were signed to the note. The defence was, that the note was given as the note of G. Stevens & Sons, who alone were liable, and that it was signed by the defendant as their clerk, his initials having been appended simply to indicate that he signed it. Evidence in support of this defence having been offered, a verdict was rendered for the defendant. Upon a motion for a new trial the court in delivering their opinion say: “If-the defendant by placing his initials under the name of G. Stevens intended to bind himself as a maker of the note, there can be no doubt of his liability in that character, and this was a point to be considered by the jury/’ &c. See also Manor v. Chandler, 9 Mass. 335.
In Lazarus v. Shearer, 2 Ala. (N. S.) 718, the action was by the payee against the acceptor of a bill of exchange addressed to and accepted by Gilbert Shearer, president of the Selma and Tennessee Railroad Company. The plea was the general issue. On the trial the plaintiff having offered in evidence the bill of exchange with the acceptance thereon, the defendant proposed to prove, that the bill was drawn for a debt which the company owed the drawer ; and that the holder of the bill, at the time the same was drawn, was fully apprised by the drawer, that it was intended to be drawn upon the defendant as president of the company, and not in his private capacity. The evidence was objected to, but admit-
In Brown v. The Butchers and Drovers Bank, 6 Hill 443, it was held, that a party may become an endorser of a bill or note by any mark or designation he chooses to adopt, provided it be used as a substitute for his name, and he intends to be bound by it. Per Nelson, Chief Justice : “ An endorsement is valid, though written with a lead pencil. Where a party placed the figures ‘ 1, 2, 8/ upon the back of a bill of exchange, by way of substitute for his name, intending thus to bind himself as endorser, held, valid endorsement, though it appeared he could write.”
In Rogers v. Coit et al., 6 Hill 322, the syllabus is : “The agent of a company, with the assent of his principals, and in order to discharge their debt, drew a bill of exchange in his own name on a part of them, payable to the creditor, 'which after being accepted was endorsed and delivered to a third person, who brought an action against all the members of the company to recover the amount. Held, that there was no privity between them and the plaintiff, and that the action was not maintainable either upon the bill itself or the original consideration. Otherwise, had it clearly appeared that the name in which the bill was either drawn or accepted was one of those by which the company allowed themselves to be known and represented.”
In the case of Fuller et al. v. Harper et al., 3 Gray 334, it was held, that a bill of exchange stamped in the margin “Pompton Iron Works” and concluding thus: “Which place to account of Pompton Iron Works. W. Burt, agent,” purports to be the bill of the Pompton Iron Works, and is binding on the person carrying on the manufacture of iron- in that name, if Burt was his authorized agent. In this casé Judge Metcalf in delivering the opinion of the court at pages 341 and 342 says :
In the case of Conro et al. v. Port Henry Iron Company et al., 12 Barb. 27, it was held among other things according to the syllabus as follows : “ A corporation is liable upon a draft drawn or accepted by a party authorized for the purpose, though the corporate name be not mention- - ed in such draft, if it be drawn or accepted under a name adopted by the corporation. Notice to the agent of the corporation is notice to the corporation itself. The tendency of modern decisions is to assimilate the actions, rights, duties and liabilities of corporations to those of individuals. A subsequent ratification by the principal of the act of his agent is equivalent to an original authority. A corporation is liable for the acts of its authorized agents, although the agent contracts in his own name
In this case Judge Willard, who delivered the opinion of the court, at page fifty-three says: “ To create a liability in the Port Henry Iron Company, as a corporation, it is by no means essential that the corporate name should be used in the drafts. It is 'enough that they were drawn or accepted under a name adopted by them by a party authorized for that purpose by the company. That authority need not be in writing, nor proved by a resolution of the board of directors. It may be shown by the conduct of the officers of the corporation, their ratification of it by paying drafts so drawn, or by other acts of an unequivocal character indicating their assent thereto. A subsequent ratification is equivalent to an original authority. Moss v. The Rossie Lead Mining Co., 5 Hill 137; Story on Ag. 293, § 245; Rogers v. Kneeland, 10 Wend., affirmed in error, 13 Id. 114; Moss v. McCollough, 7 Barb. 279.”
In Been v. The Phœnix Glass Company et al., 14 Barb. 358, it was held, that “ when the directions given by the managers of a company to one of its officers are merely verbal, it is difficult for those, who have dealings with the company, to prove them by any direct evidence. In such cases, where the acts of the officers are performed at the office of the company, are of public character, and are numerous and long continued, it is reasonable to presume that they are in conformity with the instruction of the managers. If the directors of a company, either through inattention or otherwise, suffer its subordinate- officers to^pursue] a^ particular line of conduct for a considerable period without]objection, they are as much bound to those who deal with the officers
“In Hovey v. Magill, 2 Conn. 680, it was held, that “ where A. being the authorized agent oí a manufactur-' ing company gave to B. a promissory note, in the body of which were these words: ‘ I promise to pay,’ &c., the signature being ‘A., agent for the M. M. Company,’ and it appeared that A. had been in the constant habit of signing notes in this manner, with the knowledge of the company, which had been regularly paid, it was held, that he was not personally liable.”
