Dow v. Moore

47 N.H. 419 | N.H. | 1867

Bellows, J.

We propose first, to consider whether the defendant had authority to bind the company by a promissory note. Upon that point it appears that the company carried on the business of a common country store at Northwood, and that defendant was the treasurer and agent to buy and sell. It appeared also that the constitution and bylaws of the association provided that its business should be conducted upon the cash principle, and that no credit should in any case be given. The defendant however, offered to prove that the cash system was abandoned by the company or division, that goods were sold on credit to every officer of the division, and money was hired with the knowledge and consent of the division.

Independent of any restriction contained in the constitution and bylaws there is evidence of authority in the defendant to bind the company by a promissory note. He was the acting partner in a trading concern, a common country store; was the treasurer of the company and the agent to buy and sell, and from this might well be implied an authority to give a promissory note. It is held, indeed, that a partner, and especially the acting partner, in a trading concern, has, as matter of law, an implied power to bind the firm by bill or note. Story on Part. sec. 102, 102 a, and notes and cases; Winship v. Bank of A. S., 5 Peters. 529, 561 ; Hedley v. Bainbridge, 3 Adol. & Ellis New R. 316, 321.

The question, then, is, as to the effect of the restriction in respect to the mode of conducting the business. Without undertaking, however, to give a construction to these provisions in the constitution and by-laws, we are of the opinion that the proof offered by the defendant of a subsequent change of the system, was competent. It will be perceived that the offer was to prove that the credit system was abandoned by the division, and that money was hired with the knowledge and consent of the division; and, of course, it is to be understood that the offer was to prove these things by competent testimony, such as would establish the fact that the division had in some legal way abandoned the cash system, and had decided to do business upon credit; and as the evidence offered was rejected, and a verdict directed for the plaintiff, it must, for the purposes of the present inquiry, be taken that such a change was shown. That being the case, and the defendant having also offered to prove that the money for which the notes in suit were given, was hired for the use of the division with the plaintiff’s knowledge while one of the directors, and that it was applied to that use, we are of the opinion that there was evidence of the authority of the defendant to give these notes and bind the company.

The remaining question is, whether this authority was executed in such way as to bind the principal, or whether the agent only is bound. In the case of sealed instruments executed by an agent, it is generally held that the covenant or undertaking must be in the name of the principal, or he will not be bound; and it has even been held that his name must be signed to the instrument, though it was otherwise decided in Tenney v. East Warren Lumber Co., 43 N. H. 343.

In respect to instruments not under seal, the rule has been modified, and it is now well settled, that if the name of the principal appear in the contract, and the intention to bind him, and not the agent, can be collected from the whole instrument, although that intention be informally expressed, the principal alone will be bound. Story on Prom. Notes, sec. 68 ; Story on Agency, sec. 147, note 4, and sec. 149 ; New England Ins. Co. v. De Wolf, 8 Pick. 56, 63; 1 Am. Lead. Cases 600, and cases collected; Townsend v. Hibbard, 4 Hill’s N. S. Pep. 351, 357 ; Savage v. Mix, 9 N. H. 265 ; and in Tenney v. East Warren Lumber Co., before cited, a deed in the name of the company, but signed D. C. F., President, &c., and E. S. C., Treasurer, &c., was held to be the deed; of the company.

The question then, in the case before us, is, whether the intention to give the notes of the principal can be collected from those instruments, viewed in the light of the surrounding circumstances. Upon the face of the notes themselves the name of the principal appears, the defendant signs it as treasurer, and taking into consideration the fact that he was then treasurer and agent of this principal, and authorized to give its note, it is quite clear that he signed as treasurer of that company, as much so as if after the word treasurer he had added its name. It is quite apparent that the name of the company is inserted as the party for whose use the notes were given, and not for whose benefit the various sums of money were to be paid; nothing of that kind is urged by plaintiffs counsel, and nothing could properly be urged of that sort.

We have, then, a case much like the Despatch Line of Packets v. Bellamy Man. Co., 12 N. H. 229, where a promissory note signed with the agent’s name, followed with the words, "Agent Bellamy Man. Co.,” was held to be the note of the company, although in all other respects it was the note of the agent alone. In giving the opinion of the court, much stress is put upon the words appended to the agent’s name, Parker, C. J., saying that there was no-good reason for adding them if the agent had intended to make a personal contract, and this argument applies in its full force to the case at bar.

In Savage v. Rix & al., 9 N. H. 265, the name of the supposed principal, the town of Dalton, did not appear in the note, and that was an insuperable objection to holding it to be the note of the town; and it was held, also, that the committee had no authority to bind the town by a note, and on that ground the defendants themselves were holden.

In Mechanics Bank of Alexandria v. The Bank of Columbia, 5 Wheat. 326, a check dated "Mechanics Bank of Alexandria, June 25, 1817,” and signed "Wm. Patón, Jr.,” with proof that Patón was the cashier, and that the check was paid out by that bank for a balance due from it, was held to be the check of the bank and not of the cashier. See, also, Story on Prom. Notes, secs. 69 and 70, and cases cited; 1 Parsons on Bills & Notes, 92.

Upon these views we think it may be collected from the notes that it was the intent to bind the company, and not the agent, and therefore there must be

A new trial.