164 N.E. 108 | NY | 1928
Plaintiff, a national bank, is the owner through indorsement of a promissory note signed "J. G. Lippmann, L.J. Lippmann, Pres." It asks for judgment in the alternative (Civ. Prac. Act, § 213) against the corporation, the maker of the note, or against the president personally if, in signing the note in behalf of the corporation, he acted without authority. We are to determine whether a cause of action is stated against the individual defendant.
At common law, the remedy against an agent signing a note without authority was not upon the note itself, but for breach of an implied warranty (White v. Madison,
The draftsman of the statute, Mr. Crawford, holds the view that the effect of this provision is to make an agent liable on the instrument if he has signed without authority (Crawford's Annotated Negotiable Instruments Law [4th ed.], p. 52). A like view has been expressed by the Commissioners on Uniform Laws, Mr. Eaton, Judge Brewster, and Mr. McKeehan, defending the rule against an assault upon its policy (Brannon's Negotiable Instruments Law [4th ed.], p. 163; Eaton, The Negotiable Instruments Law, 2 Mich. Law Rev. 260, 265, 272, 273; *310
Brewster, A Defense of the Negotiable Instruments Law, 10 Yale L.J. 84, 90; Brewster, The Negotiable Instr. L., 15 Harv. L. Rev. 26, 27, 28; McKeehan, The Negotiable Instruments Law, 41 Am. Law Reg. [N.S.] 437, 462), and by commentators of great distinction dissenting in some instances as to policy, but concurring as to meaning (Ames, The Negotiable Instruments Law, 14 Harv. L. Rev. 241, 247; 16 Harv. L. Rev. 255, 256; Williston, Contracts, vol. 2, p. 2122; Chafee, Brannon's Neg. Instr. Law, supra). There are decisions and dicta to the same effect (Pain v. Holtcamp,
We think the proviso that the agent or representative shall not be liable on the instrument "if he was duly authorized" to sign, carries with it a fair implication that he shall be so liable if not authorized. The proviso does not appear in the corresponding section of the British Bills of Exchange Act. It was inserted after debate and reflection (Eaton, Brewster, McKeehan, supra), and was meant to accomplish something. We think the end in view was nothing less than we have stated. Before the statute was adopted, all manner of subtle distinctions had to be drawn before one could say where liability would rest (Brannon, supra; Mechem, Agency, vol. 1, §§ 1122, 1123). Many forms of signature indicating an intention to sign as agent for a designated principal were held to charge the agent personally. The hardship was mitigated by resort to extrinsic evidence when the controversy was one between the original parties to the paper, but not when the paper was in the hands of a holder in due course. Thus, a note bearing the name of a corporation in the margin, but signed by the president and treasurer in *311
their own names with the addition of their official titles, and thereafter discounted by a bank without notice dehors the instrument, was in law their individual promise (Casco Nat.Bank v. Clark,
The statute, as we read it, sweeps these subtleties away. Whenever the form of the paper is such as fairly to indicate to the eye of common sense that the maker signs as agent or in a representative capacity, he is relieved of personal liability if duly authorized (Jump v. Sparling,
An able argument has been made to us for a narrower reading of the statute. We do not underrate its force. A choice is necessary between alternative constructions, neither of which is certain. We think the balance of persuasiveness inclines to the choice made. One other consideration of policy and convenience should be added to the scales. Courts of respectable authority have held that a right of action against an agent for breach of an implied warranty does not pass with the note unless specifically assigned (Miller v. Reynolds, 92 Hun, 400). If the agent, signing without authority, is not liable on the instrument, there might thus be a failure of justice when a note wrongfully issued was in the hands of later holders. No doubt a remedy in tort would be available to such a holder if the agent had so misrepresented his authority as to be guilty of a fraud (Polhill v. Walter, 3 B. Ad. 114; White v. Madison,
Other situations suggested by way of illustration in the arguments of counsel are stated only to exclude them from the scope of our decision.
The question is not here whether the agent is to be held upon the instrument when the lack of authority, though unknown to him, was known to the holder. We assume without deciding that he may sign without recourse. Conceivably a like exemption may be attained in other ways (cf. Mechem, § 1369; Halbot v. Lens, L.R. 1901, 1 Ch. 344, 349).
The question also is not here whether the holder of the note who takes it in the belief that he is obtaining the obligation of the principal, may hold the agent for breach of warranty instead of suing on the instrument if he prefers the former remedy. The rule seems to have been well settled at common law that a remedy on the instrument where the agent had misrepresented his authority would in no event displace the cause of action for damages, but, if recognized at all, would be held to be concurrent (White v. Madison, supra, at pp. 124, 125;Dusenbury v. Ellis, 3 Johns. Cas. 70). Injustice might result if it were held to be exclusive. *314
Nothing in our present ruling is opposed to what was held inMegowan v. Peterson (
The order should be affirmed with costs, and the question certified answered "yes."
POUND, CRANE, ANDREWS, LEHMAN, KELLOGG and O'BRIEN, JJ., concur.
Order affirmed, etc.