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If a corporation, certainly authorized to make, sign, accept, or indorse negotiable paper, has an officer authorized to use their name in this way, and this officer writes his own name, as drawer of a bill of exchange, with the express addition of
ants' corporate name did not appear on the notes, and the notes on their face did not disclose any agency, Horace Gray & Company, the signers, and not the defendants, were bound thereby; but that this was not to be understood to prevent the plaintiff' from maintaining his action, if the jury should be satisfied that the notes were in fact the notes of the Boston Iron Company, executed under a name adopted and sanctioned by them as indicative of their contracts It was held, that this instruction was correct. Shaw, C. J. said: "The effect of the instruction thus given, we think, was, that the facts mentioned in the prayer for instructions, to wit, the corporate name not appearing on the notes, and the notes not disclosing any agency, but signed Horace Gray & Company, constituted prima facie evidence that those were the notes of Horace Gray & Com pany and not of the Boston Iron Company; and, standing alone, would warrant and require the direction, that Horace Gray & Company, and not the Boston Iron Company, were bound by them; but that this evidence might be rebutted and controlled by proof aliunde that they were in fact the notes of the Boston Iron Company, because executed under a name adopted and sanctioned by them as indicative of their contracts, and, it may be added, given in satisfaction of their debt. The court are of opinion that this direction was correct. If by any possible proof the presumption arising from the face of the note, and from the form of the execution, from the corporate name of the company not being used, and the use of the name of a mercantile firm, could be rebutted, then the evidence was prima facie, and not conclusive. It seems to be now well settled, in this Commonwealth, since the great multiplication of corporations, extending to almost all the concerns of business, that trading corporations, whose dealings embrace all transactions from the largest to the minutest, and affect almost every individual in the community, are affected like private persons with obligations arising from implications of law, and from equitable duties which imply obligation; with constructive notice, implied assent, tacit acquiescence, ratifications from acts and from silence, and from their acting upon contracts made by those professing to be their agents; and, generally, by those legal and equitable considerations which affect the rights of natural persons. We are not dealing here with the weight, force, or effect of the evidence, but only whether any evidence aliunde could control the presumption arising from the notes; and we think there was evidence competent to go to the jury, from which they might infer that the defendants had so adopted a name, other than their corporate name, for the special purpose of giving notes, as to be bound by it when used by a general agent, in liquidation of their own debts. . . . . Under this same objection, also, the question was discussed, whether a corporation can adopt the name of a mercantile firm, and bind themselves by notes given in its name. It may not be a wise arrangement, but we are not prepared to say they cannot do it. Suppose the case, which actually occurred, as appears in the case of Goddard v. Pratt, 16 Pick. 412, that a manufacturing corporation pass a vote or by-law, providing that all their mercantile business shall be done and contracts made in the name of a partnership, whose stock they have taken, and to whose business they have succeeded. This may be wise in such a case, in order to keep up an established, extensive, and valuable correspondence, and retain the run of custom and good-will, of an old, established firm. That case was the reverse of the present, and the struggle there was to charge the firm, who defended on the ground that their firm name designated the obligations of the company, and not their own; and 'he case
his office, it seems that he will be held to do this officially, and not personally, and to bind the corporation and not himself. (a) And a bill drawn upon and accepted by him in the same way, will be held to have been drawn upon and accepted by the corporation.(b)
Any signature of a corporation should always be by writing the name of the corporation, and adding, "by A. B., agent," or "treasurer," &c. And the body of the instrument should contain the name of the corporation only. But it is very common to find a note running "I, A. B., Treasurer of -Company, promise," &c., and signed "A. B., Treasurer of Company"; and a note actually of the corporation, if made and signed in this way, should, we think, be held in law to be their note. (c)
turned on the question, whether the plaintiff, when he dealt with them, knew of the dissolution of the old firm; if he did not, then, by a well-known rule of the law of partnership, the firm was bound to him, not having given notice of their dissolution. Had the point in that case been whether the corporation were bound, we can have no doubt that they would have been held bound by their vote for notes made in the name desig nated." And see, to the same effect, Conro v. Port Henry Iron Co., 12 Barb. 27, 55. See also, ante, p. 92, note g.
(a) Thus, in Witte v. Derby Fishing Co., 2 Conn. 260, a bill was drawn by the president of the company, containing a direction to the drawee to place the amount "to account of the Derby Fishing Company," and signed "Canfield Gillet, President." Held, that the company were liable as drawers. So in Safford v. Wyckoff, 1 Hill, 11, 4 Hill, 442, it was held, that a bill of exchange commencing, "Farmers' Bank of Seneca County," directing the drawee, after payment, to charge this institution," and signed "J. J. Fenton, Cashier," was to be deemed the act of the bank. But in Kean v. Davis, 1 N. J. 683, where a bill of exchange directed the drawee to charge as ordered," and was signed "John Kean, President E. & S. R. R. Co.," it was held, that Kean was, prima facie, personally liable as drawer.
