Andrus v. Blazzard

• Decision Date: 04 February 1901
• Citation: 23 Utah 233,63 P. 888
• Court: Utah Supreme Court
• Parties: JAMES ANDRUS, Appellant, v. JOHN BLAZZARD, JOSEPH H. HURD, et al., Respondents

63 P. 888

23 Utah 233

JAMES ANDRUS, Appellant, v. JOHN BLAZZARD, JOSEPH H. HURD, et al., Respondents

Supreme Court of Utah

February 4, 1901

Appeal from the Third District Court Salt Lake County.-- Hon. Ogden Hiles, Judge.

Action on a promissory note in which it was sought to bind one H personally, H. having signed the note as general guardian for an incompetent. From a judgment holding that H. was not personally responsible and dismissing the complaint plaintiff appealed.

REVERSED.

H. J Dininny, Esq., for appellant.

A note executed by an administrator under an order of the probate court, which order is void, makes the administrator personally liable. He can not shield himself under a void order. When he undertakes to bind the estate and fails to do so for want of authority, he binds himself personally and may be sued upon his contract individually, and in such case it avails him nothing that he intended only to bind himself in his representative capacity. McCalley v. Wilburn, 77 Ala. 549, 552; Whiteside v. Jennings, 19 Ala. 784.

Neither a guardian or trustee can bind any one but himself by a note signed by himself as guardian or trustee for another unless he provides in the note that it is payable out of the estate which he represents. He is not an agent, and the rule of law as to agents does not apply. Norton on Bills and Notes, p 67; Daniel on Negotiable Insts., sec. 271, 4th Ed.; Randolph on Com'l Paper, vol. 1, sec. 134, 443; Parson on Bills and Notes, vol. 1, pp. 89-90; Bank v. Mfg. Co., 17 A. 170; Tayler v. Davis, 110 U.S. 333, 334, 335; Thatcher v. Dinsmore, 5 Mass. 299, 4 Am. Dec. 61; Foster v. Fuller, 6 Mass. 58, 4 Am. Dec. 87; Fessenden v. Jones, 75 Am. Dec. 445, 450; Rollins v. Marsh, 128 Mass. 116-118; Patterson v. Craig, 1 Baxter (Tenn.) 291-293; Steele v McElroy, 1 Smead (Tenn.) 341; Hodson v. Dexter, 1 Cranch (U.S.) 345; Ry. Co. v. Wright, 49 P. 975, 976; Hospital v. Fairbanks, 132 Mass. 414; Wallace v. Bardwell, 126 Mass. 366; Pool v. Wilkinson, 42 Ga. Rep. 539; Hunt v. Maldonado, 89 Cal. 636; Kingsbury v. Powers, 131 Ill. 182, 22 N.E. 479; Reading v. Wilson, 38 N.J. Eq. Rep. 446; Wordeward Case, 38 Pa. St. Rep. 322.

Trustees acting under the provisions of a will making it their duty to endorse notes, who endorse without stipulating in it that the estate they represent shall be liable, are personally liable. This is the rule even when the holder of the note knew of the will, and that the trustees were acting according to its provisions. Bank v. Mfg. Co., 17 A. 170, 171; Lucas v. Williams, 3 Griff. Rep. 150; Laeble v. Ferry, 32 N.J. Eq. 791; Wild v. Davenport, 48 N. J. Law, 129; New v. Nicol, 73 N.Y. 127; Ex parte Gardner, 10 Ves. Jr. 110; Owen v. Delemere, L. R. 15 Eq. 134.

Parol evidence can not be introduced to vary the clear and settled legal effect and meaning of a contract. Brandon v. Morse, 48 Vt. Rep. 322; Bryan v. Duff, 12 Wash. 333; 50 Am. St. Rep. 889 and notes; Fawker v. Smith, 88 Iowa 169; 45 Am. St. 231, 232; Frink v. Rowe, 70 Cal. 296, 316; Ruiz v. Norton, 4 Cal. 355; Gowell v. Ins. Co., 63 F. 371-377; Romer v. Bank, 9 Wheat 581-587; Martin v. Cole, 104 U.S. 30, 38; Brown v. Worley, 20 How. (U.S.) 442, 447, 448; Preston v. Hixon, 53 N.E. 391; Lansford v. Malsby, 28 S.E. 496; Bank v. Stone, 59 Cal. 183; Hays v. Machews, 63 Ind. 412; Durland v. Pitcairn, 51 Ind. 426.

Parol evidence can not be introduced to contradict or vary whatever the law implies from the contract. Bryan v. Duff, 12 Wash. 333; Fawker v. Smith, 88 Iowa 169.

Parol evidence of an understanding that a note signed by a person as executor was to be paid out of the estate, is not admissible. Kessler v. Hall, 64 N.C. 60.

Parol evidence that a note, absolute on its face, and made by the maker as guardian for another, is not admissible to show that it was only to be paid in the event that the assets of the ward were sufficient. Wren v. Hoffman, 41 Miss. 61.

When there is no ambiguity, the liabilities of the parties must be settled from an inspection of the note. Bank v. Market Co., 54 P. 273 (Cal.).

If there is any condition to the note, it must appear on its face. A condition in a mortgage given to secure a note will not affect the note. Randolph on Com'l Paper, vol. 1, sec. 95, 2nd Ed.

