185 Iowa 1 | Iowa | 1918
Lead Opinion
I. The signature to the promise to pay was in the following form:
“Trustees of the Second Christian Church.
“I. S. Ervin,
“R. C. Moulton, Chairman,
“M. L. Everett.”
Before considering what is the liability, where one signs, say, John Smith, Trustee, it may well be said to be doubtful whether the individual signatures make claim to a trustee relation to anyone. Nothing indicates such a’claim on part of Ervin, unless it may be inferred from mere juxtaposition — from the fact that his signature appears immediately .following “Trustees of the Second Christian Church.” In the line following the Ervin signature, Moul
Moulton uses the .descriptive word “Chairman.” So doing is as much support for arguing that he intended no description other than “Chairman,” as for the argument that one who finds the signature “Trustees of the Second Christian Church” in the first line, I. S. Ervin, without-more, in the second line, and then signs himself, and adds “Chairman,” intended to assert that he was a trustee of said church.
Everett is the last signer, and uses no words of description. “Trustees of the Second Christian Church” is the first line; I. S. Ervin, without any descriptive words, the second line; B.'C. Moulton, with -the descriptive word “Chairman,” the third line. Why does- the fact that Everett signed last of all, without words of description,, with these things preceding his signature, make any evidence that he asserted himself to be'one of the trustees of said church?
II. But this may all be passed as not controlling. And it may be assumed, for the sake of argument, .that the signatures are, in effect, what they would be if they were in • the following form: •
Will such signature .avoid personal-liability? It may be granted there is much judicial conflict on
2-a
As said, it is universally agreed that these signers were bound, unless a principal was disclosed. Let us test whether there was sufficient disclosure, by the case law.
In Schumacher v. Doland, 154 Iowa 207, Eenihan, who followed his signature by “Pastor of St. Francis Church,” was held to have given a personal obligation. Why is “Pastor of St. Francis Church” less a disclosure of a principal than “Trustees of the Second Christian Church?”
In Heffner v. Brownell, 70 Iowa 591, the signatures were:
“Independence Mfg. Co.
“B. I. Brownell, President.
“D. B. Sanford, Secy.”
It was held this did not show Brownell signed as president of the Manufacturing Company, and was, therefore, personally bound. Why does not writing B. I. Brownell, President, in the line next to Independence Manufacturing Company, prove Brownell signed as president of the com
III. Cases in our reports that may be urged for the proposition that here was a sufficient disclosure of a principal have, on analysis, no application, because their examination discloses that in them there was a sufficient disclosure. For instance, in Baker v. Chambles, 4 G. Greene 428, the promise was, “We, the undersigned, Directors of School District No. 4, Montpelier Township, promise to pay,” and then signed their individual names. In the same situation is Lyon v. Adamson, 7 Iowa 509, 510. In Harvey v. Irvine, 11 Iowa 82, the note read, “We, or either of us, promise to pay * * * for value received of him in behalf of School District No. 6,” and the signature was,
In Wheelock v. Winslow, 15 Iowa 464, the signature was, “For the Dubuque Times Co., Ferd S. Winslow, Treasurer.” In Turner v. Potter, 56 Iowa 251, it was, “Burlington & Southwestern Railway Co., Y. K. Moore, A. Tr.” Note, Moore does not sign as assistant treasurer of this railroad, or as the representative of anything. The first signature is that of the corporation itself, and the description of Moore is a statement of who affixed the signature of the corporation. In the case at bar, no signature of the church corporation appears. In Exchange Bank v. Schultz, 167 Iowa 136, the signature was, “Glendell Dairy Company, by Henry O. Harstad, President; J. E. Schultz.” It is held that Schultz is personally bound, because the evidence does not justify reforming the note to show that he signed for the Dairy Company.
The signature in Liebscher v. Kraus, 74 Wis. 387, exhibits differences from the one at bar that have already been adverted to. It is, “San Pedro Mining & Milling Company, F. Kraus, President.” Kraus was released; but it is again to be noted, the signature is that of the corporation. The case would be a parallel one, had the signature been, ^President of the San Pedro Mining & Milling Company, C. F. Kraus,” and Kraus been released.
