Hall v. Bradbury

40 Conn. 32 | Conn. | 1873

Carpenter, J.

This action is brought by an indorsee against an indorser of a promissory note. The note was signed, “ B. E. Eisher, agent.” Nothing on the face of thp note indicated who the principal was, and it was not payable at any particular place. When the note fell due the holder made demand of B. E. Eisher. The defendant claimed to have proved that George O. Nelson was the principal, and’ that the plaintiff knew it. It does not appear however that that fact was known to the bank, which then owned the note. The defendant therefore claimed that demand of payment should have been made of Nelson, and asked the court so to charge the jury. The court declined so to charge, but did’ charge that demand of Eisher, who signed the note, was suffient.

In this the court was clearly right. It is elementary law that an agent must so contract as to bind his principal or he will be himself bound. In this case the note purports on its face to bind no one but the party who signed it. “I promise to pay, Ac.” The addition of the word “ agent ” to the name signed gives no clue to the principal. The holder at maturity knew no one as maker but Eisher. Fisher, therefore, bound himself, and demand of him was all that was required, The fact that he ceased to be the agent of Nelson before the note fell due makes no difference. His liability having attached, remains till the note is paid. It was not in his power by terminating 1ns agency to release himself from his obligation to pay. This is not one of those cases in which one party transacts business in the name of another. It does not fall therefore within the principle recognized in Pease v. Pease, 35 Conn., 131. This case appears to be one of ordinary agency, where one man transacts business by another as his agent. The agent, to save himself from liability, must contract in the. name of his principal, or in some other mode point him out as the party contracting.

The court charged the jury that if the plaintiff, when applied to by the defendant for information before endorsing the note, represented to the defendant that Nelson was perfectly good, and was doing a good business, and that the defendant would never have any trouble if he endorsed the note; and that if the representations were untrue, and known to be so by the plaintiff when made, then their verdict should be for the defendant. The defendant excepts to that portion of the charge which relates to the knowledge of the plaintiff. Although the defendant alleged in his notice that the plaintiff knew the representations to be false, and on the trial offered evidence in support of the allegation, yet he now insists that knowledge is not essential. His claim is really this, that if a party, when applied to for information, in good faith recommends another to be in good standing when ho is not, he is bound to make it so ; a proposition sustained, by no authority, and which requires none to refute it. It would be strange doctrine indeed to hold a party liable, directly or indirectly, for the consequences, if representations honestly made by him in respect to matters which did not concern him, should turn out to be untrue. When the representations are alleged to have been made the plaintiff had no interest in the note, and it does not appear, nor is it claimed, that he contemplated having any. The transaction between the parties was in most respects distinct from, and independent of, the indorsement. Although the defendant sought for information which should aid him in deciding whether he would or would not indorse the'note, yet there was no understanding or agreement relating to or in any way affecting the contract implied by law from the indorsement. In Dale v. Gear, 38 Conn., 15, four classes of cases- are referred to, as exceptions to a general íulé, in which parol evidence may be received to vary the implied contract of an indorser. First, where the relation between indorser and indorsee is that of principal and agent. Secondly, where the indorsee holds for some special purpose, or in trust. Thirdly, where the relation between the parties is that of principal and surety, the indorser being surety for the indorsee; and fourthly, where there is an equity arising from an antecedent transaction, including an agreement that the holder should rely solely upon the responsibility of the maker. It is not contended that this case is within any of the first three exceptions ; nor is it claimed that the antecedent transaction contained any agreement affecting the rights of the parties. If there is any controlling equity arising from this transaction, it must arise from the fact that the plaintiff was mistaken in the information given by him. It hardly requires all argument to show that no equity arises from that source which will defeat the plaintiff’s rights as indorsee. It is doubtless true that a party may, by pretending to have knowledge which he does not possess, intentionally or wantonly mislead another to his injury, and thereby render himself liable. But that is not this case. The plaintiff made no pretension to knowledge or means of knowledge not possessed by others, and the case discloses no intention or design on his part to induce the defendant to indorse t'ho note. The supposition that he was. disinterested, and acted in entire good faith, is consistent with all that is claimed against him. Indeed it may well admit of doubt whether all that was said by the plaintiff respecting Nelson’s responsibility was not merely an expression of opinion. That part of it relating to the future was clearly so; and if the defendant understood the other part, as ho might have done, in the same sense, there is still less ground, if possible, for sustaining the defendant’s claim. Whether this is so or not, the language used does not import a warranty. These considerations also show that it is not a case for the doctrine of estoppel.

A new trial must be denied.

In this opinion the other judges concurred.