Parol evidence is not admissible to vary or contradict the terms of a written instrument. Bank v. Foot, 12 Utah 156, 157; Wallace v. Richards, 16 Utah 52, 50 P. 804; Moyle v. Church, 16 Utah 69, 50 P. 806-808; Milch v. Armour, 56 P. 1; Connors v. Clark, 12 Cal. 168; Leonard v. Miner, 52 P. 655 (Cal.); Robinson v. Bank, 8 N.E. 583; Hypes v. Griffin, 31 Am. Rep. 71 (Ill.); Randell v. Huntington, 46 Am. 421 (Me.); Haskins v. Durn, 56 P. 953, 954 (Utah); Edgar v. Golden, 60 P. 2; Forsythe v. Kimball, 91 U.S. 291; Brown v. Spofford, 95 U.S. 508.

This rule applies in favor of parties, their privies, representatives, and all claiming under them. Moyle v. Church (supra), and cases there cited.

Parol evidence that the payee in the note told the maker at the time of signing, that he should not be called upon to pay it, is not admissible. Wright v. Remington, 41 N. J. L. 48, 54; 32 Am. St. Rep. 180; Remington v. Wright, 43 N. J. L. 451.

Or that it was understood that the maker of a note was not to be liable. Leonard v. Miner, 120 Cal. 403, cases 406 52 P. 655; Davis v. England, 141 Mass. 587; Tocoma v. Sherwood, 11 Wash. 493, 39 P. 977; Woods Co. v. Schaefer, 53 N.E. 881 (Mass.); Hall v. Bank, 53 N.E. 154 (Mass.); Davey v. Kelly, 66 Wis. 452; Dolson v. DeGavahl, 70 Tex. 620; Sturdevant v. Hull, 59 Me. 172; Connor v. Clark, 12 Cal. 168; Randolph on Com'l Paper, vol. 3, sec. 1901, 2nd Ed.

Can not add a stipulation, or take one from a contract already complete in all its parts. Fawkner v. Paper Co., 88 Iowa 169; 49 Am. St. Rep. 230; Harrison v. McCornick, 89 Cal. 327, 23 Am. St. Rep. 469; Gilbert v. Stockman, 76 Wis. 62, 20 Am. St. Rep. 23; Conant v. Banks, 121 Ind. 323, 21 N.E. 250.

The appellant claims that the evidence shows that McGurrin was a bona fide holder and purchaser of the note in suit. If this is true, then even if plaintiff purchased it after maturity, he holds it free from all defenses. Vol. 2, Randolph on Commercial Paper, sec. 987 and cases; Knight v. Kenney, 50 N.W. 912; Koehler v. Dodge, 31 Neb. 328.

The purchaser of a negotiable instrument before due, in the usual course of business, for a valuable consideration, is entitled to recover on it though he took it under circumstances that ought to have excited suspicion in the mind of a prudent and reasonable person, unless such circumstances show that he acted in bad faith or with want of honesty. Kichen v. Loudbeck, 48 Ohio St. 177, 29 Am. St. 540; Bank v. Morgan, 165 Pa. 199, 44 Am. St. 652; Richards v. Monroe, 85 Iowa 359, 39 Am. St. 305; Rosemond v. Graham, 54 Minn. 323, 40 Am. St. 336; Jennings v. Todd, 118 Mo. 296, 40 Am. St. 373.

When a party signs the contract he intended to sign without any mistake as to the facts, but in law incurs a greater liability than he expected to incur, or there was represented to exist, he is bound by the contract. Fish v. Cleveland, 33 Ill. 238; Mears v. Graham, 8 Blachf. 144 (Ind.); Martin v. Wharton, 38 Ala. 637; Upton v. Trebelcock, 91 U.S. 45.

If the consideration of the note moves to any of the parties to it, it is sufficient to charge the other makers. Bank v. Foot, 12 Utah 157-167; Wright v. McKendrick, 43 P. 977; Bowling v. Floyd, 48 P. 875; 56 Am. St. Rep. 480, note.

Messrs. Bennett, Harkness, Howat, Sutherland & VanCott, for respondents.

The rule of law is well settled that an agent or trustee can not be held upon a contract which he assumes to execute for another, unless there are apt words of personal obligation on the part of such agent or trustee in said contract. Hall v. Crandall, 29 Cal. 567; Lander v. Castro, 43 Cal. 497; Johnson v. Smith, 21 Conn. 627; Mechem on Agency, sec. 550, and cases cited under next point.

It is not true that some body must be bound by the note. This note fails to bind the ward for want of authority upon the part of the guardian to execute it, and it fails to bind the guardian not only for the reason that it does not contain words of personal obligation, but also because the payee, with a knowledge of all the facts, relied on the power of the guardian to make a binding contract for his ward, and the mistake was one of law.

Counsel upon the other side insist that somebody must be bound by the contract, that if the ward is not, the guardian must be, because otherwise no person could be charged. There are some loose expressions in the text books which seem to bear out this claim, but an examination of the authorities will show that it is without foundation. Mechem on Agency, sec. 550; 1 Am. & Eng. Ency. of Law (2 Ed.), 1127; Michael v. Jones, 84 Mo. 578, and other cases cited, supra.

There was no concealment of any fact upon the part of the guardian. All the parties to this transaction stood upon an equality so far as the facts were concerned. A petition was presented to the Probate court asking that the guardian be authorized and directed to execute the note and mortgage as and for the act of John Blazzard. The Probate court, under a misapprehension of the law, granted the order; evidently under a misapprehension of the law, the guardian signed the note, and, under the same misapprehension, it was taken by McGurrin and those for whose benefit it was made. Under such circumstances the authorities are uniformly to the effect that the guardian is not bound. Cement Co. v. Jones, 8 Mo.App. 373; Michael v. Jones, 84 Mo. 578; Humphrey v. Jones, 71 Mo. 62; 1 Am. and Eng. Ency. of Law, 1127; Johnson v. Smith, 21 Conn. 627; Taylor v. Shelton, 30 Conn. 122; Ogden v. Raymond, 22 Conn. 379; Mechem on...