May v. Hewitt, Norton & Co., 33 Ala. 161

33 Ala. 161 | Ala. | 1858

RICE, C. J.

—When it is doubtful from the face of a contract, not under seal, whether it was intended to operate as the personal engagement of the party signing, or to impose an obligation upon some third person as his principal, parol evidence is admissible to show the true character of the transaction; especially, if the right of a bona-fide endorsee is not prejudiced thereby.—Lazarus v. Shearer, 2 Ala. 718; Deshler v. Hodges, 8 Ala. 509; McWhorter v. Lewis, 4 Ala. 198; Mott v. Hicks, 1 Cowen, 513.

That principle is applicable to the contact here sued on, as the same is described in the first count of the complaint. Eor, conceding that the acceptance, unexplained by evidence aliunde, imports, prima fiaeie, a pei’sonal liability against B. W. Bell; yet enough appears from an inspection of the bill, the direction thereof, and the acceptance, to create some doubt as to that liability, and to justify the admission of parol evidence to show that the acceptance was intended to bind the defendant, that he authorized it to be made in that name and form, and that it does in fact bind him. The cases above cited, from our own reports, compel us to that conclusion, unless we overrule them; and we are not prepared to do that.1 See Trueman v. Loder, 11 Ad. & Ellis, 589; Collyer on Partn. § 408-410, et seq.

[2.] It is a necessary result from the principle recognized in those cases, that the plaintiff was authorized to set forth in his complaint the bill and acceptance, and, in ' connection therewith, to allege the existence of such facts as would show that the defendant Was bound by the acceptance. The plaintiff was authorized to aver whatever he was authorized to prove. And if all the averments and matters set forth in the first count of the complaint are true, the defendant is liable on the acceptance. As the bill was directed to the owner of the steamboat, and the defendant was the owner, and authorized the acceptance to be made for him, in the name and form in which it was made, he is liable upon it.—Edwards on Bills and Notes, 81-83, and notes; Mott v. Hicks, 1 Cowen, 513; Trueman v. Loder, supra; Collyer on Part, supra.

If the suit here had been by a bona-fide endorsee without notice, against B. W. Bell, to enforce the personal liability against him which appears prima facie from the face of the instrument unaccompanied with explanation, then, perhaps, the rule that when a person has authority, as agent, to accept a bill for another, he must do it in such a manner as to show that it is the act of his principal, might prevent B. ~W. Bell from exonerating himself from personal liability. That rule is mainly designed for the protection of payees and bona-fide endorsees, who have no other notice of the transaction than such as is disclosed upon the very face of the instrument itself; and, of course, cannot be applied strictly between the parties to -the present suit—the endorsee of the bill, and the principal, for whom the acceptance was really made by his authorized agent, in the authorized name and form.

As the first count of the complaint is good, and the demurrer was to the whole complaint; there was no error in overruling the demurrer, even if the second count be defective; but as to that count we decide nothing.

[3.] It appears from the bill of exceptions, that the charge excepted to was accompanied by another bearing on the same subject; the latter being consistent with, and explanatory of the former. ¥e must, therefore, construe the charge excepted to in connection with that other, and with the evidence.—Barber v. Brace, 3 Conn. Rep. 9. Thus construing it, we understand it to assert, that if the defendant, both before and after suit brought, had the conversations referred to in the charge, with the Messrs. Adams, “ in reference to the bill sued on and if the tenor of those conversations was such as supposed in the charge, then the failure of the defendant, in those conversations, to deny Bell’s authority to accept the bill for him, and his assertion that Cox ought to pay a part of the bill for a single specific reason, (to-wit, i because, before the policy of insurance expired, the steamboat Messenger was sold to him,” Cox,) was evidence as an admission of defendant that Bell was authorized to accept the bill. The charge does not assert that it was either sufficient or conclusive evidence, but simply that it was lawful evidence; and we think it entirely defensible.—Wheat v. Croom, 7 Ala. 349; Vail v. Strong, 10 Vt. R. 457.

We are unable to discover any error, and must affirm the judgment.