In Roberts v. Austin, 5 Whart. (Pa.) 313, it was held as follows: “1. In an action in the district court for the city and county of Philadelphia by the payee of a bill against the drawer the defendant filed an affidavit of defence, stating that he, as agent of R. J. (the drawer of the bill) purchased certain merchandise of the plaintiff; that the name of his principal was disclosed by him to the plaintiff at and before the time of the purchase; that the merchandise was furnished for the principal upon the credit and for the use of the principal; and that the bill of exchange was given by him to the plaintiff in payment for the said merchandise, &c. Held: That this was a sufficient affidavit of «defence to prevent a judgment.”
In the case of Lindus v. Bradwell, 7 Eng. C. L. R. and 5 Man. G. & S. 582, and 5 C. B. 583, the syllabus is as follows: “A bill of exchange addressed to the defendant by the name of ‘ William B.,’ was accepted by his wife, by writing across it her own name, ‘Mary B.’ There was no evidence of any express authority in the wife to accept the bill; but on its being presented to the husband, after it had become due, he said he knew all about it, that the bill was a millinery bill (for which the husband appeared to be liable) and that he would pay it very shortly: Held, That he was liable as acceptor.” This was an action of assumpsit. The first count stated, that on the 12th of August, 1844, one Wil
“Without expressing any opinion upon the matter, I directed a verdict tor the plaintiff, reserving leave to the defendant to move to enter it for him, if the court should be of opinion, that he was not liable. Upon the best consideration I can give to the very elaborate argument we have heard, I think, the defendant is bound by the acceptance of his wife. The evidence of Henry Lin-dus shows, that the defendant represented himself to be a person bound by the bill, after his attention had been positively called to it. He says he knows all about it, that it is accepted by his wife, and mentions the particular transaction out of which it grew, and promises tó pay it shortly. The irresistible inference from this is, that he considers the bill as one that he is liable to pay. He in effect says, that his wife was authorized by him to accept this particular bill in the way she did. At any rate the conversation fairly admits of that inference. He sees that his wife has written her own name across the bill, an¿ recognizes it as done by his authority. The question is, whether it is competent to a man to give his wife such an authority. Cotes v. Davis, a case that has been since recognized, seems to be a strong authority upon the subject. But upon principle it seems to me, that there is no objection to the plaintiffs recovering upon this bill. The acceptance is in writing and therefore satisfies the statute. 1 & 2 G. IV. ch. 78. If a man says to his wife, accept such a bill, drawn upon me, in your own name, unless he intends to be bound by that, he means nothing. Unless such an acceptance operates to charge him, it has no operation at all. The defendant clearly meant to bind himself, if in point of law he could do so. It is said that a drawee cannot bind himself otherwise than by writing his name on the bill. But suppose the drawee with his own hand accepts the bill by writing another name across it, will he not be liable ? Here the defendant has by the hand of his wife written*168 “ Mary Brad well ” on .the bill. If he had done that with his own hand, it clearly would have been his own acceptance; and I know of no rule of law that makes sucp an authority void. It is difficult to say, that, if the defendant had written his true name, William David Bradwell, across the bill, that would not have been an acceptance that would have bound him; and yet, inasmuch as that would not be the same name in which it was addressed, if the argument of the defendant’s counsel is well founded, he would not be liable. I admit that nobody but the defendant could accept this bill so as to charge him; but he has accepted it by the hand, and in the name of his wife; and that I think, is a suf-ficent acceptance to bind him.”
Criswell, Judge, said in the same case : “ I am of the same opinion, Cotes v. Davis involves a principle that goes very nearly the whole length of what we are now deciding. There an endorsement by a married woman was held sufficient to pass the property in a note, which could only pass by the husband’s endorsement, as. also appears from Barlow v. Bishop. In Cotes v. Davis it was objected, that no title to a bill of exchange or promissory note could be made through the endorsement of a feme covert, and that what the defendant did after the bill had become due, must be immaterial, if he was not previously liable.' But Lord Ellenborough said : ‘The husband may authorize the wife to endorse bills of exchange or promissory notes as his agent; and after the acknowledgments and promises (a) of the defendant in this case it may reasonably be presumed against him, that Mrs. Carter had authority from her husband to endorse the note in question.’ And he further says: ‘ We may fairly carry the presumption one step further, and presume-that the husband authorized her to endorse notes in the name by which she herself passed in the world.’ Still, it must be the husband’s endorsement. That principle was again recognized in Presturick v. Marshall and Prince v. Brunatte. The jury must be assumed to have
In this case, decided in 1848, the argument of counsel was elaborate, and both American and English decisions were cited — among others the case of Pentz v. Stanton, 10 Wend. 271, &c.
