25 Fla. 933 | Fla. | 1889
Lead Opinion
The bill of foreclosure before us alleges that the appellee executed a promissory note payable to the order of the Panasoffkee and Withlacoochee Navigation Company, and a mortgage on lands to secure its payment, and that the note and mortgage were assigned to one John Conley for value received, by D. E. Towns, as President, and O. S. Bushnell, as Secretary of the said Panasoffkee and Withlacoochee Navigation Oompauy, the said President and Secretary having the authority so to do, all of which will appear indorsed and acknowledged upon said mortgage. The note and mortgage are made exhibits to the bill as a part of it. The assignment indorsed on the mortgage is, omitting the statement of the locality of its execution and the names and attestations of the subscribing witnesses, as follows:
Be it known to all men that on this thirteenth day of September, A. D. 1884, we, the undersigned D. E. Towns,. President, and C. S. Bushnell, Secretary of the Panasoffkee and Withlacoochee Navigation Company, have transferred to John Conley the attached mortgage and note, and on the part of said company have hereto attached our names and affixed our seals the day and year first above written.
D. E. Towns, [l. s.]
C. S. Bushnell. [l. s.]
The appellant has demurred, and the grounds stated are, that it appears by the bill, first, that complainant has no title to the note or mortgage, and second, that neither of said instruments has been assigned to the plaintiff by the Panasoffkee and Withlacoochee Navigation Company, and third, that the company hold title to the note and mortgage.
It is contended on behalf of appellant that the assignment is the act of Towns and Bushnell individually, and not the act of the corporation, but the authorities do not sustain this position. Where a note is payable to a corporation by its corporate name, and is indorsed by an authorized agent or official, with the suffix of his official position, it will be regarded that he acts for his principal disclosed on the paper as the payee, and who, therefore, is the only person competent to transfer the legal title. Daniel on Negotiable Instruments, section 416 ; Randolph on Commercial Paper, section 145. An indorsement by an officer of a corporation is prima facie the act of the company. Randolph, section 368 ; Erye vs. Tucker, 24 Ill., 180. In McIntyre vs. Preston, 5 Gilman, 48, a note payable to a corporation was assigned thus: “Without recourse. Joel Scott, Sec’y,” and it was held that when properly filled out, as the plaintiff might do on the trial, it was sufficient to pass the legal title to the note, and that the authority of Scott, the Secretary, to assign it could only be questioned by plea. See also Goodrich vs. Reynolds, Wilder & Co. 31 Ill., 491. Northampton Bank vs. Pepoon, 11 Mass., 288, decides the same where the indorsement was in blank by an authorized attorney signing his name and styling himself attorney. Folger vs. Chase, 18 Pick., 63, was a case where a note was indorsed by the payee to a bank, and
Looking at the endorsement it is apparent from its face, considering its entire language, that the officers intended to act on behalf of their company, and not as principals, and when viewed in the light of the above authorities, the conclusion follows that the endorsement is the act of the company, and not of the individuals whose signatures are affixed to it.
The bill alleges that the officers had authority to assign the note and mortgage, and this is admitted by the demurrer, and can only be traversed by proper averments in an answer or plea.
There is nothing in the conclusion reached or the au
The order overruling the demurrer is affirmed, and the cause will be remanded for further proceedings consistent with this opinion and the equity practice in such cases.
Dissenting Opinion
Dissenting opinion by
I do not concur with the majority of the court. That the assignment to Conley, so far as legal obligation is concerned, is not in its character such as of itself to bind the corporation does not, I think, admit of dispute. The paper executed for the purpose of assignment is not in the name of the company, and is executed by parties who do not in terms claim authority to make it, and there is nothing in it that makes it the act of the company. Towns and Bushnell “ have transferred ” to Conley. This is their individual act, according to fully established law, notwithstanding the words “ President ” and “ Secretary,” which follow. These in such a connection are only words describing the persons, and do not import representative action — in this case more manifest from the fact that they sign the paper, not in the name of the company, but in their individual names, without any official or other designation of agency, and affix their individual seals thereto. Such an instrument,- regarded upon its face alone, cannot be taken as transferring the property of the company in the note and mortgage. It belongs to the class of transactions in which persons acting, or claiming to act, iu a representative capacity, so discharge their functions as to make themselves individually responsible. Among the numerous cases of this character are Barker vs. Mechanic
The assignment itself being insufficient to bind the corporation, I think the allegations of the bill in regard to authority of the “ President ” and “ Secretary ” of the corporation to make it, are not sufficiently specific to hold the demurrer as admitting the authority. I concede that if they were, the complainant would be entitled to his decree. The infirmity of the assignment is not such as to render it totally void, as against the corporation ; but upon due allegation and proof of proper agency in its execution it should be upheld as the act of the corporation, that this may be done, by evidence aliunde, where the instrument itself is defectively executed, is maintained by abundant authority. See among others, Fleckner vs. Bank of U. S., 8 Wheaton, 338; Everett vs. United States, 6 Porter, 166; McWhorter vs. Lewis, &c., 4 Ala., 198; Milledge vs. Boston Iron Co., 5 Cush., 158; Haile vs. Pierce, 32 Md., 327, and Tippetts vs. Walker et al., supra. In the last case it was decided that the persons professing to act as agents were individually liable, and not the corporation, but the court virtually said that if there had been evidence to show the agency of the persons, its decision would have been different.
My conclusion is that the demurrer should have been sustained, with liberty to complainant to amend his bill, if he can, by more definite and certain allegations of the authority of the President and Secretary to make the assignment in question.