President of the Commercial Bank v. French

| Mass. | Mar 11, 1839

Morton J.

delivered the opi lion of the Court. The plaintiffs are the bond fide holders )f the note, for a valuable consideration. The circumstance that they originally received it as collateral security, can have, no effect upon the validity oí the contract or the liability of the parties.

Nor can the character in which the defendant became a party to the note, avail him. It is payable on demand and draws interest from its date. It could not therefore have been the expectation of the parties, that it was to be discounted, or that payment would be immediately demanded. There is no evidence that the defendant has suffered by the delay. It cannot properly be called a prolongation of credit, as no time of payment was fixed. Nothing is better settled, than that the voluntary forbearance to collect, or the mere delay to prosecute upon any kind of security, will not discharge a surety. To produce that effect there must be either a valid agreement not to enforce payment, a denial of a reasonable request, on the part of the surety, to collect, or some fraud or negligence of the obligee or promisee, injurious to the surety. Hunt v Bridgham, 2 Pick. 581 ; Baker v. Briggs, 8 Pick. 123 ; Ludlow v. Simond, 2 Caines’s Cas. 30 ; Pain v. Packard, 13 Johns. R. 174 ; Powell v. Waters, 17 Johns. R. 176 ; King v. Baldwin, 2 Johns. Ch. R. 557 ; Hayes v. Ward, 4 Johns. Ch. R. 129.

But the only objection much relied upon or worthy of much consideration, relates to the form of the action. The note is in terms payable to “ the cashier of the Commercial Bank ; ” and the defendant contends that the action should have been brought in the name of the person who was then cashier and will not lie in the name of the corporation. It is not denied that the property of the note is and ever has been in the plaintiffs ; but the argument is, that the promise being in the name of the cashier, although made to him in trust and for the benefit of the corporation, it can only be enforced in his name.

It is a familiar rule of pleading, that contracts must be declared on according to their legal import and effect, rather than their literal form. 1 Chit. PI. (1st ed.) 299, 302. We should therefore first seek the true import of the contract under consideration. If it be in truth a promise to the individual who was cashier when it was made, and not to the corporation, it is very clear that the plaintiffs cannot maintain this action. For ne alone to whom a promise is made, or in whom its legal interest is vested, can enforce its performance or complain of its breach. Hammond on Parties, 4 ; 1 Chit. Pl. (1st ed.) 3 to 5, and cases there cited ; Allen v. Ayres et al. 3 Pick. 298.

A contract may be made to or with a person, as well by description as by name. And where the parties can be ascertained, it will be valid, although their names be mistaken or their description be incorrect. It cannot be doubted that a note to the Commercial Bank would be valid and might be declared on as a promise to the plaintiffs, although their legal name is, “ The President, Directors and Company of the Commercial Bank.” So a contract with the stockholders, or with the president and directors, or with the directors of the Commercial Bank, would doubtless be, in its legal effects, a contract with the corporation. It is not easy to perceive why a contract with the cashier of a bank is not a contract with the bank itself. The accounts of banks with each other are usually kept in form with the cashiers, but undoubtedly the banks themselves are the real parties to them. The Master &c. of Sussex Sidney College v. Davenport, 1 Wils. 184.

A corporation being an incorporeal being and having no existence but in law, can neither make nor accept contracts, receive nor pay out money, but by the agency of its officers. They are the hands of the corporation by which they execute their contracts, and receive and make payments. Of these officers the cashier is the principal. If the note had been made to the corporation, by its appropriate name, the same officer would have demanded and received payment, or would have given notice of non-payment and protested it, and, had it been negotiated, would have made the indorsement, and in precisely the same form as he would upon this note.

There are several decisions in our own reports, which support this view of the subject, in cases less strong than the present. In the Medway Cotton Manufactory v. Adams et al. 10 Mass. 360" court="Mass." date_filed="1813-10-15" href="https://app.midpage.ai/document/medway-cotton-manufactory-v-adams-6404078?utm_source=webapp" opinion_id="6404078">10 Mass. R. 360, it was decided, that a note payable to Richardson, Metcalf & Co. might well be declared on as a promise to The Medway Cotton Manufactory. In the Taunton and South Boston Turnpike v. Whiting, 10 Mass. 327" court="Mass." date_filed="1813-10-15" href="https://app.midpage.ai/document/taunton--south-boston-turnpike-corp-v-whiting-6404071?utm_source=webapp" opinion_id="6404071">10 Mass. R. 327, it was holden, that the promise, in a subscription paper, to pay the assessments which should be made on certain shares, to John Gilmore or order, would support an action in the name of the corporation. And in Gilmore v. Pope, 5 Mass. 491" court="Mass." date_filed="1809-10-15" href="https://app.midpage.ai/document/gilmore-v-pope-6403439?utm_source=webapp" opinion_id="6403439">5 Mass. R. 491, it was directly decided, that an action would not he upon the same subscription in the name of Gilmore, but must be brought by the corporation. Piggott v. Thompson, 3 Bos. & Pul. 147.

The principle is, that the promise must be understood accordr ing to the intention of the parties. If in truth it be an undertaking to the corporation, whether a right or a wrong name, whether the name of the corporation or of some of its officers be used, it should be declared on and treated as a promise to the corporation. And there is no so safe criterion as the consideration. If this proceed from the corporation, it raises a very strong presumption that the promise is made to them. If no express promise be made, but it be left to legal implication, t must be to them.

Some later cases have the appearance of clashing a little with the two last above cited. But probably they may be reconciled by a reference to the different nature of the promises declared on and the different state of the facts. In Fisher v. Ellis, 3 Pick. 322, it was decided that a note payable to the treasurer of a parish, though given for the funds of the parish, might well be sued in the name of the treasurer. And in Fairfield v. Adams, 16 Pick. 381, it was holden, that a note indorsed to S. S. Fairfield, cashier, would sustain an action in the name of Fairfield. See also Little v. O'Brien, 9 Mass. 423" court="Mass." date_filed="1812-11-15" href="https://app.midpage.ai/document/little-v-obrien-6403955?utm_source=webapp" opinion_id="6403955">9 Mass. R. 423 ; Brigham v. Marean, 7 Pick. 40. Great favor and indulgence is always shown to negotiable securities. The above cases seem to show, that upon such paper, when made in the name of an agent or officer, though the beneficial interest be in the corporation, they may be sued by him. But they do not show that an action might not also be maintained in the name of the corporation. The contrary is plainly intimated in Fisher v. Ellis. It has been the practice to sue towns on notes given by their treasurers. Many such actions have been brought and maintained. See Precedents of Declarations, 111. If a note given by the treasurer of a corporation, is the contract of the corporation, we can see no sound reason why a note given to the treasurer should not be an available promise to the corporation.

There is an obvious and broad distinction between the case at bar and those of Fisher v. Ellis and Fairfield v. Adams. Had the note been made to the cashier, by name, the addition of “ cashier of the Commercial Bank,” might have been considered' as descriptio personae, used to designate as between him and the bank the relation he bore to it in the transaction, and the individual might have been deemed the promisee as in those cases. But such was not the fact, and we discover no valid objection to the plaintiffs’ recovery.

Judgment on the verdict.