Hovey v. Magill

Swift, Ch. J. In this case, it is conceded, that the defendant was agent for the Middletown Manufacturing Company ; that he had power to bind them ; and that this contract was made for their use and benefit. It is also agreed, that an agent can make himself personally liable on a contract for his principal. So that the question is, whether the signature of the defendant, “ Arthur W. Magill, agent of the Middletown Manufacturing Company,” is obligatory on the. company, or on himself. 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, how» un-, said, that he has made use of the expression (í I promise,’’ which-is,.in-terms, a personal undertaking : but he lias qualified it, by adding his character of agent, which unequivocally shews, that he — 683 — 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 render 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 eompany, 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. The case of Hodgson v. Dexter, 1 Cranch 345. is, in all respects, ad idem. There, the contract was made by « Samuel Dexter, Secretary of War.” He bound himself, and his successors, and subscribed the instrument by his own proper name, without any addition. The court decided, that as it appeared from the whole face of the agreement, it was made entirely on public account, and not for the private advantage of the defendant, it was not binding on him. But here was a signing in his private character ; yet it appearing from the body of the instrument, that it was on public account, the defendant was held not responsible. So in the present case, though the defendant uses the expression “ I promise,” which would import a personal engagement ; yet when it is coupled with the declaration, that he acts as “ agent for the Middletown Manufacturing Company,” the meaning of it is qualified, and explained, to constitute a contract binding on that company. The case of Shelton & Parrot v. Darling, in this court, recognizes the same principle. That was a bill of exchange drawn on “ Noyes Darling, agent of the Commission Company and he accepted it, by the signature of ” Noyes Darling, agent C. C.” This question, it is true, was not made; but it fairly arose upon the record j for accepted is the same as — 684 — I accept, and as «inch imports n pci*Mmal undertaking, as^ I promise. This point would have buen decisive in favour of the plaintiff ; but it escaped the attention of the counsel and the court. This would be. strange, if they had not al! considered, that such am acceptance did not imply a personal liability. Thumb itix, Edmond, Brainard, and Peters, Js. were of the same opinion. ■ Smith, J. I do not imagine there can be any doubt but that an agent of a company may receive property for its use and benefit, and so contract in writing as to pledge his individual responsibility, or that of the company, or both, as the parties shall mutually stipulate. A correct decision, in this case, will not, therefore, depend so much on solving any doubtful point of law, as on discovering the real intent and meaning of the parties. When I look at this contract, I cannot imagine words more appropriate to create a personal liability than I there find. What can be more effectual for this purpose than the words “ I promise to pay and his being agent to a company makes no difference with the nature and terms of the promise : it is, nevertheless, according to the obvious import of the language, his promise to pay. I apprehend, that no person could receive a note drawn in this manner, without understanding, that he had the individual promise of the agent, and might rely on his responsibility. And 1 apprehend, it is agreeable to the common course of business for persons who deal with an agent of a manufacturing company, to take their contracts with a view to the personal responsibility of the agent. People at large are not supposed to be acquainted with the precise state of the pecuniary concerns of a manufacturing company, or the amount of its funds ; and, of course, would feel unsafe to part with property, without the personal security of the agent. - On the other hand, the agent, who is supposed to be fully acquainted with all its concerns, cannot refuse to give bis individual security, without destroying all confidence in its responsibility. Hence, the practice of drawing and signing contracts like the one under consideration, which, while it contains a direct .personal obligation, on the part of the agent, contains also evidence, that he pledges his person — 685 — a! security for and on account of the company — a practice no less dictated by necessity than propriety. And lienee, the practice, also, of the company’s paying off notes so drawn, and so signed. The court on the circuit seem to have proceeded on the ground, that a liability of the company would discharge the agent; but this, I think to he a mistake. Perhaps, in this case, the plaintiff might have proceeded against the company, and by proving that the contract was made for their benefit, might have recovered ; and especially, with the farther proof, which was adduced in this case, that they had usually paid notes drawn and signed in this way. But will it be said, that this is any reason why the agent should not also be liable, provided there is a direct personal obligation to pay ,• and that there is such obligation in this writing, I have already shewn. Hosmer, J. was of the same opinion. Gouxd, J. My opinion is, that the note in question binds the defendant, personally. The question is matter of mere legal construction, to be determined only from the face of the instrument. For, the authority of the defendant to hind the company not being disputed ; there is no extrinsic fact, which can have any influence, in our determination. To show, that this remark is, in its strictest sense, applicable to the present case, it may be observed, that promissory notes, not negotiable, have, from time immemorial, been regarded, and treated, in our courts of justice, as specialties. It is certain, that an agent may bind himself, personally, by a contract, made for the benefit of his principal. And the question, whether the one, or the other, is the party bound, may depend, either upon the form of the signature only, or upon the signature, taken, in connexion with something, appearing in the body of the instrument. The note, now in question, is