All that Capital Sav. B. & T. Co. v. Swan, 100 Iowa 718, decides, is that, where the promise is signed, “Merchants Loan & Trust Company, Sioux City, Iowa, by W. E. Higman, President, F. C. Swan, Sec’y and Treas.,” such signature suffices to put a purchaser of the note on inquiry as to whether the secretary intended to bind himself personally.
We are of opinion that the face of the note in suit did not disclose to the plaintiff who the claimed principal of the signers is, and that, upon the face of the instrument, the
Note, too, that Shope merely advised the plaintiff that the “church people wanted $600,” which is no more a disclosure of who the principal is than the note affords. Note, further, Shope added there would be four or five good men on the note, which justifies a fact finding that he thus led the plaintiff to believe that the individual names finally appearing on the note were a fulfillment of that promise.
In our opinion, the cause must be reversed. It is done, and the trial court directed to give plaintiff judgment on the note sued on, against the defendants Ervin, Moulton, and Everett. — Reversed.
Dissenting Opinion
(dissenting). I dissent.- To make clear the reasons which impel me to withhold my concurrence, it is necessary to state the facts with some degree of fullness. The majority, in its opinion, touches upon these only in a fragmentary way, and reaches its conclusion very largely from a technical discussion of the mere form of the signatures appended to the note sued upon.
It is shown without serious dispute that, prior to the making of the note, certain persons holding to a common religious faith, and residing in Des Moines, organized and incorporated a society, not for pecuniary profit, under the name of “The Second Christian Church.” This incorporated society entered upon the project of erecting a house of worship. When the building was nearing completion, it was found that the fund collected for that purpose was insufficient to cover all the expenses; and, .as the contributing members were not able or not willing to increase their subscriptions, the matter of borrowing the needed money was proposed. The plaintiff was a resident of the city, and, for a period of ten years or more, had been lending money
That the defendants did not know or understand or believe that the note so made was anything more than the note of the corporation which they officially represented, is established with as much certainty as is humanly possible, in matters pertaining to mental operations. That Shope, plaintiff’s agent in the transaction, so understood, and that he himself formulated the note, to give it the effect of a corporate obligation, and not the personal obligation of the trustees, is equally clear.
With the foregoing statement in mind, we are now prepared to consider the questions raided by the appeal. In doing so, it must be borne in mind that this case involves no charge of fraud or deceit on the part of defendants, or either of them. .The questions presented by this appeal are:
I. Does the form of the note, as executed, import upon its face a personal obligation of the trustees ?
It máy be conceded at the outset that there is probably no other controversy arising in ordinary business transactions concerning which there is such dire confusion and numberless inconsistencies in the adjudicated cases. The Supreme Court of the United States, referring to what it calls. the “vast conflict,” or “anarchy of the authorities,” on this subject, says it is “not easy to lay down any general rule which would be in harmony with all of them.” Falk v. Moebs, 127 U. S. 597; The result of this condition
Now, the case at bar is between the original parties! The note was given to plaintiff, and she is still its owner and holder; and I shall not, therefore, discuss the rule which has been applied where the suit is brought by a subsequent purchaser, except to give point to the proposition that what has been recognized as a good defense to a note in the hands' of an assignee or indorsee is assuredly good as against the original holder.
Cases in plenty may.be found in which it has been held that, if a note be so written as to import the signer’s unqualified promise to pay, the mere fact that he adds the words “agent” or “trustee” or “president” or “secretary” to
According to the weight of authority, as well as under the provisions of our Negotiable Instruments Act, if a plaintiff sue upon a note which the defendant has signed with the word “agent,” or other word indicating a representative character, but without anything to indicate his principal or other person for whom he professes to act, the
“It is contended, on behalf of the plaintiffs, that his [defendant’s] representative character must be disclosed upon the face of the note. This may be so, in so far as innocent purchasers for value are concerned; but, as to the payees named in the note, we think a different rule prevails. * * * We do not understand that the statute * * * was designed to change the common-law rule in this regard, which is to the effect that, as between the original parties and those having notice of the facts relied upon as constituting a defense, the consideration and the conditions under which the note was delivered may be shown.”
