Roney's Adm'r v. Winter

37 Ala. 277 | Ala. | 1861

R. W. WALKER, J.

The rigid rule of the common law, which requires that a deed, executed by an attorney, for a principal, must be made and executed in the name of the principal, in order to operate as his deed, does not apply to instruments not under seal. — Carter v. Doe d. Chaudron, 21 Ala. 72, 83-7 ; New England Marine Ins. Co. v. Dewolf, 8 Pick. 56 ; Andrews v. Estes, 2 Fairfield, 267 ; Robertson v. Pope, 1 Rich. L. 501; Story Ag. § 148 ; 1 Am. Lead. Cas. (2d ed.) 609.

ifn reference to this latter class of instruments, the rule lis,; that if-the name of the principal appears in the instrument, and it is evident from the writing, as a whole, that the intention was'that the principal, and not the agent, was the person to be bound,the principal alone will be bound, if the agent had authority to make the agreement, although the instrument be signed in the agent’s name only. — Townsend v. Hubbard, 4 Hill, 351, 357; Rathbon v. Budlong, 15 Johns. 1 ; Penty v. Stanton, 10 Wend. 271 ; Bradlee v. Boston Glass Co., 16 Pick. 347 ; Robertson v. Pope, 1 Rich. 501; Abbey v. Chase, 6 Cush. 56; Hicks v. Hurde, 9 Barb. 529.

The principle is thus stated, in Key v. Parnham, 6 Harris & Johns. 418 : — “Whenever, upon the face of an agreement, a party contracting,plainly appears to be acting as the-agent of another, the stipulations of the contract are to be considered as operating solely to bind the principal; unless it manifestly appears, by the terms of the instrument, that the agent intendedrio-superadd or substitute his own responsibility for that of his principal. In such case, and in such case only, if acting-within the scope of his powers, is he personally responsible.”

Applying this principle to "the .present case, it ..is very-clear that the note offered in evidence did not, prima facie, bind Winter personally; and this conclusion is abundantly sustained by numerous decisions, in regard to instruments substantially indentical in form with the note here sued on. Rice v. Gove, 22 Pick. 158; Long v. Colburn, 11 Mass. 97; Robertson v. Pope, 1 Rich. 501 ; Farmers’ & Mechanics’ Bank v. Troy Bank, 1 Dougl. 458; Emerson v. Prov. Hat Man. Co., 12 Mass. 237; Ballou v. Talbot, 16 Mass. 641; Key v. Parnham, 6 Harr. & Johns. 418; Stringfellow & Hobson v. Marriott, 1 Ala. 573; 1 Am. Lead. Cas. 624-7; Rathbon v. Budlong, 15 Johns. 1; 1 Parsons Contr. 48.

As the note, standing by itself, did not import an obligartion on the defendant, and as it was not proposed to introduce any other evidence in connection with it, it was properly excluded.

.Judgment affirmed.