No. 16458. | La. Ct. App. | Nov 4, 1936
Lead Opinion
There was judgment below in plaintiff's favor for $1,368, and defendant has appealed.
On the trial of the case, it was shown that Morlet had acquired the notes for a valuable consideration from E.C. Toussel, the payee, and that the father of E.C. Toussel, G.A. Toussel, acted as agent for E.C. Toussel in the transaction and indorsed the name "E.C. Toussel" on the back of the notes for his son.
It appears that E.C. Toussel was engaged in the contracting business in New Orleans; that he had made a contract to erect a building for the defendant; and that the promissory notes were executed by the defendant, to the order of E.C. Toussel in payment of the work to be performed by him under the building contract. The evidence also shows that G.A. Toussel, the father of E.C. Toussel, was in the habit of managing his son's affairs and had been given verbal authority by E.C. Toussel to sign checks, drafts, and other papers on behalf of his son.
E.C. Toussel testified that he had given his father the authority to endorse the notes in question to the plaintiff, and his father, G.A. Toussel, testified that he had such authority. At the time the father indorsed the notes, the son was not present.
The plaintiff testified that he knew both the father and the son and was aware of the fact that the father had signed the son's name on the back of the notes.
When the defendant sought to introduce proof, in an attempt to establish her defense concerning failure of consideration, an objection by counsel for plaintiff, to such evidence on the ground that plaintiff was a holder in due course before maturity, was sustained by the trial judge.
The question here presented for our determination is whether or not the indorsement of the name "E.C. Toussel" by G.A. Toussel is a valid indorsement.
Counsel for the defendant asserts that this indorsement was invalid and had the effect of being a constructive forgery because, under article
Moreover, article 2997, in so far as it affects negotiable instruments, was repealed in 1904, when the Legislature passed the Uniform Negotiable Instruments Law, being Act No. 64 of that year.
Section 19 of that act provides:
"The signature of any party may be made by a duly authorized agent.
"No particular form of appointment is necessary for thispurpose; and the authority of the agent may be established as inother cases of agency." (Italics ours.)
It will be seen from the foregoing that whether or not the agent has the authority to sign the principal's name to a negotiable instrument is purely one of fact. In this case, the proof is overwhelming that E. C. Toussel trusted his father implicitly, and had given his father authority to sign checks or other negotiable instruments for him.
But the defendant takes the position that the writing of the words "E.C. Toussel" on the back of the notes herein sued on, without any language of designation showing that the party who wrote the words "E.C. Toussel" acted in a representative capacity, amounted to no indorsement at all. In other words, it is claimed that, in order for an agent to validly indorse a negotiable instrument, indorsement must be made in his capacity as agent and not in the name of the principal. We see no merit in this contention.
It is said, however, that the authorities are to the effect that, where the signature of the principal is affixed to the instrument by some other person, in order to make such signature valid, the person whose name is being signed must be present. The cases of Vidrine v. Deshotels et al.,
Our analysis of the foregoing cases convinces us that the Supreme Court did not hold that it was necessary that the party, whose name is affixed to a document by an agent, need be present at the time of the affixation. The court, on the contrary, held in the latter case that the authority to execute, indorse, or transfer a negotiable instrument need not be in writing, but may be conferred by parol, although the authority is not to be lightly inferred but must be clearly shown. The fact that the principal is present is strong evidence that he authorized the party making his signature to sign, but his presence is not a prerequisite in determining whether the agent possessed the authority to make the signature. Some of the authorities, notably Corpus Juris, v. 58, p. 727, provide that, where a signature is made for a person by the hand of another acting in his presence, such mode of signing is sufficient because the person writing the name is regarded as a mere instrumentality for the person whose signature is affixed and not as the agent. However, in the same volume on page 728, it is said: "A signature may also be made through an authorized agent."