The same rule is approved in Wanner v. Emanuel’s Church, 174 Pa. 466 (34 Atl. 188), where it is said that:
“The fact that a note is so executed by an agent as not to disclose his principal, and, therefore, to make it prima facie his individual note, * * * does not, rights of parties misled by such appearance being out of the way, .preclude proof that it was intended to bind, and .was in reality the note of, the principal; for parol evidence is admissible, in case of doubt, to show that the corporation, and not its agent, was to be bound.”
The Minnesota court has frequently held that:
“Where a party signs a contract, affixing to his signature the term ‘agent/ ‘trustee/ or the like, it is prima, facie his individual contract, the term affixed being presumptively merely descriptive of his person; but that extrinsic evidence is admissible to show that the words were understood as determining the character in which he contracted.” Souhegan Nat. Bank v. Boardman, 46 Minn. 293 (48 N. W. 1116) ; Pratt v. Beaupre, 13 Minn. 187 (Gil. 177) ; Rowell v. Oleson, 32 Minn. 290 (20 N. W. 227) ; Peterson v. Homan, 44 Minn. 166 (46 N. W. 303).
The same rule has been followed by practically every court in the United States, including this court, — though not always consistently. The following are illustrative examples: Reeve v. First Nat. Bank, 54 N. J. L. 208; Haile v. Peirce, 32 Md. 327; Bean v. Pioneer Mining Co., 66 Cal. 451; Mechanics’ Bank v. Bank, 5 Wheaton (U. S.) 336; Second Nat. Bank v. Midland Steel Co., 155 Ind. 581 (58 N. E. 833) ; Keidan v. Winegar, 95 Mich. 430 (54 N. W. 901) ; Benham v. Smith, 53 Kan. 495 (36 Pac. 997) ; Kline v. Bank, 50 Kan. 91; English & S. Am. M. & I. Co. v. Globe L. & T. Co., 70 Neb. 435 (97 N. W. 612) ; Haskell v. Cornish, 13 Cal. 45; Janes v. Citizens Bank, 9 Okla. 546; Swarts v. Cohen, 11 Ind. App. 20 (38 N. E. 536) ; Bank v. Gay, 63 Mo. 33; Ohio & M. R. Co. v. Middleton, 20 Ill. 629, 636. Citations to the same effect could be continued quite indefinitely. The sum , and substance of the rule is well summed up in Mr. Abbott’s Trial Evidence, page 46, as follows :
“If, upon the face of the instrument, there are indications suggestive of agency, — such as the addition of words of office or agency to the signature, or the imprint of the corporate title on the paper, — parol evidence is competent
This court has held it competent for the signer of a note, as against the payee, to show that the instrument, though in form a note, was intended as a mere receipt (Hausbrandt v. Hofler, 117 Iowa 108) ; that a written indorsement importing liability as an indorser may be shown to have been intended as an indorsement without recourse (Stafford v. Fetters, 55 Iowa 484). It has been at least-five times held by us, in comparatively recent years, that, even if, upon the face of the note, it appears that corporate officers signing it might otherwise be held liable, it was competent for them to show that they acted only in a representative capacity, without assuming personal liability, and that the writing would be reformed to give effect to the defense. Lee & Jamieson v. Percival, 85 Iowa 639; Western W. Scraper Co. v. Stickleman, 122 Iowa 396; Capital Sav. Bank & T. Co. v. Swan, 100 Iowa 718, 722. Hanna v. Wright, 116 Iowa 275, 277; Lacy v. Dubuque Lbr. Co., 43 Iowa 510.
