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and not the agent, should be held, this will not generally be suffi cient, either to discharge the agent, or to render the principal liable on the note. (h) But the principal will be liable, under such circumstances, on the original consideration for which the note was given. (i) And there may be cases in which the agent
(h) See 1 Parsons on Cont. 48, note a. This principle was established upon much consideration in the leading case of Stackpole v. Arnold, 11 Mass. 27. That was an action against the defendant as maker of three promissory notes. The notes were signed by another person in his own name, and there was nothing on the face of them to indicate any agency, or that the defendant had any connection with them. At the trial, the person who signed the notes testified that they were given for premiums upon policies of insurance procured by him in the office kept by the plaintiff, at the request and for the use of the defendant, on property belonging to him; and that the witness acted merely as the factor of the defendant, and intended to bind him by the premium notes. The judge instructed the jury, that, "if they believed the notes to have been made and signed for and in behalf of the defendant, their verdict ought to be for the plaintiff." It was held, that the evidence was improperly admitted, and the instruction was erroneous. The same principle was reaffirmed in Bedford Com. Ins. Co. v. Covell, 8 Met. 442, and Taber v. Cannon, 8 Met. 456, though the facts in these cases were not so strong. In Bedford Com. Ins. Co. v Covell, the plaintiffs, on the application of S., who was C.'s agent, caused "S. for C. to be insured on ship G.," and S. gave the plaintiffs a promissory note for the premium, signed by himself alone, without mentioning his agency, and charged the premium in account with C., and had it allowed. S. was afterwards declared bankrupt, and the plaintiffs proved their note as a claim against him, and received a dividend upon it. Held, that the plaintiffs could not maintain an action against C. to recover the balance of the note. In Taber v. Cannon, A, who was authorized, as agent, by the owners of a whale-ship, to fit her for sea and purchase supplies for her voyage, bought the supplies of B; B drew a bill of exchange for the amount of the supplies, payable to his own order, and addressed "to the agent and owners" of the ship. A accepted the bill by writing his name thereon, without any addition indicating his agency. Held, in a suit by an indorsee of the bill against the owners of the ship as acceptors, that, admitting the authority of A to bind them by accepting for them as their agent, yet he had not bound them by the acceptance as made, and that he alone was liable as acceptor. The same rule is well settled in England. Thus, in Thomas v. Bishop, 2 Stra 955, a bill was drawn upon the defendant, as " Cashier of the York Buildings Company." The defendant accepted the bill by simply writing his own name. It was held, that he was liable as acceptor. The court said: “A bill of exchange is a contract by the custom of merchants, and the whole of that contract must appear in writing. Now here is nothing in writing to bind the company, nor can any action be maintained against them upon the bill; for the addition of cashier to the defendant's name is only to denote the person with more certainty." See Shelton v. Darling, 2 Conn. 435, and post, p. 102, note b.
(i) Pentz v. Stanton, 10 Wend. 271; Emerson v. Providence Hat Manuf. Co., 12 Mass. 237; Melledge v. Boston Iron Co., 5 Cush. 158. But where a party, dealing with an agent, takes his promissory note, with a full knowledge of his agency and of the liability of the principal for the debt for which the note is given, he thereby discharges the principal; so that he cannot maintain an action against him for the original debt. Paige v. Stone, 10 Met. 160; Hyde v. Paige, 9 Barb. 150; Ranken v. Deforest, 18 Barb. 143.
