Palmer v. Stephens

| Court for the Trial of Impeachments and Correction of Errors | Oct 15, 1845

By the Court, Beardsley, J.

A person may execute an instrument and bind himslf as effectually by his initials as by writing his name in full. (The Merchants’ Bank v. Spicer, 6 Wend. 443.) Figures or a mark may be used in lieu of the proper name; and where either is substituted by a party, intending thereby to bind himself, the signature is effective to all intents and purposes. (Brown v. The Butchers' and Drovers' Bank, 6 Hill, 443 ; Williamson v. Johnson, 1 Barn. & Cress. 146; Bank v. Flanders, 4 N. Hamp. R. 239, 247, 8.) If the defendant, therefore, by placing his initials under the name of G. Stephens, intended to bind himself as a maker of the note, there can be no doubt of his liability in that character; and this was a point to be considered and decided by the jury.

But the initials might have been written, and so might the full name, to attest the execution of the note by the one who was maker, or to indicate that the one who wrote the initials had, as agent of the person whose name appeared as maker, executed the note for him and in his name. These are supposable cases; but they present questions on which- the jury should have passed. Ordinarily a witness places his name at the left hand side of the instrument he attests, as the one who executes it signs on the right. But, although these are the positions usually and presumptively occupied b'y the maker and the witness, it is not indispensable that their names should be so located. It is always competent, certainly between the original parties, to show that one whose name appears to a note or any other obligation, whatever may be the relative position which the name occupies, placed it there, not as a maker of the instrument, but to attest its execution, or for some other lawful purpose. This is involved in the question of the due execution of the instrument, and where the evidence is conflicting it must be disposed of by the jury.

On its face this purports to be the note of more than one person. The words are we promise, which must be taken to mean two persons at least. It is signed G.-Stephens, which, presumptively, means but a single person, although it may be shown to indicate several, if they think proper to adopt it as their joint name in the transaction of business. Unexplained, however, it indicates but a single individual; and under this name we find the letters W. G. S., which, on proof that they were written by the defendant and are his initials, must be taken to designate his proper name, as fully as if it had been written at full length. Thus, upon the face of this note, and upon such proof as I have mentioned, the defendant would, presumptively, be deemed one of the makers ; nor would this presumption be overcome, or indeed ■ impaired, by the additional fact that the signature, G. Stephens, was also in the hand-writing of the defendant.

But although these presumptions arise on the paper itself and the facts I have adverted to, they may be overthrown by testimony leading to opposite conclusions. . The jury might, if the evidence was found to warrant that result, find that the defendant did not place his initials to the note as maker, but for some other purpose. This question seems not to have been presented to the jury by the judge, as it certainly should have been if evidence to disprove the presumption that the defendant sighed as maker of the note, had been given by him. If no such evidence had been given, the plaintiff was entitled to a verdict on proof that the signatures to the note were written by the defendant, the letters being his initials.

Assuming that evidence exists upon which the jury may. find that the defendant placed his initials under the name of G. Stephens, to indicate that the latter had been written by the defendant and not by G. Stephens himself, another ground remains to be considered on which the plaintiff claims a right to recover against the defendant.

The name G. Stephens was written by the defendant, and he undoubtedly intended to bind some person or persons by that signature. If no one else was bound, as. the plaintiff insists was the fact, the defendant was clearly liable; for if one, assuming to be agent of another person, executes a note in his name, having in truth no authority for that purpose, the assumed agent is himself bound by the signature. (Dusenbury v. Ellis, 3 John. Cas. 70; Rossiter v. Rossiter, 8 Wend. 494; Grafton Bank v. Flanders, 4 N. Hamp. R. 239 ; 2 Cromp. & Mees. 530, note.) In England, a doubt has been expressed whether the assumed agent would be holden as a party to the paper, unless his name appears on it, although an action on the case would lie against him. (Chit. on Bills, 35; Wilson v. Barthrop, 2 Mees. & Welsb. 863; Polhill v. Walter, 3 Barn. & Adol. 114.) But this distinction need not be considered, for here the defendant’s initials, which for this purpose are equivalent to his name, are on this paper.

To exempt the assumed agent from personal liability on the ground stated, it must appear that he was agent at the time when he signed the note or other obligation. A subsequent ratificatiqn of his act would not affect the question. (Rossiter v. Rossiter, supra.)

Upon this part of the case it Avas a simple question of fact, whether the defendant signed the name G. Stephens to the note under competent authority, so that some other person than the defendant Avas bound thereby.

It cannot be pretended upon the evidence in the case, that this Avas the note of Gideon Stephens alone, or Avas intended to be by the defendant. The testimony of Gideon Stephens is decisive to shoAV that the defendant Avas not authorized to give a note for him singly, although fully empowered to sign for the firm of G. Stephens & Sons, and thereby bind Gideon Avith his copartners.

It seems hardly to have been pretended on the trial, and certainly was not on the argument, that this was the note of Gideon Stephens alone. The ground assumed was that it was the note of the firm and bound all its members. It was clearly competent to show that the persons composing the firm of G. Stephens & Sons, had adopted and used the name of G. Stephens, Avithout any addition thereto; for in that event they might be bound by it as they Avould be by the use of the ordinary name of their firm. (Rogers v. Coit, 6 Hill, 322; South Carolina Bank v. Case, 8 Barn. & Cress. 427.) ^(a) The defendant appears to have had authority to make notes for the firm, and consequently to do so in any name they might use for that purpose. If therefore G. Stephens had been assented to and used by the members of the firm, as a proper name to designate themselves in transacting their business, and was used for that purpose by the defendant in this instance, he was clearly not liable for having; signed the name G. Stephens to the note without competent authority. But it was material to show the concurrence of all the members of the firm in the use of this new name to designate and bind themselves, although it might be sufficient for this purpose to show that it had been so used by the partner who was entrusted with the control and management of the business. (Williamson v. Johnson, 1 Barn. & Cress. 146.) In the present case very slight evidence, and nothing more, was given that two of the four copartners were aware that the clerks had occasionally used the name G. Stephens to indicate the firm of G. Stephens &, Sons; but as to the other two, the case furnishes no evidence whatever on this point.

Upon the, charge of the judge, as I read it, the jury were at liberty to find for the defendant, although the firm of G¡ Stephens &. Sons were not bound by the signature G. Stephens. The judge was requested to charge that the jury must find the note to have been executed in the name of the firm, or in other words that it was the note of the firm, before a verdict could be rendered for the defendant. This charge the judge refused to give, and in this I think he erred. The note was, confessedly, not the note of G. Stephens alone; and unless the firm were bound by it, which could only be effected by the use of their name, (Pentz v. Stanton, 10 Wend. 271,) the defendant was clearly liable for having transcended his authority. The true import of the charge may have been misapprehended; but as I understand it, the jury were at liberty to find that this was not the note of any* person. It comes to this conclusion at last; but surely such a principle cannot be upheld. If it was not the note of the party whose name had been placed to it by another person, it was the note of the person who assumed to act as agent.

Much of the testimony offered on the part of the defendant and admitted by the judge was inadmissible, as irrelevant to the questions made, or incompetent in its nature. But without a particular examination of such parts and portions of the evidence as should have been rejected on the grounds stated, the cause must be sent back to another jury, as not having been submitted on such points as were indispensable to its correct determination.

New trial ordered.

(a) See also The Bank of Rochester v. Monteath, (ante, p. 402.)