Duncan v. Kirtley

54 Mo. App. 655 | Mo. Ct. App. | 1893

Gill, J.

— This is a suit on a negotiable promissory note, in the usual form, wherein defendant Kirtley promised one day after date to pay to plaintiff, Duncan, or order, the sum of $247.95, with eight per cent, interest, etc. Defendant filed his answer, which was in effect an admission that he signed the note, but claimed that he did so for and on behalf of the “Dearhorn Milling Company,” a corporation, whose authorized agent he was and to whom the plaintiff sold some wheat; that plaintiff took the note fully understanding that the same was the obligation of the Milling Company and not that of the defendant, etc.

The court on motion of the plaintiff struck out the defendant’s answer and entered judgment for the plaintiff for the reason that the matter 'set out in said answer constituted no defense. Defendant appealed.

The question-to be decided is this: Will the maker of a negotiable promissory note be allowed to defeat an action thereon by showing aliunde, the note, that although the instrument appears on its face to be his individual promise, yet with the knowledge of the payee lie executed the paper as the agent of another and was not therefore bound. We think this cannot be permitted, and therefore approve the action of the lower court in striking out defendant’s answer and entering judgment for plaintiff.

While many authorities can be found holding it proper to solve an ambiguity appearing on the face of a written instrument, by letting in extraneous evidence to prove who in fact was intended to be held, I have yet to discover a casé where the maker was allowed to shift the responibility of his positive promise in the manner here attempted. The case of Marks v. Turner (ante, 650) was one of those where outside evidence was deemed proper to clear up such an ambiguity. That was a suit on a written lease which on its face purported to be made by the “St. Joseph Produce Exchange,” a corporation, and the said corporation on the face of the paper agreed to pay the rent to Marks, etc. In that case the defendants were permitted to show that although their names appeared signed to the lease they were the directors and managing officers of the principal corporation and it was on its account .they signed the instrument. But in the case at bar there is no ambiguity. The note in suit is an ordinary negotiable instrument carrying on its face an absolute promise by defendant Kirtley to pay. There is nothing, within the four corners of the instrument, even to suggest that it was not the positive promise of Kirtley, individually. This is a clear case where it is attempted by parol evidence to set aside one instrument and create in its stead another. '

It must be conceded that the “Milling Company” (for whom the defendant claims in his answer to have made the note) could not be charged by the instrument sued on. Sparks v. Dispatch, etc., Co., 104 Mo. 531; Keck v. Sedalia Brewing Co., 22 Mo. App. 187. The Tule is “that no party can be charged as principal upon .a negotiable instrument unless his name is thereon disclosed.” 1 Daniel on Negotiable Instruments, sec. 303 [4 Ed.] In Sparks v. Dispatch, etc. Co. (supra) the plaintiff sought to hold .the defendant on three' negotiable notes made to Sparks and signed, by the individual name' of Jackson, defendant’s president. The trial court permitted the plaintiff to show by parol evidence that the notes signed by Jackson in his individual name were intended as the obligations of the defendant company. . But the supreme court, m an exhaustive opinion by Gantt, P. J., held this error, and decided that no recovery could be had on such notes in a suit against the Transfer Co., that the evidence which tended to take from the notes the name of one maker and substitute another and different person was improperly admitted. By reference to the court’s opinion in that case, beginning at page 541, there will be found a full discussion of the authorities and legal'principas involved,- and to save space here we shall content ourselves with this simple citation. It furnishes a complete .answer to the brief of defendant’s counsel in this case.

Reasoning then from the base of the law as declared in the foregoing, it must be clear that as the Milling Company canno.t be held on the note that was executed by defendant Kirtley in his own name, then •defendant himself must be liable; for the principle is well understood, that if the agent sign a note with his own name and discloses no principal which can be bound, then the agent is himself liable thereon. 1 Daniel Negotiable Instruments [4 Ed.], sec. 305.

Judgment affirmed.

All concur.