would not be personally liable on the bill or note, though there should be nothing on the face of the instrument to indicate the agency. Thus, if an agent, in the execution of his agency, incurs a debt on behalf of his principal, and draws upon his principal a bill for the amount thereof, in favor of the creditor, it has been held, that the agent will not be liable on the bill, if it was the understanding of the parties that he acted as agent merely, and did not intend to make the debt his own. The principal object of drawing the bill, in such case, is to certify to the principal the amount due the creditor; and the agent may, it seems, defend on the ground of a want of consideration.(j) Of course this will not apply to a subsequent bona fide holder without notice. And if an agent draws a bill on a third person in his own name, but there is sufficient on the face of the instrument to inform the drawee that he is to pay the amount on account of the principal, and not on account of the drawer, the drawee, having paid the bill, will not be entitled to maintain an action for money paid against the agent. Thus, where the agent of the owners of a steamboat drew a bill in his own name, and directed the drawee to charge the amount "to account of steamer Walter Scott," it was held that the agency of the drawer was apparent on the face of the bill, in consequence of this direction, which negatived the idea that he was to be personally bound. (k)
It has indeed been held, that whenever it is doubtful from the face of a bill or note whether it was intended to operate as the personal engagement of the party signing it, or to impose an obligation upon some third person as his principal, parol evidence is admissible to show the true nature of the transaction.(1) The
(j) Roberts v. Austin, 5 Whart. 313, 2 Miles, 254; Krumbhaar v. Ludeling, 3 Mart. La. 640; Wolfe v. Jewett, 10 La. 383; Lincoln v. Smith, 11 La. 11. But see Mayhew v. Prince, 11 Mass. 54; Newhall v. Dunlap, 14 Maine, 180; Sowerby v. Butcher, 2 Cromp. & M. 368. In Hicks v. Hinde, 9 Barb. 528, where an agent drew a bill on his principal for a debt due from the principal to the payee, adding the word "agent" to his signature, and the payee knew that the drawer was authorized by his principal to draw the bill as his agent, and it was the understanding of all parties that the drawer signed only as agent, and not with a view of binding himself; it was held, that the drawer was not personally liable on the bill. And see infra, p. 96, note n.
(k) Maher e. Overton, 9 La. 115.
(/) Kean v. Davis, 1 N. J. 683; Lazarus v. Shearer, 2 Ala. 718; Wetumpka, &c. R. Co. v. Bingham, 5 Ala 657; Mechanies' Bank v. Bank of Columbia, 5 Wheat. 326; Owings v. Grubbs, 6 J. J. Marsh. 31; Webb v. Burke, 5 B. Mon. 51; Brockway v. Allen, 17 Wend 40; Early v. Wilkinson, 9 Grat. 68. In the note to Rathbon v. Budlong. Pent
cases, however, which have held this doctrine, are not entirely agreed as to the principle on which it rests, nor do its limits appear to be well defined. Perhaps, as a general rule, it should be received with some distrust.
If an agent make a note in his own name, and add to his signature the word "agent," but there is nothing on the note to
v. Stanton, &c., 1 Am. Lead Cas., p. 453 (p. 606 in the 3d ed.), the rule is stated thus: "Where there is a doubt or ambiguity on the face of the instrument, as to whether the person means to bind himself, or only to give an evidence of debt against an institution or body, of which he is a representative, parol evidence is undoubtedly admissible; not, indeed, to show the intention of the parties to the contract, but to prove extrinsic circumstances by which the respective liability of the principal and agent may be determined; such as to which the consideration passed and credit was given, and whether the agent had authority, and whether it was known to the party that he acted as agent. The extent of the principle as to the admissibility of parol evidence appears to be this: Where the names of both principal and agent appear on the instrument, and the contract, though in the name of the agent, discloses a reference to the business of the principal, so that the instrument, as it stands, is consistent with either view, of its being the engagement of the principal or of the agent, parol evidence is admissible, in a suit against the agent, to charge him, by showing either that credit was given to him, or that he had not authority to bind the principal by that contract, which would create a consideration for a liability on his part, or to discharge him by proving that the consideration passed directly to his principal, as, that credit having been given to the principal alone, the consideration of the note signed by him was an antecedent liability on the part of the principal, and that the other party knew that he acted as agent, and thus destroying all consideration for a liability on his part; and in like manner, to charge or discharge the principal by similar circumstances." Mechanics' Bank v. Bank of Columbia, 5 Wheat. 