Rudolph Wurlitzer Co. v. Rossmann

REYNOLDS, P. J. (after stating the facts). — It will be noticed that there is no complaint made in this motion as to the exclusion of evidence, nor does the requested finding appear. Learned counsel for appellant in his brief makes two points for reversal and we confine ourselves to them. His first point is, that the notes were wholly without consideration, arguing that absence of consideration is a matter of defense as against any person not a holder in due course, and citing section 9999, Revised Statutes 1909, in support of this proposition. That section provides that absence or failure of consideration is a matter of defense as against any person not a holder in due course. It is also argued under this first point that respondent was not a holder in due course, the notes never having been negotiated, and it is stated — 87 — that the court expressly found that no consideration passed to appellant. Disposing of this last proposition, it is sufficient to say that the court found there was consideration for the notes. Taking up the remainder of the point, while it is true that no consideration passed personally to appellant, it is abundantly clear' that there was a consideration for the notes as between the two companies; in point of fact, every count of the answer admitted there was a consideration for the notes, it being averred that they weré given for a piano purchased from plaintiff by the International Electric Piano Company. That the consideration did not pass to the plaintiff herself is entirely immaterial. It is hornbook law that if A purchases goods from B, for which he does not immediately pay, and that C and D give their note to B for A’s debt, the consideration between A and B is sufficient to support the note of C and D given to B on that consideration. We are therefore unable to agree with the proposition of learned counsel, that the defense interposed was clearly within the statute referred to and hence should have been sustained. The second point argued by learned counsel for appellant is that -the finding below cannot be sustained upon some hypothesis of accommodation, because: first, appellant was not an accommodation maker but had “mistakenly signed without indicating in what capacity she signed;” and, second, that it is impossible to distinguish the case in principle from that of Chicago Title & Trust Co. v. Brady, 165 Mo. 197, l. c. 205, 65 S. W. 303. It is also argued under this point by learned counsel for appellant that she had “signed the note as the company’s note. She omitted the proof of that fact from the face of the paper. This is all that can be figured out of the case.” Admitting that plaintiff had “mistakenly signed without indicating in what capacity she signed,” that mistake is to her own hurt and cannot avail her in. this action. Mistakes of fact may be relieved in a — 88 — court of eqiiity, but are not cognizable by a court of law in a purely legal action. So the learned trial judge intimated; that is, if appellant had brought an action for the reformation of the notes, they still being in the hands of the original party, or of one having notice, that action might have been maintained. But she did not do that and attempted in this proceeding to vary the written contract by parol, a thing she could not do. The fact here admitted by her counsel, that appellant “had omitted proof of that fact (of her representative capacity) from the face of the paper,” is fatal in this action. There have been decisions in which it seems to have been held that a party signing a note and attaching to his signature the designation of an office he holds, cannot be held personally. But when the decisions of our own State are examined, which are claimed to so hold, it will be found that there was something in the body of the instrument itself or in the manner of the signature, to allow evidence to be introduced to explain the apparent ambiguity. The last decision of our Supreme Court treating of this, to which our attention has been called, is that of Spark et al. v. The Dispatch Transfer Co., 104 Mo. 531, 13 S. W. 417. There Judge Gantt, who wrote the opinion, has carefully reviewed the authorities which are claimed to throw any light upon the point, not only in our own State but by text-writers and courts, both of the United States and of other courts. Even in that case, with all the decisions of- our Supreme Court before '(him on questions at all germane to the question, Judge Gantt has said (l. c. 541), that the exact question presented there, that is, the liability of the defendant company on the notes signed by its president in his own name and without any reference to the corporation in the body or in the signature, had hot been passed on by our Supreme Court. The Sparks case, supra, was an action upon given notes, two of them ordinary promissory notes, payable at a day named and for value received, signed “Dispatch Transfer Co., by S. Jack — 89 — son, President-.” The- remaining three notes were in the ordinary form of negotiable promissory notes and signed, “S. Jackson.” The plaintiff Sparks and others sued the Dispatch Transfer Company on these notes. The jury returned a verdict in favor of the plaintiff on all of them. Parol evidence was admitted at the trial to show that the defendant, corporation was liable on the three notes signed by its president in his individual name without any reference in the notes themselves or in the signatures to any official character, there being evidence, however, to the effect that the mules, for the purchase of which these notes had been given, were purchased for the use of the defendant company. Judge Gantt, after stating that the precise- point was new in our State, as above noted, says that it has been long settled in many of our sister States, citing a number of decisions. He refers to and quotes from Pentz v. Stanton, 10 Wend. 271, as carrying the conclusion arrived at upon the examination of authorities in England and in the different States of the Union (l. c. 542) as being to the effect “that no person can be considered a party to a bill, unless his name, or the name of the firm of which he i's a partner, appears on some part of it.” He states this as a rule universally accepted as law by recent text-writers, referring to them, and designates paper which contain no such indicium and is signed in that way as, “ ‘a courier without luggage,’ whose countenance is its passport; and, in suits upon negotiable instruments, no evidence is admissible to charge any person as a principal thereto, unless his name in some way is disclosed upon the instrument itself.” Judge Gantt adds: “And another good reason for the rule is, that every part of commercial paper must be definite and certain and contained in the body of the paper itself, so that every taker and holder understands exactly what his