71 Neb. 686 | Neb. | 1904
Plaintiff in error brought suit against the defendants in error npon three promissory notes, all in the following-form:
“$84. Ti-iedfoRD, Nebraska, November 20,1893.
“One year after date we promise to pay to the Western Wheeled Scraper Company, or order, at Thedford Bank of Thedford, Nebraska, eighty-four and no-100 dollars, with interest- at seven per cent, per annum, payable annually, for value received, and if action is commenced hereon, attorney’s fees for collection. (Sign officially.)
“J. M. McMillen,
“G- W. Miller,
“G-. L. Matthews,
“Directors of Thedford Irrigation & Power Go.
“ (limited)."
McMillen and Matthews alone answered. Their answer consists, first, of a general denial. Second, they allege that the notes sued on were executed and delivered to the; plaintiff by, for and on behalf of the Thedford Irrigation & Power Company (limited), a corporation organized under the laws of Nebraska, by their then duly qualified and acting board of directors, of whom the defendants were at that time members, and were signed by them in their official capacity, and for the purchase of a grading-machine bought of the plaintiff for the use and benefit of the Thedford Irrigation & Power Company (limited); that the defendants never had or claimed any interest in said machine except as members and stockholders of said irrigation company, and that the consideration for said notes moved from said Western Wheeled Scraper Company to the said Thedford Irrigation & Power Company (limited), and that the plaintiff had always so considered and treated said notes; that defendants never received any value for said notes except as members of said corporation, and have
The court, in its seventh instruction,' told the jury:
“You are further instructed that if you should believe from a preponderance, of all the evidence in this case that the three notes set out in plaintiffs petition were made and executed by the Thedford Irrigation & Power Company (limited), and if said notes were signed by said defendants with the intention and understanding to bind the Thed-ford Irrigation & Power Company (limited), and not the signers of said notes as individuals, and if you should find from a preponderance of all the evidence that it was so understood by and between the agent of plaintiff and these defendants, at the time said notes were executed and delivered, then your verdict should be for the defendants, ‘No cause of action.’ ”
The jury returned a verdict for the defendants, and the plaintiff has brought the record to this court for review.
The petition in error, among other matters, alleges “that the court erred in permitting the defendants to in
“The modern doctrine seems to be that, where individuals subscribe their proper names to a promissory note, they become prima facie liable personally upon the same, although they add a description of the character in which the note is given; but such presumption of liability may be rebutted by proof that the note was in fact given by the makers as agents of a corporation, for a debt of the corporation, due to the payee, and that they were lawfully authorized to make such note as agents of the corporation; and such facts may be pleaded in bar of the action against the makers personally, averring knowledge on the part of the payee.” He states further: “It is no objection to such a defense that the name of the corporation is not correctly stated in the description attached to the signature; it is enough if it appear that the makers did not intend to be personally bound. Rut it should be shown that the payee of the note had knowledge, or at least the full means of knowledge, that the makers of the note were promising as agents, duly authorized, of the corporation; for ‘it is well settled that a man, contracting with another, can not shield himself as agent, unless he give notice at the time, that he is so, or it be knoAvn in some other way to the person with whom he deals.’ ”
It is undoubtedly true that the modern cases are more liberal than was formerly the case in allowing one vTho signs a negotiable instrument, designating himself as agent ■or trustee, to show by parol evidence that he was acting
We think this court is now fully committed to the doctrine that in order to exempt an agent from liability upon an instrument executed by him within the scope of his agency, he must not only name his principal, but he must express by some form of words that the writing is the act of the principal, though done by the hand of the agent. If he expresses this, the principal is bound and the agent is not; but a mere description of the general relation or office which the person signing the paper holds to another person or to a corporation, without indicating that the particular signature is made in the execution of the office and agency, is not sufficient to charge the principal, or to exempt the agent from personal liability. There wa.s evidence which would fully support a finding that, in executing these notes, the defendants did not intend to bind themselves
We recommend, therefore, that the case be reversed and remanded to the district court, with directions to allow the defendants to amend their answer if they so elect, otherwise to enter judgment for the plaintiff for the amount due upon the notes.
By the Court: For the reasons stated in the foregoing opinion, the judgment is reversed and the cause remanded to the district court, with direction's to allow the defendants to amend their answer if they so elect, otherwise to enter judgment for the plaintiff for the amount due upon the notes.
REVERSED.