B.J. Wolfe & Sons v. McKeon
| Decision Date | 21 December 1911 |
| Citation | 57 So. 63,2 Ala.App. 421 |
| Court | Alabama Court of Appeals |
| Parties | B. J. WOLFE & SONS v. MCKEON. |
Appeal from Law and Equity Court, Mobile County; Saffold Berney, Judge.
Action by B. J. Wolfe & Sons against J. T. McKeon. From a judgment for defendant, plaintiffs appeal. Affirmed.
It was admitted that the Gamma Transportation Company, by J. T. McKeon, its president, executed the note to the plaintiffs, and that the Bay City Lumber Company, by Jos. T. McKeon, president, indorsed said note, and it was further admitted that it was an accommodation indorsement, and that the Bay City Lumber Company was a manufacturing corporation organized in 1897, and had no authority to enter into such contract of indorsement. It was further admitted that the plaintiffs had filed their suit against the Gamma Transportation Company as maker and the Bay City Lumber Company as indorser, and that the Bay City Lumber Company had filed a plea setting up want of authority to enter into a contract, and that the contract was ultra vires and void, that judgment had been rendered for the Bay City Lumber Company.
McMillan & Grayson, for appellants.
Stevens & Lyons, for appellee.
The appellee was sought to be charged individually on an accommodation indorsement made in the name of the Bay City Lumber Company, a corporation, by him as its president. The indorsement did not bind the corporation because of its lack of power to become an accommodation indorser (the complaint containing allegations to this effect), and it did not purport to bind the appellee individually. The action was in contract, and, so far as the evidence showed, the facts were known to both parties. In the making and acceptance of the indorsement there was a mere mistake of law as to the capacity of the corporation in the name of which the indorsement was made to bind itself by such a contract. In case of such a mistake of law as to the liability of the principal, the fact that it cannot be bound is no ground for charging the agent, whose connection with the attempt to make the contract was obviously in his capacity as agent. Schloss & Kahn v. McIntyre, 147 Ala. 557, 41 So. 11; Ware, Murphy & Co. v. Morgan & Duncan, 67 Ala. 468; 31 Cyc. 1550.
Affirmed.
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Foster v. Featherston
...party as would enable him, equally with himself, to judge as to the authority under which he proposed to act.' " In Wolfe & Sons v. McKeon, 2 Ala.App. 421, 57 So. 63, the same principles are given application to situations. Under our decisions it is the result of a constructive fraud by wit......
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