II. But, to sustain the defense in this case, it is not necessary to go to the extent of liberality shown in most of the many precedents to which we have referred; for the note here sued upon comes clearly within the scope of the section above cited from the Negotiable Instruments Act, providing that the agent, trustee, or officer is exempted from personal liability, when the identity of his principal is revealed, either in the body of tlie note or in the form of his signature. No person of ordinary intelligence can read the signature of this note, and doubt for a moment that these men were acting in an official or representative capacity for the “Second Christian Church,” and sought to express that fact. To say that, in thus executing the note, they made use of these terms simply as a matter of personal description or designation, is nothing better than solemn pretense, which
“Such words are most commonly used with signatures to indicate an official act, and there is nothing in the note in suit which makes the words in question at all necessary, or even appropriate, ■ to indicate mere personal liability. Words of a like character are so frequently used with a signature to designate an official act, and are so rarely used in that manner for any other purpose, that, when they are attached to a signature, they are well calculated to suggest that the signature was intended to be official, and not merely to describe the signer.” Capital Sav. Bk. & T. Co. v. Swan, 100 Iowa 718, 723.
This rule is also approved by much the greater weight of authority. Says the Indiana court:
“In the usual course of business in this country, the addition of a title or description of any kind' is not customary, — indeed, it may be said that' such addition or description is never appended, — when men sign their names to contracts by which they intend to bind themselves in their own proper persons, and not as the representatives of another. Again, it is to be observed that such additions and descriptions, as ‘president,’ ‘secretary,’ ‘treasurer,’ ‘trustee,’ ‘agent,’ and the like, plainly import a relation to some other person, as a principal, distinct from the person signing the instrument. * * * It is not at all usual for a person executing a note, or other contract, to add words descriptive of himself, or to refer to his relation to other persons, whether natural or artificial, who have no connection with the transaction; and when he designates his representative capacity, to assume that such designation was intended merely
To the same point, see Mr. Freeman’s note to Greenberg v. Whitcomb Lbr. Co., 90 Wis. 225 (48 Am. St. 919). This court has made practical application of the same principle in Baker v. Ohambles, 4 (I. Greene 428, where we say that:
“If the name of the principal and the relation of agency be stated, in the writing, and the agent is authorized * * * the principal alone is bound, unless the intention is clearly expressed to bind the agent personally.”
This rule was followed in Harkins v. Edwards, 1 Iowa 426; Lyon v. Adamson, 7 Iowa 509; Harvey v. Irvine, 11 Iowa 82; Wheelock v. Winslow, 15 Iowa 464; Lacy v. Dubuque Lbr. Co., 43 Iowa 510; Western W. Scraper Co. v. Stickleman, 122 Iowa 396. Of these cases, Lacy v. Dubuque Lbr. Co., which is wholly ignored by the majority, is an instructive example. The note in that case made no express reference to the lumber company, except in the date line at the top, which reads:
“Office of the Dubuque Lumber Company, Dubuque. September 9, 1874.”