rights in and to it are, and with whom he is contracting.” Judge Gantt further approvingly quotes from Mechanics’ — 90 — Bank of Alexandria v. Bank of Columbia, 5 Wheat on 326, l. c. 336, this: “But the fact that this appeared on its face to he a private cheek, is by no means to be conceded. On the contrary, the appearance of the corporate name of the institution on the face of the paper, at once leads to the belief that it is a corporate, and not an individual, transaction; to which must be added the circumstances that the cashier is the drawer, and the teller the payee; and the form of ordinary checks deviated from the substitution of to order, for to bearer. The evidence, therefore, on the face of the bill, predominates in favor of its being a bank transaction.” The conclusion of our Supreme Court in the Sparks case, supra (1. c. 548), is to the effect that in view' of the law, the trial court erred in the admission of parol evidence to show that Jackson executed three of the notes sued on as notes of the corporation. That cáse is the converse of the one before us, but its principle is here applicable. While it was decided before the adoption in 1905 of our Negotiable Instrument Law, chap. 86, Revised Statutes 1909, we think it is in entire harmony with' what is now section 9991, Revised Statutes 1909, a section in that law. By that section it is provided: “Where the instrument contains or , a per^n adds to his signature words indicating that he signs for or on behalf of a principal or in a representative capacity, he is not liable on the instrument if he was duly authorized; but the mere addition of words describing him as agent, or as filling a representative character, without disclosing his principal, does not exempt him from personal liability.” In our judgment this section is conclusive of the proposition here involved. While on the first two notes the name of the International Electric Piano Company appears, followed by the signature, “M. D. Gross, Pres.,” the signature of appellant following has no official designation — 91 — whatsoever and in the remaining notes no reference whatever to any corporation appears; they are ordinary promissory notes, signed, “M. D. Gross, Telda Rossmann, Secy.” Clearly on the two first notes appellant signed and is bound individually. We know of no rule which prevents an individual signing a note as maker with a corporation. That is exactly what this appellant did as to the two first notes. In the remaining seven notes the word or abbreviation “Secy.,” appears, but the name of the International Electric Piano Company nowhere appears either as a party or signatory. We are aware that there has been some diversity of opinion even since the enactment of this statute among some of the courts of States in which the Negotiable Instrument Law has been adopted, as to the proper construction of this provision; those decisions adhering to older decisions. But as we had occasion to say in Walker v. Dunham et al., 135 Mo. App. 396, 115 S. W. 1086, when our State, as the result of efforts made by the members of the American Bar Association, and following many other States, adopted the Negotiable Instrument Act, the very purpose of that act was to harmonize the • law and to establish uniformity of law throughout the several States of the Union on the subject of negotiable instruments. It would avail very little for our legislative branch of the government to attempt, by legislation, to. adopt a uniform system of laws on any subject and for the judicial department — the courts — to depart as widely as ever from each other as before, in construing the same provision in that law. Such a course certainly does not tend to- the promotion of harmony and uniformity throughout the Union on a matter of so great importance as that involved in the construction of negotiable instruments. The only decisions by any of our appellate courts on the point here involved, rendered since the adoption of our Negotiable Instrument Law, and on notes — 92 — falling under it, are Stephenson v. Joplin State Bank, 160 Mo. App. 47, 141 S. W. 691, and Myers v. Chesley, 190 Mo. App. 371, 177 S. W. 326, decisions rendered by the Springfield Court of Appeals. In both these decisions we think that that learned body recognized the law to be as we here hold. In the Myers case, supra, the note was held, and we think, correctly, to fall within section 9991 of our Negotiable Instrument Act. In the very note there involved it appeared on its face that the defendant there had signed “for or on behalf of a (named) principal or in a representative capacity.” Each of these decisions is in line with that of Sparks v. Dispatch Transfer Co., supra, and with what we here hold. We hold, therefore, that the learned trial court committed no error in excluding the parol evidence which was offered to vary and counteract the plain provisions of these several notes. Learned counsel for appellant has himself stated that appellant was not an accommodation maker but that she “mistakenly signed without indicating in what capacity she signed.” Her mistake is one of which she must herself suffer the consequences, unfortunate as they may be for her. When. that counsel, however, asserts under the second subdivision of his second point, that it is impossible to distinguish the case at bar in principle from that of Chicago Title & Trust Co. v. Brady, 165 Mo. 197, and referring, as he does, especially, to page 205, we are unable to. agree with him. That was a case in which there was no consideration whatever. For the purpose of swelling the apparent assets of the bank, of which they were officers, Brady and another officer executed their notes to the bank. The bank subsequently becoming insolvent and going into the hands of a receiver, that receiver, the Chicago Title & Trust Company, sued Brady upon the notes. II was very properly held there, not only by reason of this being an accommodation paper, but because there was no consideration whatever to anyone, that the receiver could — 93 — have no higher title in the paper than the corporation it represented; could not recover as against the defendant. That is very far from the case at bar, for here, contrary to the assertion of the learned counsel for appellant, the trial court did find as a fact and as we have before set out, that there was a consideration for the note, here given; not moving, it is true, immediately to the defendant, here a party to the note, hut to the corporation; and so the appellant herself pleaded. This is probably a hard case on appellant, hut we, as a court, cannot disregard or set aside rules which must be applied in the construction of commercial paper by the seeming hardness of a particular case. Without going further into the case our conclusion is that the judgment of the trial court is correct and it is accordingly affirmed. Allen, J., concurs.