326. In Eaton v. Bell, 5 B & Ald. 34, where commissioners under an enclosure act drew bills upon their bankers, requiring them to pay the sums therein mentioned on account of the public drainage, and to place the same to their account as commissioners; it was held, that the commissioners were personally liable to their bankers for the amount of the bills. But it seems that it might have been otherwise, if the direction had been to place the same to the account of the enclosure. Bayley, J. said: "The form of the draft is to pay A B or bearer, on account of the public drainage. The persons, therefore, who signed that order, assert that the money is to be applied to the purpose of the public drainage. The draft then goes on, and place the same to our account as commissioners of the enclosure act.' Therefore the money is to be placed to their debit in the account which they have as commissioners. It does not say, 'place the same to the account of the enclosure,' but to our account as commissioners' Now the defendants must have known what they had collected, and what means they had of collecting more; and they ought to have taken care, before they drew drafts, that they had money to reimburse the persons who advanced money on those drafts." In Fuller v. Hooper, 3 Gray, 334, it was held, that a bill of exchange, stamped in the margin, "Pompton Iron Works," and concluding thus, "Which place to account of Pompton Iron Works, W. Burtt, Agent," purported on its face to be the bill of the Pompton Iron Works, and was binding on the person carrying on the manufacture of iron in that name, if Burtt was his authorized agent. And see Tripp v. Swanzey Paper Co., 13 Pick. 291.
indicate who is the principal, the agent will be personally liable, just as if the word agent were not added. (m) It has, however, been held that an indorsement in this form will not render the agent liable as an indorser, because it will be considered as intended only to pass the property in the paper, and therefore as equivalent to an indorsement" without recourse."(n)
(m) Pentz v. Stanton, 10 Wend. 271; Savage v. Rix, 9 N. H. 263; Thurston Mauro, 1 Greene, 231.
(n) Mott v. Hicks, 1 Cowen, 513. Accordingly, in Babcock v. Beman, 1 Kern. 200, where a note was payable to the order of "R. Beman, Treas.," and he, being the treasurer of a corporation with authority as such to receive and transfer the note, in dorsed it, "R. Beman, Treasurer," and delivered it to the plaintiffs, who received it on account of a debt due them from the corporation, with notice of the capacity in which Beman acted; it was held, that he was not individually liable as indorser of the note. Denio, J. said: "The question is, whether this was a qualified indorsement, pass. ing, as it clearly did, the interest in the note, but without any other contract on the part of the defendant. This question was decided against the plaintiffs, in the Supreme Court, more than thirty years ago, and has since been acquiesced in by the profession, and I have no doubt has been extensively acted on by business men. In Mott v. Hicks, 1 Cowen, 513, the only material question was, whether a witness named Houseman was competent to testify, he having been objected to on the ground of interest. He had indorsed a note made by a manufacturing corporation, payable to his order, adding to his name the word agent. His name as payee in the note had no addition annexed to it, but it was proved that the plaintiff was privy to the consideration upon which it was given and indorsed; and that consideration was a debt due from the corporation. If Houseman was personally liable on this indorsement, he was interested, and incompetent as a witness; otherwise he was not. The court held, that it was a qualified indorsement, operating as a transfer of the note, but not containing a contract to pay. Chief Justice Savage dissented, on the ground that it had not been proved, except by Houseman himself, that he was agent of the company, and that the note was payable to him individually. In these two particulars, the situation of this defendant is more favorable than that of Houseman. It has been held, that an indorsement of a note to the cashier of a moneyed corporation, by adding the word cashier to his name in the indorsement, is a transfer to the corporation, where that was the design of the transaction. (Watervliet Bank v. White, 1 Denio, 608.) So this note, before the indorsement, may be considered as having been the property of the manufacturing corporation, it being substantially averred that such was the nature and intent of the transaction upon which it was given. The case of Mott v. Hicks is therefore a direct adjudication upon this very point, by the highest court of original jurisdiction in this State; and it has been acquiesced in and regarded as the law for a great length of time. The question was in the highest degree practical, and of more frequent occurrence than almost any other. It moreover related to commercial paper, in respect to which it is of the utmost importance that the decisions of the courts should be stable, so that they may be relied on with confidence by the community. We should be, therefore, most reluctant to depart from the principle of the case, even could it be successfully questioned as not in harmony with legal analogies or antecedent cases. We think, however, it is not subject to any such criticism. It has been followed in principle in Brockway v. Allen, 17 Wend. 40, and in Hicks . Hinde, 9 Barb. 528
If an agent of an incorporated company make a note, beginning, "I promise," &c., and sign it, "A. B., agent of com pany," it is quite well settled, that the company, not the agent, will be liable on the note. (o) And the same rule applies, a for
and has not been questioned, so far as we know, by any case." And see Collins v. Johnson, 16 Ga. 458. See also, supra, p. 94, note j.
