12 S.D. 570 | S.D. | 1900
Plaintiff, as receiver of the original payee, seeks to hold defendant Elliott personally liable upon the following guaranty,'indorsed on two promissory notes, executed to the American Banking & Trust Company by the Granite City Manufacturing Company: “For value received, we hereby guaranty the payment of the-within note at maturity, or at any time thereafter, with interest at the rate of 8 per cent, per annum until paid, waiving demand, notice of nonpayment, and protest. [Signed] J. A. Cooley. G. H. Marsh. B. R. Cooley. E. J. Elliott, Pt.” Defendant admits, in his answer, that he signed the guaranties, “but alleges that he signed the same in the capacity and character of president of the Dell Rapids Bank, and in no other character or capacity whatsoever; that this defendant was the president of the Dell Rapids Bank, at the time of the execution of said guaranties, and that this defendant never at any time or in any manner received any consideration for said guaranties in his individual capacity; that, at the time of the signing and delivery of said guaranties, the owner and holder of said notes had actual knowledge that this defendant did not sign the said guaranties in his individual capacity, but only signed arid executed the same as the president of the Dell Rapids Bank as aforesaid, and in his capacity
Plaintiff contends the answer does not state facts sufficient to constitute a defense (1) because parol evidence cannot be received to release defendant, and (2) because it fails to allege that defeudaut was authorized by his principal to execute the guaranties, and that his principal had power to execute them. Publishing House v. Murdick, 4 S. D. 207, 56 N. W. 120, 21 L. R. A. 671, is cited in support of the first contention. That case is distinguishable from the one at bar. There the parties signed as individuals, and “the agreement constituting the basis of the action showed upon its face that it was the individual contract of the defendants.” Here the name of defendant Elliott is followed by the letters “Pt.” an abbreviation not usually affixed to signatures, and the meaning of which cannot be ascertained without the aid of parol evidence. It suggests a doubt as to the party bound, and the court cannot determine the question alone by an inspection of the instruments, “As between the original parties, parol evidence that does not tend to contradict the terms of a written instrument is admissible to show the true intent and meaning of the persons entering into the same, when there is something on the face of the instrument that suggests a doubt as to the parties bound, and the court cannot by inspection determine the question from the
It certainly cannot be inferred, from the mere fact that defendant was president of the Dell Rapids Bank;, that such bank was a corporation, clothed with power to guaranty negotiable paper for the accomodation of another corporation, and that its president was authorized to discharge the unusual duty of executing such guaranties. The facts stated in the answer are not sufficient, if true, to release defendant Elliott from personal liability. It was shown upon the trial that the Dell Rapids Bank was and is a banking corporation, organized and existing under the laws of this state; that it was a stockholder in the Granite City Manufacturing Company; that the signers of the guaranties, other than Elliott, were stockholders in the Granite Company, of which he was secretary; that when the guaranties were executed W. W. Bolster was president of the payee in the guarantied notes, and also a stockholder in the Dell Rapids Bank; that these notes were renewals of two former notes, executed by the same maker and guarantied in the same manner; and that Bolster acted for the American Banking & Trust Company in all these transactions. As to the understanding of the parties respecting the capacity in which Elliott