urer." 251

So, too, in the following notes: "I, C. W. L., Director of School District No. 2, promise," etc. "C. W. L., Director;" 252 "I promise," etc., "for building a school house in said district. A. B., Local Director;" 253 "I promise," etc. "A. M., Agent for the M. Mfg. Co.;" 254 "For and on behalf of the D. M. Co., I promise,” etc. "W. R., Supt.;" 255 "I promise," etc. "M. H. Moore, P. D. L. Co.," Moore being the president of the D. L. Co.; 256 "I promise, as president of the T. O. Co.," etc. "A. B., Pres. T. O. Co.;" 257 "I will give," etc., with condition "should we do," etc., "we will allow *. A. B., Agent of the F. B. Co." 258

"We or Either of Us"-"Jointly and Severally."

§ 143. On the other hand, "we promise" seems the natural form of words for a corporation's promise, if the name itself is not used in the body of the note. Many instances have been already given of notes in this form, some construed as corporate obligations and others not. Nor are these decisions always easily reconcilable. Thus, a note in this form, "We promise," etc., signed, "W. B. S., Secretary," and sealed with the corporate seal, has been held in Indiana to be a note of the corporation; 259 while in England a note reading, "We, the directors of the A. B. Company, promise," etc., signed with the individual names of the directors simply, was held to be their personal obligation, although sealed with the corporate

251 Mann v. Chandler, 9 Mass. 335.

But this case has been overruled. Bar

low v. Society, 8 Allen (Mass.) 461. And see § 136, supra.

252 McGee v. Larramore, 50 Mo. 425.

253 McClellan v. Reynolds, 49 Mo. 312.

254 Hovey v. Magill, 2 Conn. 680.

255 Jones v. Clark, 42 Cal. 180. In this case it was shown that the consideration went to the company, and that the company paid interest after W. R.'s death, and was estopped from denying the note to be theirs.

256 Lacy v. Lumber Co., 43 Iowa, 510. This note was dated at the company's office, and was shown by parol to have been executed for the company. 257 Randall v. Snyder, 1 Lans. (N. Y.) 163, although the note was ultra vires. 258 Rogers v. March, 33 Me. 106.

259 Means v. Swormstedt, 32 Ind. 87. So, in Texas, without a seal, a note, "We promise * * *. A. B., Agent. C. D. E. F.;" that being their customary form, and the last two signing as sureties. McIlhenny Co. v. Blum, 68 Tex. 197, 4 S. W. 367.

seal.2 260 But in England it was held that a note in the form, "We jointly promise," etc., "on account of the L. & B. Company," signed, "A., B., C., Directors," and attested by the secretary, was a note of the corporation; 201 and in Louisiana an equally joint promise reading, "The Butchers' Benevolent Association vs. Crescent City Co. We, the undersigned, bind ourselves to pay in solido," etc.,—signed with the individual names simply, was held to be an individual note. 262

And it seems that the expression "we or either of us" forms no more certain guide as to the party to be bound. Thus, in a promissory note in the form, "We or either of us, directors of the T. Company, promise," etc., signed, "A. B., Pres. C. D., E. F.,"-the individual signers were held personally liable.263 So, too, even in a note reading: "We or either of us "We or either of us as directors of the H. M. & G. road, promise," etc.26+ But the school district was held on a note reading: "We or either of us promise, in behalf of

*

the school district No. 6. A. B., Pres. C. D., Secy. E. F., Treas

A joint and several promise is, however, generally a personal one, and the individuals are bound by it, and not the corporation. This has been the construction in England of the following note: "We jointly and severally promise, Wesleyan Newspaper Association. in the United States, of a note: H., jointly and severally promise

for and on behalf of the A., B., C., A., B., C., Directors;" 266 and,

"We,

as trustees of the town of

A., B., C., Trustees." 267

260 Dutton v. Marsh, L. R. 6 Q. B. 361. So, too, a note, "We promise * *. P. Co., by A. B., Pres. C. D. E. F.," as to the two last named, who were directors. Taylor v. Reger (Ind. Sup.) 48 N. E. 262.