This is followed by a promissory note, in ordinary form, “I promise to pay,” etc., and signed “M. H. Moore P. D. L. Co.” This we held to be the note of the company, saying:
“We think the noté on its face shows that it is the obli
If, then, a name in the date line, and the letters “P. D. L. Co.,” be held sufficient to indicate the representative character of the signer, and the principal for whom he acts, it seems little less than childish to say that a note subscribed by the “Trustees of the Second Christian Church,” followed by their names, including the chairman of the board, gives no indication of the representative character of such signers, or of the corporation they represent; or to say that the personal obligation of the signers is so clearly expressed that oral evidence in explanation thereof will not be considered. The Massachusetts court has said that the courts will always “lay hold of any indication on the face of the paper to enable them to carry out the intention of the parties” (Carpenter v. Farnsworth, 106 Mass. 561, 562) ; but the opinion of the majority herein indicates that this court commits itself to the contrary policy, which regards the intention of the parties as a matter of very slight moment. As bearing out to its fullest extent the principle underlying Lacy v. Lumber Co., and other precedents mentioned in connection therewith, I further cite Field on Corporations, Section 198; Mechem on Agency, Section 443; Brockway v. Allen, 17 Wend. (N. Y.) 40; 4 Thompson on Corporations, Section 5141 et seq.; Sayre v. Nichols, 7 Cal. 535; Hardy v. Pilcher, 57 Miss. 18; New England Elec. Co. v. Shook, 27 Colo. App. 30 (145 Pac. 1002) ; Johnson v. Smith, 21 Conn. 626, 627. In the last mentioned case, the note was signed by the “vestrymen”
III. Turning now to the cases cited by the majority, I freely admit that some of them — notably Heffner v. Brownell, 70 Iowa 591 — go to the full extent of holding that an agent or corporate officer, even where the name of the corporation or principal is expressly indicated in the signature to the note, is conclusively to be held liable in a suit charging him as a maker of the instrument. I also admit that, for a time, this court seemed to follow the precedent so established; but I further contend that, until the majority opinion in this case was adopted, we had, for a period of fourteen years, definitely receded from that position, and put ourselves in line with the current of modern authority, which holds either that a note in such form is to be held, as a matter of law, the obligation of the principal, and not of the agent (Falk v. Moebs, 127 U. S. 597 [32 L. Ed. 266]), or that the matter is open to explanation by extrinsic evidence (Lacy v. Lumber Co. supra), or, at the worst, that the instrument will be reformed to admit the defense (Western W. Scraper Co. v. Stickleman, 122 Iowa 396). The check in the reactionary tendency of Heffner v. Brownell and its following was first felt in Matthews & Co. v. Dubuque Mattress Co., 87 Iowa 246. There, although the majority of the court felt itself bound by the authority of the Heffner case, it eased its apparent repugnance to a rule so unreasonable by pointing out that, under the authority of Lee & Jamieson v. Percival, 85 Iowa 639, defendant had a way of escape therefrom, by asking a reformation of the writing. Justices Kinne and Granger united in a very vigorous dissent, pointing out the inherent unsoundness of the rule, and showing, by a very convincing array of the authorities, that, as between the original parties, it is always admissible to show that the parties, in máking and
“Some of our cases sustain plaintiff’s contention, but the court as now constituted has grave doubts of the correctness of those decisions.”
Two years later, it arose once more in Western W. Scraper Co. v. Stickleman, 122 Iowa 396, where, in substance and form, the note sued upon is entirely similar to the one now in controversy. It is a note in ordinary form, in which it is said, “We promise to pay,” and is signed:
Trustees:
J. M. Stickleman
Joseph Litsch.”
The defendant having pleaded the understanding of the parties that no personal liability was assumed by them in giving the note, and asking that the note be reformed accordingly the trial court found for the plaintiff. On appeal, this court reversed the decree below, and, speaking unanimously, by McOlain, J., said:
“We think it doubtful whether these notes on the face import individual liability of the defendants. It is true that, in several cases [citing Mathews v. Dubuque M. Co., and others, by way of example], we have held that instruments similar to those now before us conclusively import personal liability of the signers, and that, in an action at law, the intention that the instrument should bind the corporation
There the subject was allowed to rest, apparently finally settled for this jurisdiction, for a period of fourteen years, until the adoption of the majority opinion in this case. Meanwhile, the courts of at least three states, — Wisconsin, Indiana and Nebraska, — have definitely refused to recognize the authority of our Heffner v. Brownell; and with our own condemnation of it in Hanna v. Wright and Scraper Co. v. Stickleman, it ought to have been permitted to rest in its grave. Neither Schumacher v. Dolan, 154 Iowa 207, nor Exchange Bank v. Schultz, 167 Iowa 136, is in any manner inconsistent with the position I have taken.
IV. To recapitulate, the following propositions of fact are all shown, without substantial dispute:
1. The man Shope was, and for years had been, the plaintiff’s agent, through whom she made loans of money; and he was not in any sense of the word an agent for the defendants.