In the case of Van Reimsdyk v. Kane et al., 1 Gall. 630, it was held, that “ if one partner in a voyage on joint account be authorized by the others to take up money on the credit of the whole concern, and draw bills therefor on a house at Amsterdam, and the partner take up money and draw a bill for the same, directing it to be charged to the account of all the partners, but it is signed by himself only, it seems such bill is binding on all the partners (c); at least equity will enforce payment thereof against all the partners in favor of the payee of the bill, who has trusted the money on the faith of the joint credit. In equity such a bill drawn under such circumstances would be deemed to have been guaranteed as to acceptance and payment by all the partners. The statute of frauds does not apply to such a case ; for the guaranty is not for the payment of the debt of another, but for the debt of the guarantees. If no original authority to draw were given, but subsequently the whole transaction was ratified by all the partners,
In the 7th American ed. of Smith’s Lead. Cas. it is said : “In Truman v. Loder, 11 A. & E. 595, the point was expressly decided : 1 1. Parol evidence said the Lord Chief Justice, in that case, is always necessary to show, that the party sued is the person making the contract and bound by it; whether he does so in his own name, or in that of another, or in a feigned name, and whether the contract be signed by his own hand, or that of an agent are enquiries not different in their nature from the question, — who is the person who has just ordered goods in a shop? If he is sued for the price, and his identity made out, the contract is not varied by appearing to have been made by him in a name not his own. The Salmon Falls Manufacturing Co. v. Goddard, 14 How. 446, 455; and in a case of Lindus v. Bradwell, 5. C. B. 583, the court of common pleas held, that the drawee of a bill of exchange, accepted by his wife in her own name, but by his authority, was liable upon the bill as acceptor.”
Again in the same work at page 379, it is said : “ In the Bank of North America v. Hooper, 5 Gray 567, the court refused to allow a recovery against one man on a note made by another on proof that the latter was acting as his agent, and said that the rule that a principal may be liable as a privy on a contract, in which his name does not appear as a party, does not embrace negotiable instruments. The same point was decided in Pentz v. Stanton, 10 Wend. 271; Leadbeater v. Farren, 5 M. & S. 345; and Davis v. Clarke, 6 Q. B. 16, and would seem to be well settled on both sides of the Atlantic. A man may, however, make the signature of another virtually his own by using or allowing it to be used as such in the course of his business, and will under these circumstances be as much bound, as if his own name was affixed to the instrument in question: Lindus v. Bradwell, 5 C.
The same work at pages 379 and 380 after referring to the case of Roberts v. Austin, 5 Whart. (ubi supra) 313, says: “ The weight of authority, however, clearly is, that when the body of the contract contains apt words to charge the agent, he will be personally responsible for its fulfilment, notwithstanding the addition of qualifying words to his signature implying that he is acting in an official or representative capacity,” and cites a number of authorities in support thereof; but cites also the case of Leach v. Blew, 8 Smed. & M., 221, where a promissory note made by the defendants “ as trustees,” was interpreted as imposing a fiduciary or official, and not a personal responsibility, and cites also 1. American Leading Cases, 761, 5th ed.