261 Lindus v. Melrose, Hurl. & N. 177. So, too, a note running, "We promise for ourselves and our successors," etc., signed, "A., B., C., Vestrymen of St. John's Parish," and given for land bought for the parish, has been held to be binding on the corporation only. Creswell v. Holden, 3 MacArthur (D. C.) 579.

262 Cooley v. Esteban, 26 La. Ann. 515.

263 Whitney v. Sudduth, 4 Metc. (Ky.) 296.

264 Titus v. Kyle, 10 Ohio St. 444.

265 Harvey v. Irvine, 11 Iowa, 82.

266 Healey v. Story, 3 Exch. 3. Here the word "severally" was held equivalent to "personally."

267 Trask v. Roberts, 1 B. Mon. (Ky.) 201. And see Savage v. Rix, 9 N.

Principal Indicated by Agent's Promise "as" Such.

§ 144. If, indeed, a promise is made by an agent, trustee, or other officer, as agent, etc., the intention to bind the principal only is apparently clear. There is not wanting, however, the usual array of cases to the contrary. So far as these opposing cases turn only upon that expression, they cannot be regarded as authorities of any value. An intention to bind the corporation as an expressed principal, and not the agent himself, has been held to be manifest in the following notes: "The trustees of the Third Church, as such trustees, promise," etc., signed by each "as trustee of the Third Church;" ." 268 “We, as trustees of the A. & W. R. R. Company, promise," etc., signed, "A., B., C., Trustees of the A. & W. R. R. Co.;" 269 "I promise, as president of the T. O. Company," etc., signed, "A. B., President of the T. O. Company;" 270 "We, as trustees of the Methodist Episcopal Church, promise," etc., signed, "A., B., Trustees;" 271 "We, as trustees of school district No. 10, promise," etc.. signed with their individual names only; 272 "We, the trustees of the Evangelical GerH. 263, where road commissioners were held individually liable on a joint and several note, though made expressly "in official capacity," and signed “A. B., C. D., Road Commissioners." This case seems, however, to have turned on the commissioners' want of authority to execute the note. But see, contra, Rice v. Gove, 22 Pick. (Mass.) 158, where the note read, "We jointly and severally promise," etc., but was signed, "R. & J., for G.," and G. was held as the maker.

268 Little v. Bailey, 87 Ill. 239.

269 Blanchard v. Kaull, 44 Cal. 440. Although there be no such corporation as that named, or no authority to execute a note for it.

270 Randall v. Snyder, 1 Lans. (N. Y.) 163. Although the note in question was ultra vires.

271 Leach v. Blow, 8 Smedes & M. (Miss.) 221. And this note was not admissible in evidence, it was held, in an action against the individual trustees. 272 Sanborn v. Neal, 4 Minn. 126 (Gil. 83); Emmett, C. J., saying: "As the primary object in all cases is to ascertain what the parties really intended to declare by the language used, it should make no material difference whether this intention appears in the signature, or the body of the instrument." It was held in this case that the trustees were exempt, as known public officers. But a different result was reached in the same court where the note read, "We promise," etc. "A., B., C., Trustees of School District No. 5." Fowler v. Atkinson, 6 Minn. 578 (Gil. 412). This is also prima facie the case where the note is drawn, "We, the trustees of school district No. 10, promise,” etc. “A. B.,

man Church, for ourselves as such trustees and our successors in office, promise and bind ourselves for said congregation and such successors in office," etc., signed, "A., B., C., Trustees;" 273 "I, as treasurer of the Congregational Society, or my successors in office, promise," etc., signed, "A. B., Treasurer." 274 So, too, a contract by "C. L., as agent for and on the part and behalf of S. R.," signed by C. L., and afterwards ratified in writing by S. R., is not binding upon C. L. personally.275

Other cases, turning in some instances, as will be seen, on other circumstance or expression, hold such a contract or note to be that of the agent only. Thus, a draft signed by several "as commissioners," has been held to be binding upon them personally; 276 or a sealed covenant, signed and sealed by A. B., "as Agent"; 277 or a contract of sale made for a principal residing abroad, and signed "as Agents for J. S. & Co., W. & S." 278 So, a promissory note read

Trustees," leaving on the plaintiff the onus probandi. Bingham v. Stewart, 13 Minn. 106 (Gil. 96).

