Fogg v. Virgin, 19 Me. 352

Fogg v. Virgin

19 Me. 352 | Me. | 1841

The opinion of the Court was delivered by

Weston C. J.

The defendants sign as individuals, affixing to their names nothing, indicating a representative capacity. They describe themselves, in the body of the instrument, as trustees of the Wayne Scythe Company ; but they do not profess to promise in their behalf. It is a mere description of themselves, of which many examples may be found, where the persons, signing or executing instruments, have been held personally bound. Thatcher & al. v. Dinsmore, 5 Mass. R. 299; Foster v. Fuller, 6 do. 58; Taft v. Brewster & als. 9 Johns. 334; Stone v. Wood, 7 Cow. 453; Hills v. Bannister & al. 8 Cow. 31; Burrill v. Jones & al. 3 B. & A. 47; Eaton v. Bell, 5 do. 34.

In the cases cited for the defendants, it is manifest, that the actual signers of the instruments, adduced in evidence, were acting in behalf of others, whom they intended to bind, without assuming any personal responsibility. The distinction is well illustrated in the case of Barker v. the Mechanic Ins. Co. The defendants were attempted to be charged on a note, in these words, “ I John Franklin, President of the Mechanic Fire Insurance Company, promise to pay to the order, &c. for value received. John Franklin.” He was held personally bound, and not' the company. And it was further held, that the legal effect would have been the same, if the same description of himself had been added to his signature. The Court say, “ he describes himself as president of the company, but to conclude the company by his acts, he should have contracted in their name, or at least in their behalf.”

*355But if the company are bound here, and such was the intention of the contract, the plaintiff is entitled to judgment. The company are not incorporated, and have therefore no corporate name, by which they can sue and be sued. They are a voluntary association of individuals. The case finds, that the defendants were members of the company, at the time the note was made. If other members should have been sued, they should have disclosed their names, and taken advantage of the objection, by a plea in abatement. Trustees of ministerial and school fund in Dutton v. Kendrick, 3 Fairf. 381.

Judgment for the plaintiff.