Hite v. Kendall

Dickinson, Judge, delivered the opinion of the court: The first question has been so repeatedly ruled in this court, that we deem it unnecessary to add any thing further upon it; that where a party has made his motion to dismiss the cause, and after that is decided against him by the court, pleads over; he waives all advantage which he could have had upon his motion, and puts himself upon the issue formed. This brings us to the second and only remaining question to be determined. It was not shown in evidence that the defendant was part owner, captain, or agent of the steamer Tecumseh. The note simply is “ that the steamer Tecumseh and owners promise to pay,” and Kendall signs it. Whose promise is it? If the steamer and owners are hound by it, Kendall surely is not, and if Kendall be personally liable, the steamer Tecumseh, and owners are discharged from all responsibility. In Leadbitter vs. Farrow, 5 M. & S. 349, Ld. Eelenborou&h said, £‘it is a universal rule, that a man who puts his name to a bill of exchange thereby makes himself personally liable, unless he states upon the face of the bill that he subscribed it for another, or by procuration of another, which words are words of exclusion, or unless he says£ I am the mere scribe,’ he becomes liable.” In that case Farrow had drawn a bill upon certain bankers, by which they were requested to pay and place the same to the account of the Durham bank as advised, and merely signed his name to it. The proof showed that Farrow had been the agent of the bank for a considerable time, and yet he was held upon this bill to be personally liable, and Bayeey, J. said, £S though the plaintiff in the action might know the defendant was an agent, he might also know he had given his own pledge by affixing his signature to the bill.” The principle is well settled, that if a person undertakes to contract as an agent for an individual or corporation, and contracts in a manner which is not legally binding upon his principal, he is personally responsible. White vs. Skinner, 13 J. R. 307; Randall vs. Van Vechten, 19 J. R. 60; Taft vs. Brewster, 9 J. R. 334; Tippetts vs. Walker, 4 Mass. R. 596; and Molt vs. Hicks, 1 Cowen 536. The agent, when sued upon a contract, can only exonerate himself from responsibility by showing his authority to bind those for whom he is undertaking to act. It is not for the plaintiff to show that he has not authority. The application of this principle to the case now under consideration clearly proves that Kendall is personally responsible, and not the steamboat owners. He was bound to show that he had authority to contract for the steamer Tecumseh and owners, and to prove this affirmatively, and in failing so to do, hé becomes himself personally liable upon his undertaking. The note upon its face declares no facts which could raise a presumption that he was either part owner, captain, or agent. He signs it in neither of these capacities, and having no lawful authority to contract for them, he has made himself personally responsible by affixing his own signature to the instrument; consequently, the court erred in instructing the jury to find as in a ease of non suit. The judgment of the court below must therefore be reversed.