273 Klostermann v. Loos, 58 Mo. 290; parol evidence being admissible to show such intention, if necessary.

274 Barlow v. Society, 8 Allen (Mass.) 460. "Even the insertion in a promissory note of the word 'as' between the name of the signer and the description of his relation to another person, has been held not sufficient to exempt him from personal liability where the note showed upon its face that no other person was legally bound, as in the case of a promissory note made by a guardian 'as guardian,'" Gray, J., page 464. But of the note in question in the suit he says (page 465): "The note not only names the principal. describes the relation between the principal and the agent, and declares the note to be made in execution of the agency, but it cannot take effect according to its terms except as the note of the principal."

275 Spittle v. Lavender, 2 Brod. & B. 452.

276 Byles, Bills, 76; Eaton v. Bell, 5 Barn. & Ald. 34; Nicholls v. Diamond, 9 Exch. 154; Bottomley v. Fisher, 1 Hurl. & C. 211.

277 Stone v. Wood, 7 Cow. (N. Y.) 453.

278 Paice v. Walker, L. R. 5 Exch. 173. But in Gadd v. Houghton, 1 Exch. Div. 357, where a different conclusion was reached as to a contract for sale of oranges, "on account of J. M. & Co., Valencia," signed, "J. C. H. & Co.." Lord Justice James said (page 359): "The case is not, in my opinion, in any way governed by Paice v. Walker; for, whatever the decision was in that case upon the words 'as agents,' the words in the present case, 'on account of,' are not at all ambiguous, and it would be impossible to make them words of description. The ratio decidendi in Paice v. Walker was that, having regard to the contract and all the circumstances of the case, the words 'as

279

281

ing, "We, or either of us, as directors of the H. M. & G. road, promise," etc.; or, "We, as trustees of the town of H., jointly and severally promise," etc., signed, "A., B., C., Trustees"; 280 or, "I, A. B., as trustee of the Louisiana Company, promise," etc., signed, "A. B., Trustee La. Co."; or, "We, as committeemen for the erection of a school house in district No. 3, promise," etc., signed with the individual names only.2 282 So, too, "We, as trustees of the Summerfield Methodist Episcopal Church, for and in behalf of said church, promise," etc., signed, "A., B., Trustees of the S. M. E. Ch.," but not executed in a legal manner by the trustees "lawfully convened." 283

Principal Indicated as Acceptor or Indorser by Drawee's or Payee's Name.

§ 145. The principles already laid down as to the individual liability of an agent drawing a bill or note in his own name are in general applicable to acceptances and indorsements by an agent. In an acceptance or indorsement, however, there is an additional means for ascertaining who is to be bound in the way in which the bill or note is drawn. Thus, if the bill or draft is drawn upon the principal by name, and accepted by the agent in his own name, it will agents' must be considered as merely describing or intimating the fact that the defendants were agents, and did not amount to a statement that they were making a bargain 'on account of' another person. Those are the very words used in the present case. When a man says that he is making a contract 'on account of' some one else, it seems to me that he uses the very strongest terms the English language affords to show that he is not binding himself, but is binding his principal. As to Paice v. Walker, I cannot conceive that the words as agents' can be properly understood as implying merely a description. The word 'as' seems to exclude that idea. If that case were now before us, I should hold that the words 'as agents' in that case had the same effect as the words 'on account of' in the present case, and that the decision in that case ought not to stand. I do not dissent from the principle that a man does not relieve himself from liability upon a contract by using words which are intended to be merely words of description, but I do not think the words 'as agents' were words of description."