in this form •, 441 promise to pay, &c. for value received y’ and signed 44 A. ft', JHagilt, agent for the Middle-town Manufacturing Company.” Now, the only question is, whose contract is this ? In other words, whose language is it ? If the principal, claimed to be bound by it, were a natural person $ the body of the instrument would afford no ground of inference, either way. For the pronoun, 44 1,” might denote either the principal, or the agent. But in this cese. — 686 — the words of the note are, in my judgment, very material. For though it is true, in legal theory* that a corporation aggregate is an artificial, or civil person ; yet, the words “/promise,” as referred to such a corporation, are extremely unappropriate, and in the common use of language, and the common forms of written instruments, entirely unknown. Indeed, the pronoun, he, or she, would be quite as likely to be employed, with reference to such a corporation, where the language of a contract is in the third person, as the pronoun, J, would have been, to designate the manufacturing company, in the present case. It is true, that in Rex v. Bigg, 3 P. Wms. 422., a note drawn in this form, and signed “ Joshua Mams, on behalf of the Bank of England,” was, by a divided opinion, holden to be a bank-note. But this determination was founded upon the long and notorious usage of the bank, by which such notes had been recognized and adopted, by that corporation, as their own ; and in consequence of which a universal credit had been given them, as such, by the public. And upon the same principle, the same determination would have been had, I trust, whatever might have been the form of the instrument, or of the signature, thus adopted and sanctioned. Such also w as the principle, w hich governed the case of Witte v. The Derby Fishing Company, 2 Conn. Rep. 260. Judging only from the body of the note, therefore, I should certainly conclude, that it was the contract of the individual signing it. But the form of the signature, it is said, establishes a different conclusion. If there were any inconsistency between the terms of the instrument, and the mode of signature $ that circumstance might present a distinct question from the one before us. But there is none. The signature of the defendant does not purport to have been made in behalf of a principal. In the f irm, “ J. W. Magill, agent for the Middletown Manufacturing Company,” the words, “ agent for” the company, are equivalent, only, to the words, “ agent of, or to, the company.” They do not, therefore, express an act of agency, as the words “ J. B. for C. D.” would do. They are mere description. I agree, that no precise form of words is indispensable to the execution of an instrument, by an agent, for a principal. But it must appear, in some way, that the instrument is executed in behalf of the principal j or it cannot be his act. Here, it does not so appear. , — 687 — But why, it is asked, is the word, « agent,’* used in the signature, if it was not intended to bind the company ? It might, perhaps, as well be asked, why the pronoun, “ I,” is used, in the body of the note, if the person signing wras not intended to be personally bound Í But the more proper answer is, that such additions are often made, by way of description, when they can have no legal effect. It is not unusual for one, who, as surety, executes a joint bond, with the principal debtor, to annex to his name, the character, in which lie signs. But there is no doubt, that he is liable to the creditor, as principal. An executor, or administrator, who assumes a debt, due from the person, whom he represents, by giving his own note for it, frequently annexes to his name his representative character. But it is well settled, that the contract binds himself, personally, and not the assets in his hands. So also, in the present case, the defendant, probably, added the words “ agent for the Middletown Manufacturing Company,” to shew, that he was to pay out of the company’s funds, or that he was to charge the payment over to the company. But whatever may have been actually his object, the addition can, in my judgment, have no effect, upon the construction of the instrument. This view of the case appears to me to be the correct one, ami is justified, 1 think, by the authorities introduced. These are very numerous j and I do not wish to enter into a minute examination of them. Of those, however, which have been: cited for the defendant, it Is proper for me to take some notice. Tins case, of Wilks v. Back, 2 East, 142. affords no more support to the argument on one side, than on the other. Every circumstance in that case went to show, that the principas was hound, lie mast have been named in the body of the bond of submission. The agent, being himself abo a party., had signed and scaled, for himself, separately ; and thee, signed, “ For J. B. — M. W. :’3f a form, prescisely tantamount to, i( M. W. in behalf of J, 7i.” The intention to hind the principal was the clearest imaginable : the only question was as to the form of signature, (which was, undoubtedly, a proper one for binding the principal) *. whereas, in the present case, the intention is the main point in question • In Gilman v. Pope, 5 Mass. Bep. 492. the action was brought by an agent of a corporation, as upon a promise — 688 — made to. himself. The contract: did not even describe him, as agent,; but the court held, that he could not maintain the action : since the promise, if made to him, in his private capacity, would be void, as being without consideration. There was no question, and could be none, as to the proper mode of signing,: by an agent, to bind his principal : but as it appeared from the written agreement, exhibited iri proof, of the promise, that the assessment, for which the action was brought, was to be paid, for the benefit of the corporation, which was actually the party in interest ; the chief justice held, that the corporation might maintain the action. This case, then, has clearly, nothing in common with the present. Odióme v. Maxcy, 13 Mass. Rep. 178., though it resembles this case, in one respect, falls far short of the point, whiclt it is incumbent on the defendant to establish. The action was against a cotton factory company, as indorsers of two promissory notes : the indorsment, by the company’s agent, was in the same form, as that now before us : and the court