33 Ala. 161 | Ala. | 1858
—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.
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.
We are unable to discover any error, and must affirm the judgment.