McCormick v. Stockton & Tuolumne County Railroad, 62 P. 267

62 P. 267 | Cal. | 1900

Suit on promissory note of date July 30, 1898, for five thousand seven hundred and ten dollars, with interest, etc. Judgment was rendered for plaintiff against the defendant Rikert, and for the defendant corporation against the plaintiff for costs. The appeal is from the latter judgment; and the sole question involved is whether the note sued on was the note of the latter defendant.

The note is signed, "Annie Kline Rikert, Pres. Stockton and Tuolumne Co. R.R. Co. Annie Rikert Personally," and is set out at length in the complaint. The answer of the defendant corporation denies that it "made, executed, or delivered to plaintiff the promissory note" sued on. The court found that the defendant Rikert "made, executed, and delivered" the note to plaintiff; and that the defendant corporation "never made, executed, or delivered" it. It is claimed on behalf of the appellant that the evidence was insufficient to justify the latter finding.

The plaintiff's evidence on this point consisted of a resolution of the board of directors of the corporation of date March 5, 1898 — conferring on the president, as "the agent and chief executive of the board," the power "to incur indebtedness, negotiate loans, to enter into any contracts or agreements, . . . . and otherwise to act as the agent of the corporation" — and the note itself, which was produced from the custody of the plaintiff, was put in evidence without objection on the part of the defendants, and with their admission that the defendant Rikert was, and ever since December 27, 1897, had been, president of the defendant corporation.

This evidence would seem to be sufficient to support the appellant's contention; but it is urged, on behalf of the respondent, in support of the finding, that there was no evidence of the genuineness of the president's signature to the note; that it did not appear that she had the power to sign it on behalf of the corporation; and that the note on its face appears "to have been the personal note of Annie Kline Rikert only."

1. With regard to the first point, we do not understand the answer of the defendant to make any issue as to the genuineness of the signature. The note is set out in the complaint, and its delivery is admitted and found. As to the execution of it, the denial is simply that it was executed by the defendant corporation; which — as the delivery of the note is admitted — amounts merely to a denial of the subscription of the instrument by the corporation (Code Civ. Proc., sec. 1933), which was never alleged. The answer must, therefore, be construed as admitting the genuineness of the note — i.e., the genuineness of the actual signatures. (Code Civ. Proc., sec. 447; Abbott's Law Dictionary, Anderson's Law Dictionary, Black's Law Dictionary, Bouvier's Law Dictionary, word "Genuine"; Baldwin v. Van Deusen,37 N.Y. 489; Cox v. Northwestern Stage Co., 1 Idaho, 376, 380.)

Accordingly, the court finds that Annie Kline Rikert "made, executed, and delivered" the note to the plaintiff; which is in effect a finding of the genuineness of both her signatures. Hence the finding objected to cannot be construed as a finding to the contrary. Otherwise we would have to regard it as contrary, not only to the admissions of the pleadings, but to the evidence; for the note was read in evidence without objection; and this — under the circumstances — was in effect an admission of the genuineness of the signatures. (1 Hayne on New Trial and Appeal, sec. 98.)

2. The execution of the note was clearly within the powers conferred upon the president by the resolution of March 5, 1898; and the resolution itself was within the powers of the board. (Hawley v. Gray Bros. etc. Co., 106 Cal. 337; Civ. Code, sec. 2319; Morawetz on Corporations, sec. 538; McKiernan v.Lenzen, 56 Cal. 61.)

With regard to the point — which seems to have been urged in the court below — that under section 4 of article IV of the by-laws, the signature of the secretary was necessary to give validity to the note, it will be sufficient to say that the provision in question does not require the secretary to sign all notes and obligations, but simply that notes or obligations "signed officially by the president and secretary shall be binding on the corporation"; and that precisely the same point was involved in Hawley v. Gray Bros. etc. Co., supra, and fully discussed in the briefs.

3. The court erred in holding that the note is not the note of the corporation defendant. It has undoubtedly been held that a note with no mention of a corporation, or other principal, in the body of it, and merely signed "John Do, president," or "agent," or even "president" of a named corporation, is not a note of the corporation or other principal. Such was the case in Hobson v.Hassett, 76 Cal. 203,⁵ and Chamberlain v. Pacific etc. Co.,54 Cal. 103, cited by respondent. But within the principle announced and the authorities cited in Hobson v. Hassett, supra, the note in the case at bar would clearly be the note of the corporation. In the Chamberlain case the form of the obligation in the body of the note was "I promise to pay," and there was one signature, which was "D.P. Sackett, president" of the named corporation. In the case at bar the form of the obligation is "we or either of us promise," and the note is signed, first "Annie Kline Rikert, Pres. Stockton and Tuolumne Co. R.R. Co.," and then below "Annie Kline Rikert personally." This clearly shows that the first signature was for the corporation, and the second for herself personally; and having power to bind the corporation, the note, as signed, is a clear, intentional and legally sufficient exercise of that power. The case is similar to that of Farmers'etc. Bank v. Colby, 64 Cal. 352, where the note was signed "G.A. Colby, Prest. Pac. Peat Coal Co.," and "D.K. Tripp, Sec., pro tem.," and was "indorsed" by said Colby and some other persons; and the court said: "Read as a whole, we think it apparent from its face that it is the note of the company indorsed by the individuals," and that "promissory notes, like other instruments, must be given that effect which accords with the obvious intent of the parties to them." It is not always necessary that the name of the principal shall be signed with the statement following "by the" agent, although that is no doubt the best form. In Jones v. Clark, 42 Cal. 180, the form of the note was "for and on behalf of the Dardenelles Mining Company I promise to pay," and it was signed "William Rufus Longley, superintendent for the company"; and the court said: "There can be no doubt that it is binding on the partnership, provided that Longley had authority to execute it." In Southern Pac. Co. v. VonSchmidt Dredge Co., 118 Cal. 368 — where the signature of the president was held to bind the company, in a case not nearly as strong as the one at bar — there is an elaborate discussion of the subject and a citation of many authorities. (See Story on Agency, 9th ed., sec. 154; 1 Parsons on Notes and Bills, 90 et seq.)

The judgment appealed from is, as to the defendant corporation, reversed, and a new trial ordered.

Hearing in Bank denied.

⁵ 9 Am. St. Rep. 193.