1 Doug. 457 | Mich. | 1844
delivered the opinion of the Court.
The questions arising upon the record will be considered in the order in which they were presented to the Court, in the argument of the counsel for the plaintiffs in error.
1. It is alleged as ground of error, that there is no authority in the record from the plaintiffs below, authorizing the institution or prosecution of this suit.
Anciently, attorneys were appointed orally in court, but were afterwards appointed out of court by warrant. It would seem, however, from an examination of the ancient authorities, that the “ default of a warrant of attorney was error.” 1 Com. Dig. 574 But, for avoiding error, it is sufficient if the warrant be entered before judgment, or before writ of error brought. Id. 747. It was
2. The second error assigned is, that the plaintiffs below did not prove themselves a corporation by legal and sufficient evidence. Inasmuch as the act incorporating them does not appear in the record in this case, it is impossible to say whether the proof was sufficient or not. The ground relied upon by the plaintiffs in error, in argument, was, that a corporation created by a statute, which requires certain acts to be done before it can be considered in esse, must show such acts to have been done, in order to establish its existence; and, hence, that the plaintiffs were
$. The third error assigned, is, that the bills of exchange declared upon were illegal and void, having been issued in contravention of the safety fund act, which declares that no monied corporation subject to it “ shall issue any bill or note of said corporation, unless the same shall be made payable on demand and without interest.” S. L. 1836, 165, §31. It was admitted on the argument, and appears by the record, that the Bank of Homer was a banking institution organized under the general banking law of this state, and subject to the safety fund act. The importance of this question was appreciated by counsel on both sides, and it was fully and ably argued. But a difficulty is here interposed, not known to counsel at the
It being settled that the Bank of Homer was not a monied corporation, and of consequence not subject to the provisions of the safety fund act, a question of great difficulty and importance might now arise, viz: whether the bills of exchange declared upon could be treated as legal and valid, and a suit be maintained upon them. The magnitude of the interests involved in the decision of such a question, would preclude us from expressing an opinion upon it, until counsel be heard, and time taken for careful and deliberate examination. If the judgment of the Court in the present case depended upon the decision of that question, we should reserve it for argument. As it is, we shall withhold the expression of any opinion upon it.
4. The fourth error assigned is, that the bills declared on are the acceptances of John A. Welles, and not of the President, Dkectors and Company of the Farmers and Mechanics’ Bank of Michigan; and, therefore, that the Court erred in charging the jury that the proper construction of them upon their face was, “that the defendants, [below,] through their agent, John A. Welles, accepted the drafts in question.”
The general rule in cases of contract is, that an agent, in executing his authority, must “ do it in his name, who gives the authority.” In other words, “to bind the prin
But, before applying this rule to the bills in question, it may not be improper to refer to a few cases decided in England and this country, for the purpose of showing that we do not intend to violate the spirit of the decisions to be found in the English reports, while it will appear that we are clearly within the rule laid down in the American authorities. In the case of Thomas v. Bishop, 2 Strange, 955, the bill was in the following form : “ At thirty days sight, pay to J. S. or order ¿£200, value received of him, and place the same to account of the York Buildings Company, as per advice from Charles Mildmay. To Mr. Humphrey Bishop, cashier of the York Buildings Company, at their house in Winchester street, London. Accepted 13 June, 1732, per H. Bishop.” An action having been brought against the defendant on his acceptance, he proved upon the trial that the letter of advice was addressed to the Company; and that, the bill having been brought to their house, he was ordered to accept it, which he did in the same manner as he had accepted other bills. The jury, however, were directed to find for the plaintiff, which they did accordingly. Upon motion for a new trial, the court held that the direction was right, for the reason that the bill, on its face, imported to be drawn on the defendant, and it was accepted by him generally, and not as
In Leadbitter v. Farrow, 5 Maule & Selw. 345, the bill was as follows: “£50. Hexham, June 8, 1815. Forty days after date, pay to the order of Mr. Thomas Lead-bitter fifty pounds, value received, which place to the account of the Durham Bank, as advised. Messrs. Wetherell, Stokes and others, Bankers, London.” (Signed) “ Christopher Farrow.” An action being brought against Farrow, he was held liable; Lord Ellenborough saying, that it was an universal rule, that a man who puts his name to a bill of exchange, thereby makes himself personally liable, unless he states upon the face of the bill that he subscribes it for another, or by procuration of another. In Barker v. Mechanics’ Fire Insurance Co. of the city of New York, 3 Wend. R. 94, the note was in the following form: “I, John Franklin, President of the Mechanics’ Fire Insurance Co. promise to pay to the order of the Life and Fire Insurance Company, on demand, the sum of $3172.40, with interest, for value rec’d. John Franklin.” It was decided that Franklin was liable, as it was his note and not the note of the company. In Ballou v. Talbot, 16 Mass. R. 461, the note was as follows: “I, the subscriber, treasurer of the Dorchester Turnpike Company, for value rec’d, promise,” &c. and it was signed “ A. B. Treasurer of the Dorchester Turnpike Co.” It was held to be the note of the corporation. In The Mechanics’ Bank of Alexandria v. The Bank of Columbia, 4 Pet. Cond. R. 666, it appears that the defendants in error, brought assumpsit against the plaintiffs in error, on a check in the following form : “ $10,000. Mechanics’ Bank of Alexandria, June 25, 1817. Cashier of the Bank of Columbia, pay to the order .of P. H. Minor, Esq. ten thousand
In the case from 2 Strange, it is to be observed, that the bill was signed by the defendant generally ; and in this particular it differs somewhat from the present case, the acceptance being by “ John A. Welles, Cashier.” It may be said the acceptance by Welles was general, notwithstanding the addition of the word “ Cashier.” But, whether such addition is, or is not, to give character to the instrument, must, I think, be determined from what appeai-s upon the face of the bill, and other circumstances to which I shall presently allude.