(b) In Shelton v. Darling, 2 Conn. 435, the bill was directed to "Noyes Darling, Esq., Agent of the Commission Company," and was accepted" Noyes Darling, Agent C. C." Held, that it was the acceptance of the company, and not of Darling. So in Farmers' and Mechanics' Bank ». Troy City Bank, 1 Doug. Mich. 457, it was held, that a bill of exchange directed to "John A. Welles, Cashier Farmers' and Mechanics' Bank of Michigan," and accepted by writing across the face thereof, "Accepted, John A. Welles, Cashier," was drawn upon and accepted by the bank, and not by Welles in his individual capacity. In Moss v. Livingston, 4 Comst. 208, a bill was drawn on, and accepted by "J. R. L., President of the Rosendale Manufacturing Co." That company was a corporation, and J. R. L. was the president; but there was no proof that he was authorized to bind the company by his acceptance. Held, that an action on the acceptance was properly brought against J. R. L. individually. See ante, p. 97, note o. (c) Mann v. Chandler, 9 Mass. 335. But see Barker v. Mechanic Fire Ins. Co., 3 Wend. 94; Brockway v. Allen, 17 Wend. 40; Hills v. Bannister, 8 Cowen, 31; M'Clure v. Bennett, 1 Blackf. 189; Mears v. Graham, 8 Blackf. 143; Cleaveland v. Stewart, 3 Ga. 283.
If the note begins, "The President and Directors of pany promise," &c., and is signed "A. B., President," or "Secretary," or "Cashier," or "Treasurer," or "Agent," it is undoubtedly the note of the corporation. (d) In fact bank-bills are universally signed in this way. It has been said, that if a note be in this form, "I, John Franklin, President of the Mechanic Fire Insurance Company, promise," &c., (Signed) "John Franklin"; or in this form, "I promise to pay," &c., (Signed) "John Franklin, President of the Mechanic Fire Insurance Company"; that in both of these cases it is the nove of Franklin, and not of the Company.(e) But we doubt the correctness of these positions. There can be no reasonable doubt, in either of the above cases, that the intention was to bind the company, and not the president personally.(ƒ)
If a bill or note is made payable to "A. B., Cashier," we have authority for saying that an action may be maintained upon it, either by A. B. personally, (g) or by the bank of which he is cashier, if the paper was actually made and received on account of the bank. (h) And where a promissory note was made payable "to the Cashier of the Commercial Bank or his order," and the consideration proceeded from the bank, it was held, that an action on the note might be maintained in the name of the bank as the promisee.(i) A note or bill made
(d) Mott v. Hicks, 1 Cowen, 513; Pitman v. Kintner, 5 Blackf. 250; Commercial Bank v. Newport Man. Co., 1 B. Mon. 13; Shotwell v. M'Kown, 2 South. 828. In Fitch. Lawton, 6 How. Miss. 371, the note was in the following form: POST NOTE.
"Commercial Bank of Rodney, Rodney, Miss., 8 March, 1839. Worthington or order one hundred interest until due.
Thomas Freeland, Pres't."
Held, that prima facie it was binding upon Freeland and Lawton individually. Sed
(e) Per Savage, C. J., in Barker v. Mechanic Fire Ins. Co., 3 Wend. 94.
(f) See Lindus v. Melrose, 3 H & N. 177; Aggs v. Nicholson, 1 H. & N. 165; Healey v. Story, 3 Exch. 3; Penkivil v. Connell, 5 Exch. 381.
(g) Fairfield v. Adams, 16 Pick. 381; Shaw v. Stone, 1 Cush. 228, 254.