held, that if the property, for which the note was given, was purchased for the company, they would be liable. It is true, then, that, so far as regarded the form of signature, the court was of opinion, that one exactly like the present, might hind the principal; and it may be admitted, consistently with my own views, that under the circumstances »f that case, such might be its effect. For there, as the note was made payable to the company ; as, before indorsement, it was the company’s property; and, as no individual, in his private capacity, could indorse it, so as to pass the interest; it might fairly be presumed, that the indorsement, containing the addition ofagent” for the company, was intended to be the company’s act. And if so, it might, by a very liberal application of original rules, (but certainly not otherwise), be considered as their act, in law. Here, however, no such grounds of presumption exist. The same explanation is applicable to the case of Shelton v. Darling, 2 Conn. Rep. 435., where the indorsement was in the same form. There, the bill of exchange was addressed to Darling, as agent for the commission company ; and having been so addressed, by third persons, was regarded as a bill, drawn upon the company. That case, therefore, comes directly within the principle of the former one. It may be added, that in Shelton v. Darling, the liability of the — 689 — company was, in tin's court, assumed, on both shies. That point, therefore, though involved in the determination, was not discussed, nor made. In Hodgson v. Dexter, 1 Cranch, 345., it appeared from the whole frame arid structure of the body of the deed, that the lease was virtually made to the government: and that, so clearly, that the form of the signature was entirely disregarded by the court. It was a deed inter paries, between Hodgson, of the one part, and Samuel Dexter, the defendant, 54 Secretary at War,” of the other. The demise, was to J “ Samuel Dexter and his successors” — containing covenants | by the lessor, with “Samuel Dexter and his stu cessors”-— ! and covenants by the defendant, “ for himself, and ids suc- | cessors.” It was apparent., upon the face of the deed, that I the lease was for the use of government; and the deler-Iinination was grounded, solely, up n the body of the instrument. No comment can be necessary to show, that that case is inapplicable to the present question. The case of Frost v. Wood, 2 Conn. Rep. 23,, is equally irrelevant. Indeed, that is one of the clearest cases suppo-sable, of an act by agency, binding upon the principal. — ■ The defendant was not, as in this case, a corporation aggregate; hut a natural person: Íhe language of the note was “ J promise to pay” — signed, “For It. Wood, A. W. War-riner a form of signature, confessedly tantamount to “ A. It. by C. 7?.” The pronoun “ I,” was, therefore, very properly construed, as referring to the principal. It seems extraordinary, indeed, that the obligation, created on the part of the principal, by such a mode of signing, where the agent had competent authority, should ever have been doubted. These, I believe, are all the authorities, relied upon, for the defendant; and none of them, as I view the subject, support his defence. I shall not occupy time, for the purpose of explaining the authorities cited for the plaintiff; but barely remark, that they appear to me decisive in his favour. I am, therefore, of opinion, that there ought to be a new trial. Ciiapmast, J. It is admitted, in this case, that the defend - ant had authority to bind the company, whose agent he claimed to be, and that he borrowed the money, and gave the — 690 — note in question, for the benefit of the company. The only question, then, presented by the motion, is, whether he executed the note in such form as to bind the company ; for if he did not, he must undoubtedly be bound himself. The authorities cited by the plaintiff abundantly prove this position ; that the addition of “ treasurer of the joeky club”(a) — guardian”(b)—“ executor,” &c. produce no effect upon the obligation entered into, for this plain reason, that persons acting in those capacities, can bind only themselves. The addition of titles, whether civil or military, importing no power to bind other's, may well be rejected as surplusage. But where one acts as the agent of another, with full power so to act, and for the sole benefit of his principal, the form of his signature would seem to be of little importance, provided the character in which he acted, was apparent on the face of the obligation. Was it not so here ? Why did the defendant add to his name, sí Agent for the Middletown Manufacturing Company 1” To bind himself in his personal capacity ? Or to bind those fot whom he acted ? It is said, indeed, that the name of the company ought to have been signed ,; but will it be pretended, that this is indispensable ? Do the authorities support such a rule ? The case of Thomas v. Bishop, 2 Stra. 955. so much relied on by the plaintiff, and perhaps one which goes further in his support, than any other, does not warrant the position. In that case, the bill was drawn on the defendant as « cashier,” but not accepted by him as such. He did not add to his name cashier. Had he done so, having authority to bind the “ Fork Buildings Company,” there can be little doubt but that there would have been a different determination. The numerous cases against public agents, found in the books, sufficiently evince, that it is enough, that the agency appears on the face of the contract, whatever may be the form of the signaturc.(c) The case of Wilks & al. v. Back, 23 East, 142. seems to me decisive of this case. In that case, the Judges severally say, that it is immaterial whether the attorney put his name first, or last- — 691 — But the case, on which I more especially rely, is that of Shelton & al. v. Darling, 2 Conn. Rep. 435. I am unable to distinguish that from the case under consideration. A bill was drawn on the defendant as “ agent of the Commission Company,M and accepted by him thus — “ M'oyes Darling, agent C. C.” The Court held, that he was not. holden, but that he bound the company. After this decision, there seems scarcely room to doubt, that the defendant in this case is not hohleit. Hew trial not to be granted. Footnotes [(a)] 1 Wash. Rep. 199. [(b)] 5 Mass. Rep. 299- [(c)] See Hodgson v. Dexter, 1 Cranch 345.