In the case from 5 Maulé & Selw. it is difficult to perceive how the drawer could escape from the legal consequences of subscribing his name generally to the bill. The mere circumstance that the amount specified in the bill was directed to be placed to the account of the bank,
It is difficult, if not impossible, to reconcile the decision of the Supreme Court of the United States, in the case of the Bank of Alexandria v. The Bank of Columbia with principles which have been universally acknowledged, or with any adjudged case which has fallen under my observation. The only evidence on the face of the check, from which it might be inferred that it was a bank transaction, is, the circumstance that it purports to have been dated at the Mechanics’ Bank. How the learned judge, who delivered the opinion of the court, could have come to the conclusion, “ that the evidence on the face of the bill predominated in favor of its being a bank transaction,” is to me inconceivable. We cannot recognize this case as authority, without disregarding the uniform course of decisions both in England and in this country. If the evidence received upon the trial was admissible, it might have justified the verdict. But how could evidence be admitted without violating the familiar rule, that matter dehors the instrument, could not be received to change its legal effect ? This must be determined by what appears on the face of it; and I think it too clear for argument, that the chock in question was, upon its face, the individual
But that case differs in many essential particulars from the one before us, as the check was signed generally by Patton, and, according to the view I take of it, contained on its face no evidence of its being the check of the bank.
Let me now test the bills declared upon in the present case by the rule I had occasion to lay down in a former part of this opinion. They are addressed to John A. Welles, Cashier of the Farmers and Mechanics’ Bank of Michigan, and accepted by him, with the addition of the word “ Cashier,” underwritten. It is admitted that the true and best mode was not adopted, to show that the ac-' ceptance was intended to be that of the defendants below. This would have been most efficiently accomplished by signing the name of the bank to the acceptance, with the addition of the words, “ by John A. Welles, Cashier.” But this was not done; and the question to be determined is, whether, from the nature of the contract, and the form of the instrument, it may not, without doing violence to any well established principle of law, be deemed, nevertheless, the acceptance of the bank, and not the individual acceptance of Welles. The_ contract is one known and recognized by the law merchant; it is the acceptance of a bill of exchange. But what is implied by such acceptance ? Clearly a promise by the acceptor to pay the bill at maturity. The acceptor is primarily liable ; he is the principal debtor; and his acceptance is an admission that he has funds in his hands to meet the bill. What, in the next place, is the form of the bill ? It purports to have been drawn by Finch, Cashier of the Bank of Homer, and is addressed to Welles, Cashier of the Farmers and Mechanics’ Bank, by whom it was accepted in the manner already stated. Can it then be fairly inferred that the
No evidence appears to have been adduced on the trial, showing the custom of banks, as to the mode of making themselves parties to negotiable instruments ; and it is not, perhaps, competent for us, without such proof, to take notice of such custom, or to give it any consideration and effect in construing the bills in this case. But, knowing, as we do, that it is the uniform and universal usage of banks in this country, to draw, accept, and endorse bills through their cashiers, and that this is done by the signature of the cashier, with the mere addition to his name of the word “ cashier,” we should have come to a different conclusion, if compelled to do so, with great reluctance; and are glad to find ourselves able, after an examination of the authorities, to give a construction to the bills in this case, consistent with that which instruments so executed universally receive in the commercial world.
It will follow, then, that there was no error by the Court, in charging the jury, “that the defendants, by their agent, John A. Welles, accepted the bills in question.”
6. I now proceed to the consideration of the sixth error assigned. The Court below were asked to instruct the jury, that, “if they believed that the drafts were drawn by the Farmers’ Bank of Homer for their own accommodation, — that Welles accepted them as cashier for the accommodation of the drawers, — that the plaintiffs had
But it was contended by the counsel for the defendants in error, that, admitting the charge to have been erroneous in this respect, yet, if it appear from the whole record in the case, that if the instruction as prayed for had been actually given, the verdict must have been for the plaintiffs below, this Court will not reverse the judgment. It is well settled, that, if an instruction is asked for, which, though pertinent, is immaterial, and could in no respect influence the jury in the decision of the case, the refusal to give the instruction will constitute no ground of error. But, to sustain the views urged by counsel in argument, it must be assumed that the power of a cashier extends to the acceptance of mere accommodation bills. This
I have avoided the consideration of the question raised by the counsel respecting the effect of a recognition by the directors of the acts of Welles in accepting the bills
The judgment of the Court below must, therefore, be reversed, and the cause remanded, &c.
Judgment reversed.