(h) Watervliet Bank v. White, 1 Denio, 608; Barney v. Newcomb, 9 Cush 46; Dupont v. Mount Pleasant Ferry Co, 9 Rich. 255; Wright v. Boyd, 3 Barb. 523. (i) Commercial Bank v. French, 21 Pick. 486. Morton, J. said: "The note is in terms payable to the cashier of the Commercial Bank'; and the defendant contends that the action should have been brought in the name of the person who was then cashier, and will not lie in the name of the corporation. It is not denied that the prop
payable to the order of the cashier of a bank authorized by its charter to indorse, is as negotiable as if payable to the order of the bank.(j)
If a bill or note belonging to a bank be indorsed "A. B., Cashier," there may be some doubt whether this alone will be sufficient to pass the property in the note; and still more would it be doubtful whether it would render the bank liable as indorser. But it has been satisfactorily established that the holder may fill up such an indorsement so that it will read "The President and Directors of Bank, by A. B., Cashier.(k) We have already seen that such an indorsement will
A contract may And where the par
erty of the note is, and ever has been, in the plaintiffs; but the argument is, that the promise being in the name of the cashier, although made to him in trust, and for the benefit of the corporation, it can only be enforced in his name. be made to or with a person, as well by description as by name. ties can be ascertained, it will be valid, although their names be mistaken or their description be incorrect. It cannot be doubted that a note to the Commercial Bank would be valid, and might be declared on as a promise to the plaintiffs, although their legal name is, 'The President, Directors, and Company of the Commercial Bank.' So a contract with the stockholders, or with the president and directors, or with the directors of the Commercial Bank, would doubtless be, in its legal effects, a contract with the corporation. It is not easy to perceive why a contract with the cashier of a bank is not a contract with the bank itself. The accounts of banks with each other are usually kept in form with the cashiers, but undoubtedly the banks themselves are the real parties to them. The Master, &c. of Sussex Sidney College v. Davenport, 1 Wilson, 184. A corporation being an incorporeal being, and having no existence but in law, can neither make nor accept contracts, receive nor pay out money, but by the agency of its officers. They are the hands of the corporation by which they execute their contracts, and receive and make payments. Of these officers the cashier is the principal. If the note had been made to the corporation, by its appropriate name, the same officer would have demanded and received payment, or would have given notice of non-payment and protested it, and, had it been negotiated, would have made the indorsement, and in precisely the same form as he would upon this note. . . . The principle is, that the promise must be understood according to the intention of the parties. If in truth it be an undertaking to the corporation, whether a right or a wrong name, whether the name of the corporation or of some of its officers be used, it should be declared on and treated as a promise to the corporation. And there is no so safe criterion as the consideration. If this proceed from the corporation, it raises a very strong presumption that the promise is made to them. If no express promise be made, but it be left to legal implication, it must be to them." And see Medway Cotton Manufactory v. Adams, 10 Mass 360.
(j) Haynes v. Beckman, 6 La. Ann. 224.
(k) Northampton Bank v. Pepoon, 11 Mass. 288; Folger v. Chase, 18 Pick. 63. In the recent case of Bank of Genesee v. Patchin Bank, 3 Kern. 309, where the indorsement was in the same form, and the action was brought against the bank as indorser, Denio, J. said: "I find some difficulty in saying that this indorsement, as it stands, can be held to be the contract of the defendant. But I am of opinion that the defend
not render the cashier personally liable.(7) A person who carries on business on his own account, in the name of a company which has been incorporated but not organized, and receives in payment of a debt contracted with him in such business a promissory note payable to the order of the corporation, may transfer the note by indorsing it in his own name.(m)
It is doubtful whether the president, secretary, treasurer, cashier, or any other officer of a corporation, has prima facie a general authority to bind the corporation as a party to bills
ant should be held liable as indorser upon a different principle, — that of allowing the indorsement to be filled up according to the intention of the parties. In the Northampton Bank v. Pepoon, 11 Mass. 288, the defendant was sued as the maker of a negotiable promissory note, which had been indorsed to and held by the Berkshire Bank; and the question was, as to the transfer by that bank to the plaintiff. The indorsement was by one Learned, an attorney, with full authority from the board of directors; but the form in which it was done was by the attorney writing his own name upon the note, adding, 'as attorney The formal words of a common indorsement appear to have been in the first instance written over the name of the attorney, but the court allowed it to be altered and filled up as an indorsement by the Berkshire Bank, according to the intent. The court, Chief Justice Parker giving the opinion, upon a motion for a new trial, said: We are all satisfied that if the authority of Learned was good to indorse as attorney, the plaintiffs may erase the words written over his name, and substitute other words, which will give effect to the indorsement.' Folger v. Chase, 18 Pick. 63, presented substantially the same question. The plaintiff, in an action against the prior parties to several notes which had been indorsed to, and held by, the Phoenix Bank, made title to the notes by the indorsement of the cashier of that bank made in the same form with that of the bill in question, namely, P. H. Folger, Cashier.' It was held that the plaintiffs were entitled to recover, the court saying: 'As to the objection that the indorsement is not made in the name of the corporation, we think the indorsement by the cashier, in his official capacity, sufficiently shows that the indorsement was made in behalf of the bank; and if that is not sufficiently certain, the plaintiff's have a right now to prefix the name of the corporation.' It will not fail to be remarked, that these actions were not against the bank whose officers had indorsed the paper, but against prior parties; but the question in each case was as to the effect of what had been done towards transferring the paper. This, however, does not affect their application to this case; for if the indorsement operated to transfer the paper upon the principles of the law merchant, it at the same time created by force of the same law the obligation of indorser. If the holder in these cases could write the name of the corporation over the signature of the officer, the contract would then be in the usual form, and would carry with it the ordinary consequences. The principle thus settled by the Supreme Court of Massachusetts carries into effect the intention of the parties to such transactions, is in accordance with legal analogies, by which effect is given to indorsements on negotiable paper by allowing them to be filled up in such manner as to carry out what was de signed, and is not opposed to any case in our own courts. I am disposed to follow it in this case." The point was not decided by the court.
(1) See ante, p. 96, note m.
(m) Bryant v. Eastman, 7 Cush. 111.