It is to be observed in this case that the maker of the note is complaining that the indorsement is not valid. E.C. Toussel readily admits that his father had authority to sign his name to the instrument; the father corroborates this testimony. The plaintiff concedes that he knew the father and son and knew that the father was signing the son's name. Undoubtedly, the son had the right to transfer the notes before maturity and he did exercise this privilege by discounting them with the plaintiff who was in good faith and paid a valuable consideration for the same. It is true that he acted through an agent, but that fact cannot be used by the defendant to resist the demand of the plaintiff as a holder in due course, in the absence of fraud, or a showing that the plaintiff had actual notice of any infirmity in the instrument *395 or defect in the title of the person negotiating it.
In finding the plaintiff to be a holder in due course, it follows that any equities existing between the defendant and E.C. Toussel are not available as a defense in this suit.
For the reasons assigned, the judgment appealed from is affirmed.
Affirmed.
Dissenting Opinion
In my opinion plaintiff in this case is not a holder in due course for the reason that the notes were not indorsed by the payee, what purports to be his signature having been placed on the back of the notes by the hand of another in his absence and without his knowledge or consent, though afterwards ratified by him when testifying as a witness on the trial of the case. The fact that the payee's signature was written by his father, in whom the son had every confidence as a manager of his business and who had been given a sort of blanket authority to act for him in such matters, might be said to be sufficient to support the actions of the father in a representative capacity, but, in view of the fact that the authority was neither express nor special, some difficulty is encountered. Article 2997, R.C.C. There is, however, no question of agency involved, since the signature of E.C. Toussel was not made in a representative capacity. According to the overwhelming weight of authority here and abroad, one who affixed the signature of another to a negotiable instrument does so as an amanuensis and as the instrumentality of the party whose signature he places upon the instrument, but not in the capacity as an agent, the signature being regarded as having been made by the party himself.
"The rule is well settled both in England and in the United States that an act done by a person in the presence of another and by his direction or with his consent, as the signing or execution of a sealed instrument, for example, is not regarded as the act of an agent, but is the direct act of the person by whose direction it is done. Smith v. Dowling, 89 So. 315" court="Fla." date_filed="1921-06-06" href="https://app.midpage.ai/document/smith-v-dowling-4920645?utm_source=webapp" opinion_id="4920645">89 So. 315,
"A signature may also be made for a person by the hand of another acting in his presence, and at his direction, request, or acquiescence, unless a statute provides otherwise, and has the same validity as though written by the person himself. Such mode of signing is sufficient for a sealed instrument, although the party affixing the signature does not have authority to do so under seal. When a signature is made in this manner the person writing the name is regarded as a mere instrumentality, by which the party whose signature is written exercises his own discretion and acts for himself, and not as an agent." Corpus Juris, vol. 58, p. 727, Verbo Signatures.
See, also, Hall v. Misenheimer,
In this case the payee's father wrote his son's name on the back of the notes in the evident belief that a general authorization to conduct his son's business warranted such action. In my opinion, such an indorsement was not the act of the son and insufficient to endow the transferee with the preferred status of a holder in due course, particularly since the transferee knew both the father and the son and was aware that the signature which purported to be that of the son was executed by the father out of the presence of his son and with no special authority.
Section 52 of Act No.
"A holder in due course is a holder who has taken the instrument under the following conditions:
"1. That it is complete and regular upon its face;
"2. That he became the holder of it before it was overdue, and without notice that it had been previously dishonored, if such was the fact;
"3. That he took it in good faith and for value;
"4. That at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it."
Section 49 of the same statute provides:
"Where the holder of an instrument payable to his order transfers it for value without indorsing it, the transfer vests *396 in the transferee such title as the transferer had therein, and the transferee acquires, in addition, the right to have the indorsement of the transferer. But for the purposes of determining whether the transferee is a holder in due course, the negotiation takes effect as of the time when the indorsement is actually made."
The ratification of the father's action by the son on the witness stand is effective as of the date of the ratification, but it cannot prevent the maker of the note from presenting such defense as he might have as against the original payee in this suit. Corpus Juris, vol. 8, p. 338; Tiffany on the Law of Principal and Agent, p. 54; Cook v. Tullis, 18 Wall. 332, 21 L. Ed. 933.
For the reasons stated, I respectfully dissent.