In the same work at page 380 it is further said : “ The current of the more recent cases is accordingly in favor of viewing the principal as bound by and entitled to take advantage of the contract of the agent, even when it purports to be made solely with the latter, and does not disclose that he is acting in a representative capacity; Beckham v. Drake, 9 M. & W. 79; 11 Id. 515; 2 House
From the decisions and authorities, to which I have referred, there seems to be no little apparent conflict between them, as to how far parol evidence may be resorted to, and under what circumstances, to fix liability upon a principal upon a bill of exchange, draft or other negotiable paper made by an agent. I have consulted a great number of authorities, both American and English, upon the subject, and have cited them in this opinion with the view of arriving at a correct conclusion in the case at bar. After the best consideration I have been able to give to the question and the authorities cited, I have arrived at the conclusion, that while the courts should generally refuse to allow a recovery against one person on a negotiable instrument made by another on proof that the latter was acting as his agent, yet a person may make the signature of another virtually his own by using or allowing it to be used as such in the course of his business; and that he will, and should under such circumstances when clearly proved, be as much bound, as if his own name were affixed to the negotiable instrument in question. I think as Judge Cowen did in Rogers v. Coit et al., 6 Hill 322, that where it clearly appears that the name in which the bill in question was either drawn or accepted, was one of those by which the company allowed themselves to be known and represented, and that fact is clearly shown, the company should be held liable thereon under circumstances. I also concur with Judge Nelson as said by him in Brown v. The Butchers and Drovers Bank, 6 Hill 444, “that a person may become bound by
The next question to be considered is: Does the principle of law which I have deduced govern the case at bar, and should it be so held upon the facts proven ? This enquiry makes it necessary to consult the admissions and other evidence appearing in the cause. And first, it is clearly shown, that the said B. S. Compton was, at the time he drew and signed the bill in question, and for some time before, the president of the defendant, a corporation. Indeed this fact is not denied. 2d. To my mind it clearly appears from the evidence, that at the time said Compton, president as aforesaid, made the bill in question, he was the authorized agent of the defendant with full power and authority to make such a bill for and on behalf of the defendant in its business as its president and agent. 3d. That at the time said Compton made said bill, he was acting as the president and as such agent of the defendant, and that said bill was made by him as the defendant’s president and agent, and in the business of the defendant and for a valuable consideration moving from the drawee, Betts, to the defendant alone. 4th. That it was the custom of the said Compton, as the president and acting agent of the defendant in its business for some time before the drawing of said bill to draw similar bills, signing them with his name “B. S-Compton, president,” and sometimes “B. S. Compton,” and that such bills so made and signed were always recognized and taken up by the defendant as its own paper. 5th. That it had been the custom of the defendant for
From these facts I feel authorized under the authorities and decisions upon that subject (ubi supra) to conclude and hold, that the defendant had, before said bill was made and delivered, authorized its president to make and deliver the bill in question, signed “B. S. Compton, Prest.,” to represent and bind the defendant as the bill of the defendant, and that said bill is the bill of the defendant.
Some question is made by the counsel for the appellant in this case as to the sufficiency of the protest of the bill on its face. But I consider that question has become immaterial in the cause as the bill alleges the presentment, demand and dishonor of the bill and substantially notice thereof to the defendant. And it is proven that after the maturity of the bill and its presentment and dishonor, the defendant by its said president and agent promised to the drawee (Betts) in the presence of the plaintiff to pay the same to the plaintiff. In the case of Moore v. Ayers, 5 Smede & M., it was held, “that an allegation in a declaration against the endorser of a note of a demand and notice is sustained by a proof of a promise to pay after maturity by the endorser. In 2 Dan. on Negotiable Instruments, at page 135, §
In Byles on Bills 4th American ed., top page 324 and side page 203, it is said: “ Proof of protest of a foreign bill is excused, if the drawer had no effects in the hands of the drawee, and no reasonable expectation that the bill would be honored; or if the drawer has admitted his liability, by promising to pay. ‘ By the drawer’s promise to pay,’ observes Lord Ellenborough, ‘he admits.the existence of everything which is necessary to render him liable. When called upon for payment of the bill, he
It appears in this case that the consideration for the endorsement of the bill by Betts to plaintiff was a debt for money loaned by the plaintiff to said Betts. There is no doubt that a pre-existing debt of the drawer, maker or acceptor is a valid consideration for his drawing or accepting a bill or executing a note, and indeed is as frequently the consideration of negotiable paper, as a debt contracted at the time, and it is equally valid and sufficient consideration for the endorsement and transfer to the creditor of the bill. And the best considered, as well as the most numerous authorities regard the creditor, who received the bill or note of a third party from his debtor either in payment of, or as collateral security for his debt, as entitled to the full protection of a bona fide holder for value, free from all equities which might have been pleaded between the original parties.” 1 Daniel on Neg. Instruments, page 145 § 184.
I do not think the evidence in this cause shows, that the drawee put said note in circulation for a fraudulent purpose. And certainly it does not appear, that plaintiff has-in any -way been connected with fraud in the transaction. He appears to be a bona fide holder of the bill for value, and is entitled to protection as such against all equities which might have been pleaded between the original parties.
The appellant’s second assignment of error is: “ That, the court erred in not passing upon the validity of the depositions.” It does not appear that exceptions were filed and brought to the notice of the court to the depositions for want of validity of such depositions, or that the hearing of the cause was objected to. But it is stated in the middle of the decree as follows : “ And the court is of opinion, that in the decision of this case it is not necessary to pass upon the objections noted by the plain
For the foregoing reasons I am unable to see any substantial error in the said decree of the circuit court of the county of Wood, rendered in this cause'on the 2d day of October, 1877; and the same must therefore be affirmed with costs and damages to appellee Devendorf according to law against the appellant.
JUDGMENT affirmed.