Paige v. Stone

Hubbard, J. It is not necessary to settle all the questions raised in this case ; but we think it was properly left to the jury to determine what was meant and understood by the words “Asa Fessenden, for the assignees,” and whether the defendants were the only acting assignees. In examining the evidence, as the same is reported, we axe [168] satisfied that there was no express authority originally given to Fessenden to sign notes binding the assignees, treating, for this purpose, the two defendants as assignees. Fessenden had been engaged in the business of carriage-making, and, becoming embarrassed, he assigned his property to the defendants and three others, for the benefit of his creditors; and he afterwards carried on the business for the assignees, making purchases of stock, hiring and paying workmen, and disposing of the manufactured goods. It was a business which, in the conducting of it, required no authority to bind the principals by note. Such an authority is neither implied from the nature of the business, nor to be presumed from any supposed convenience in transacting it to advantage. See Taber v. Cannon, 8 Met. 458, 459. The power of binding by promissory negotiable notes can be conferred only by the direct authority of the party to be bound, with the single exception where, by necessary implication, the duties to be performed cannot be discharged without the exercise of such a power. To facilitate the business of note making, and thus affect the interest and estates of third persons to an indefinite amount, is not within the object and intent of the law regulating the common duties of principal and agent; neither is the power to be implied because occasionally an instance occurs in which a note, so made, should in equity .be paid. Emerson v. Providence Hat Manuf. Co. 12 Mass. 237. The plaintiff’s cause, then, must rest either on the express recognition of this note by the defendants, or on the right of Fessenden to bind them by note, by reason of his exercise of such a right during his agency, and within their knowledge. But the testimony sustains neither proposition. There was no evidence that the defendants knew of the existence of this note, till it was sued; nor was such a usage proved, in respect to making notes by Fessenden, as can bind the assignees. Only two instances, besides the present, have been certified to, in one of which only one of the assignees assented, and his assent cannot bind the other without [169] further evidence ; and in the other the note was small, and after being put in suit was settled by their directions; but whether their previous assent to it was obtained or not is not stated. But it appears, further, that the note of Fessenden was taken by Knight, with the knowledge, on his part, of the defendants’ liability for work so performed, and of his (Fessenden’s) agency, and authority to contract on their account for the work. And we are of opinion that the taking of the note of the agent alone, under the knowledge of the circumstances, is a discharge of the principal; a rule well established in the dealings of merchants and factors. Paterson v. Gandasequi, 15 East, 62. Wilkins v. Reed, 6 Greenl. 220. French v. Price, 24 Pick. 13. Green v. Tanner, 8 Met. 411. The note having been received in payment, Knight and Fessenden could not afterwards rescind the contract and make a new agreement, either in the form of a note or otherwise, binding the assignees for the preexisting debt, without their knowledge and assent. In coming to this decision, we do not overlook the fact — though we are by no means governed by' it — that the plaintiff is a purchaser, under value, some years' after the existence of the contract, without notice to the defendants, and that the claim is one of strict law, without those accompanying circumstances of equity which occasionally afford reasons for enforcing demands not free from doubt. New trial to be had in this court.