2. The Second Christian Church, by its board of trustees, applied to said agent to obtain a loan, on the distinct understanding that such loan was being asked for upon the credit of the corporation.
3. With that notice, plaintiff, through her agent, furnished the money, and the agent prepared the note in the form in which it is sued upon, and assured the trustees that, in legal forcé and effect, it was a “church note,” or
4. The money borrowed was obtained for the use and benefit of the corporation alone, and was not in any manner or degree received or applied to the personal use, benefit, or advantage of the defendants.
5. With this knowledge and notice, plaintiff took the note, collected the interest from the church corporation, and in the end, brought suit against said corporation and obtained judgment against it for the full amount of the note remaining unpaid, and a fraction of the amount so adjudicated in her favor has been collected.
Concerning the law applicable to the proved and admitted facts, I contend:
1. That the note in the form in which it is made and signed brings it easily within the provisions of the Negotiable Instruments law, to which I have adverted, by which the person signing a note as agent or trustee is chargeable with no personal liability, if, in either the note or signature, there may be found “words indicating” that he signs for or on behalf of a principal, or “in a representative capacity.”
2. That, if any doubt arise in any mind upon this point, there can be none upon the further proposition that enough does appear to bring the case within the rule admitting extrinsic evidence of the intention of the parties, as has been held in at least a dozen of our own cases, above cited, and in, a myriad other precedents from other states.
3. That, in any event, if it be thought that the form of the note does not disclose the representative character of the defendants’ signatures, a perfect case has been made for a reformation of the instrument.
4. That the claim of the defense is clearly established, as a matter of law.
Y. There is another defense pleaded, which the majority pass with the merest touch, as not entitled to serious
The universal rule is : . (1) That, if A deals with B, knowing him to be acting as agent for C, a contract so made is, .in law, a contract between A and C, and B is chargeable with no personal liability, if he acts within his authority as agent; and (2) that, if A is not aware of B’s representative character, and deals with him in reliance upon his personal credit or responsibility, but later discov-. ers that he acted, in fact, for C, then A may maintain action upon such contract against either B or C, but he cannot recover against both. From this, it follows of necessity, under the familiar rule as to election of remedies, that if, knowing the truth as to the representative character of the person with whom he has dealt, A sues C as the real principal, and prosecutes his suit to judgment, he waives or abandons his right of action against B. McLean v. Ficke, 94 Iowa 283, 292; Keene Five Cents Sav. Bk. v. Archer, 109 Iowa 419; Codd Co. v. Parker, 97 Md. 319 (55 Atl. 623) ; Fowler v. Bowery Sav. Bank, 113 N. Y. 450 (21 N. E. 172) ; Lage v. Weinstein, 35 Misc. Rep. 298 (71 N. Y. Supp. 744) ; Pennsylvania Cas. Co. v. Washington P. C. Co., 63 Wash. 689 (116 Pac. 284); McDonald v. New World L. Ins. Co., 76 Wash. 488 (136 Pac. 702); Landers v. Foster, 34 Wash. 674; First T. & S. Bank v. Bloodworth, (Okla.) 174 Pac. 545; Booth v. Barron, 29 App. Div. 66 (51 N. Y. Supp. 391) ; Aimen v. Hardin, 60 Ind. 119; Anderson v. English, 105 App. Div. 400 (94 N. Y. Supp. 200) ; Rounsaville v. Insurance Co., 138 N. C. 191; 31 Cyc. 1578; Remmel v. Townsend, 83 Hun (N. Y.) 353; Kingsley v. Davis, 104 Mass.
“He has the right of election as to which of them he will hold responsible; but, having once made an election, he is bound by it.”
In perhaps a majority of the precedents, it is held that, if the creditor having such election brings an action upon his claim against either the principal or agent, the election is complete and irrevocable, and relieves the other from all liability. In some jurisdictions, however, it is held that the mere bringing of an action is not a finality upon that question, and the right of election is not necessarily exhausted until the claim against one of them has been prosecuted to judgment. Such seems to be the view of this court in some of its decisions. But see Courtney v. Courtney, 149 Iowa 645, 647, 648; Theusen v. Bryan, 113 Iowa 496; Steele Smith G. Co. v. Potthast, 109 Iowa 413; McLean v. Ficke, 94 Iowa 283.
