Nunnemacher v. Poss, 116 Wis. 444

Nunnemacher v. Poss

116 Wis. 444 | Wis. | 1903

Mabshalu, J.

It must be conceded that if tbe note sued on is free from ambiguity, it must be taken, without tbe aid of rules for judicial construction, as indicating tbe capacity *448in which appellants signed it. It seems to admit, reasonably,, of bnt one meaning, viz.: that the individuals signed their names, as well as that of the corporation, to the paper as promisors. The language, “The Gymnastic Association of the North Side of Milwaukee, and we the undersigned promise to pay,” seems to leave no room for reasonable controversy but that the name of the company was signed to the note in conjunction with such individuals, not merely by them as-agents. The words, “we the undersigned,” refer unmistakably to persons other than the corporation. There are no parties aside from it, to which, by any method of reasoning, the-words can be said to point, except appellants. The authorities relied on by appellants’ counsel to support their contention that there is an explainable ambiguity in the note do not. seem to be in point. In Liebscher v. Kraus, 74 Wis. 387, 43 N. W. 166, the language of the note was “we promise to-pay,” no one being named in the body of the-paper and it being signed thus:

“San Pedro Mining and Milling Company.

“E. Kraus, President.”

The court held that there was. nothing in the instrument indicating that there was more than one promisor, there being-but one signer, and it being quite common to use the plural “we” in referring to an incorporated company, though that is not strictly correct.

Counsel direct our attention to Draper v. Mass. S. H. Co. 5 Allen, 338; Miller v. Roach, 150 Mass. 140, 22 N. E. 634; Gleason v. Sanitary M. S. Co. 93 Me. 544, 45 Atl. 825; Atkins v. Brown, 59 Me. 90; and Farmers’ & M. Bank v. Colby, 64 Cal. 352, 28 Pac. 118, in each of which cases the plural “we” was used, but not conjunctively with some other person or persons. It was used in a manner clearly indicating that it referred to the promisor signing the paper. Neither of those cases, nor any other to which our attention has been called, justifies the contention that the note before us can *449reasonably be read as tbe obligation of the corporation only. Many cases similar to those mentioned can readily be cited, but none can be found, we venture to say, where two persons named as promisors, conjunctively, in the body of a note, have been satisfied by one in the signature, both persons having signed the paper, because, in form, one signed as agent of the other. No authority of that kind has been found by the attorneys upon either side of this appeal, and we have been no more successful in that field than they. Probably Healey v. Story, 3 Exeh. 3, is quite as much in point as any case that can be referred to. In the body of the note were these words: “We jointly and severally promise to pay,” etc., “on behalf of The Wesleyan Newspaper Association.” It was signed by two persons, with the official title of “Directors.” In many cases where the note had similar features, omitting the words “jointly and severally,” it was held to be the obligation of the corporation only. Simpson v. Garland, 16 Me. 203; Jefts v. York, 4 Cush. 371; Jones v. Clark, 42 Cal. 180; Haskell v. Cornish, 13 Cal. 45; Pearse v. Welborn, 42 Ind. 331; Aggs v. Nicholson, 1 Hurl. & N. 165; Lindus v. Melrose, 3 Hurl. & N. HI. But those significant words were held to unmistakably indicate a personal promise on the part of each of the signers 'of the paper, notwithstanding, in form, they acted for and on behalf of the corporation. That seems to fit the note before us very closely. The naming of the corporation independently of and conjunctively with “we the undersigned,”' cannot be satisfied without reading out of the paper a promise by the corporation and also one by those referred to by the-quoted words.

The motion to vacate the judgment and for leave to amend' the answer of .appellants, setting up an equitable defense, and' for further proceedings upon the amended pleadings, has: been considered. We are unable to perceive any abuse of discretion in denying such motion.

*450By the Court. — Tbe judgment is affirmed and tbe appeal from tbe order is dismissed.

A motion for a rehearing was denied February 3, 1903.