(0) Despatch Line of Packets v. Bellamy Manuf. Co., 12 N. H. 205; McCall v. Clayton, Busbee, 422; Proctor v. Webber, 1 D. Chip 371; Roberts v. Button, 14 Vt. 195, Shelton v. Darling, 2 Conn. 435; Johnson v. Smith, 21 Conn. 627. In Hovey v. Magill, 2 Conn. 680, where the defendant, being the agent of a corporation, gave a note in the form stated in the text, Swift, C. J. said: "When an agent duly authorized subscribes an engagement, in such manner as to manifest an intent not to bind himself, but to bind the principal; and when, by his subscription, he has actually bound the principal, then it is clear that the contract cannot be binding on him personally. It will be agreed that no precise form of words is required to be used in the signature; that every word must have an effect, if possible; and that the intention must be collected from the whole instrument taken together. Who can entertain a doubt, upon reading the note in question, that it was the intent of the defendant to bind the company, and not himself? It is, however, said, that he has made use of the expression 'I promise,' which is, in terms, a personal undertaking; but he has qualified it by adding his character of agent, which unequivocally shows that he did not mean to bind himself. Again, it is said, he might have added this merely to distinguish the company from his private concerns. This is a far-fetched supposition indeed. If such had been the object, it could much more effectually have been answered by a proper mode of keeping his accounts. I can see no good reason for the addition of agent,' but to ren der the note obligatory on the company, and exclude all idea of individual liability. This is the plain language of the transaction; and we ought to give it the obvious meaning, and not entrap men by the mere form of words. This mode of signing the note will fairly admit of this construction: I, as agent of the company, pledge their credit, or give their promise, to pay the note; or, the company by me as their agent, promise to pay it. But if we consider the word agent as merely descriptio persona, we give it no operation, and really expunge it from the writing. We are bound, however, to give effect to every word, if possible; and the only way to give this word any effect is, to make the note binding on the company." But see Macbean v. Morrison, 1 A. K. Marsh. 545; Kean v. Davis, 1 N. J. 683, 1 Spencer, 425; Wyman v. Gray, 7 Harris & J. 409; Hills. Bannister, 8 Cowen, 31; Brockway v. Allen, 17 Wend. 40, Rathbon v. Budlong, 15 Johns. 1; Barker v. Mechanic Ins. Co., 3 Wend. 94. In Mare v. Charles, 5 Ellis & B. 978, an order to pay to the drawer's order at three months after date a sum of money "for value received in machinery supplied the adventurers in H. mines," was directed "to Mr. W. C." W. C. wrote upon it, "Accepted for the company, W. C., Purser." Held, that this made W. C. personally liable as acceptor of the bill. But this decision proceeded upon the ground, that, the bill having been directed to W. C. alone, the company could not be bound by his acceptance. Lord Campbell said: “The bill is drawn on the defendant as an individual; it is addressed to Mr. W. Charles.' It is true, it is stated to be drawn for value supplied to the adventurers in a mining company; but it is drawn on Charles as an individual: He writes upon it, 'Accepted for the company'; and he signs this William Charles, Purser.' If the words of an instrument will reasonably bear an interpretation making it valid, we must not construe them so as to make it void. Benigno faciendæ sunt interpretationes, ut res magis valeat VOL. I.-G