The only suggestion the majority makes in regard to this defense is to say that, if the defendants cannot be held personally liable because of their alleged failure to make their agency or representative character clear in the language of the note or in the manner and form of the signatures thereto, they can still be held as sureties of the church which the opinion concedes was the real borrower. It is a sufficient answer to this proposition to say that, except in this language of the majority, there is not in the record, from beginning to end, an allegation or claim or assertion or word of proof that the defendants or either of them ever undertook to become surety on the note. The evidence clearly disproves such an intent. So far as appears in the record, no surety was asked for, and none offered. The point made by the majority in this respect finds no justifi
VI. . I confess to no little difficulty in obtaining a clear understanding of what the majority opinion is really intended to hold. It indulges in much comparison of the mere form of the signatures of this note and those of many other notes with which the courts have had to deal, and then states its conclusion to be that “the face of the note in suit did not disclose to the plaintiff who the claimed principal of the signers is, and that, upon the face of the instrument, the signers Ervin, Moulton, and Everett were personally bound.” In reaching this conclusion, the Heffner case is again given leading place in the discussion. It is then said that plaintiff had no notice that defendants were signing the note in a representative capacity. To do this, it was, of course, necessary to avoid the legal presumption of notice derived through her agent, Shope; and this is done by saying that Shope was also agent for the defendants. This statement is not justified by the record. Shope was, and long had been, the admitted agent of the plaintiff for the loaning of her money. If the church ■ or its trustees, knowing that fact, applied to him for such a loan, it did not make him their agent.- Had they gone to any bank in the city to procure a loan, the fact that they procured it through the aid or by the hand of the bank’s president or cashier, would not make such officer their agent, in any sense of the word. Not only is the presumption of notice to the plaintiff conclusive, but every act on her part shows,
Finally, the majority, speaking of the admissibility of parol evidence to show the representative character of the signer of a note, and to point out the real principal intended to be bound thereby, say:
“It is possibly true that such evidence is admissible as between these parties, and that Megowan v. Peterson, 173 N. Y. 1, states the law, if limited to such proof as stops short of varying by parol what is affirmatively expressed in the writing.”
Now, if the tendency and bearing of the opinion as a whole were in harmony with that expression, this dissent, so far as the law is concerned, would not have been written; for with that rule as a settled and admitted proposition, the final conclusion reached by the majority would have been impossible. If it be true- (as I think it is) that the rule of the Megowan case is sound, and parol evidence is admissible, as between these original parties, why is it that the majority, over and over again, put to the front the case of Heffner v. Brownell, which confessedly turns upon the theory that parol evidence is wholly inadmissible? Why are this and other cases of that kind collated and pressed upon our minds as controlling authority, with never a word of mention of our decisions which discredit them, and hold that, as between the original parties, or as against any holder with notice, it is a good defense to plead and prove
Although this dissent has been protracted to a tedious length, I am not disposed to offer any apology for it. The importance of the principle involved is • out of all proportion to the mere amount of money concerned in its decision. The maintenance of a reasonable degree of consistency in our opinions is highly desirable. It is even more desirable, when inconsistencies arise, and it becomes necessary for us to choose between opposing theories or rules of law, that we adhere to the one which appeals most strongly to our inherent sense of right, and is best calculated to promote equal and exact justice between man and man. There is no more just rule of law or of morals than this: That contracts and agreements fairly entered into shall be interpreted and enforced according to the actual meaning and intent of the parties. It is a rule which cannot be ignored or violated, without disregard to the. basic principles of justice and of right, which- underlie all law, and without which courts and court proceedings become engines of oppression. In my judgment, the majority opinion is clearly open to this objection. The judgment below ought to be affirmed.