Belmont Dairy Co. v. Thrasher

• Decision Date: 02 December 1914
• Docket Number: 29.
• Citation: 92 A. 766,124 Md. 320
• Parties: BELMONT DAIRY CO. v. THRASHER.
• Court: Maryland Court of Appeals

92 A. 766

124 Md. 320

BELMONT DAIRY CO. v. THRASHER.

No. 29.

Court of Appeals of Maryland

December 2, 1914

Appeal from Circuit Court, Montgomery County; Edward C. Peter and Glenn H. Worthington, Judges.

Action by B. Albert Thrasher against the Belmont Dairy Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Argued before BOYD, C.J., and BRISCOE, BURKE, THOMAS, PATTISON URNER, and CONSTABLE, JJ.

R. E L. Smith, of Washington, D. C., for appellant. Albert S Brown, of Frederick (Thomas Dawson, of Rockville, on the brief), for appelle.

BOYD C.J.

The appellee sued the Belmont Dairy Company and Edward C. Thomas on the following promissory note:

"$394.30. Washington, D. C., Nov. 18, 1912.

Three months after date we promise to pay to the order of B. A. Thrasher, three hundred ninety-four and 30/100 dollars, for value received with interest from date at rate of 6 per cent. per annum until paid. Negotiable and payable at United States Trust Company, Fourteenth and U Streets, N. W.

Belmont Dairy Co., Inc.

E. C. Thomas."

The Belmont Dairy Company was adjudicated a bankrupt, and, the case against it having been non prossed, the suit proceeded against Edward C. Thomas alone. There was a verdict against him for $426.29, and this appeal was taken from the judgment rendered thereon. He filed the general issue pleas of never promised and never indebted, and a third plea, which on motion of the plaintiff was stricken out. In addition to the ruling on that motion, the appellant complains of the action of the court in excluding certain testimony offered by him and in granting the plaintiff's second and third prayers, rejecting the defendant's first prayer and amending his second.

The theory of the defense is that the defendant, who was president of the dairy company, signed his name on the note to authenticate the signature of the corporation, and did not sign it with the intent to make himself a party to the note or to make himself liable thereon. The testimony shows that the dairy company was indebted to the plaintiff in the sum of $394.30, for cream furnished it by him, and on the 8th of November, 1912, John Thrasher, a brother of the plaintiff, called at the office of the company in Washington for the purpose of getting a settlement of plaintiff's account. It will be well to keep before us the parts of the testimony giving the versions of the respective parties of what occurred at the interview held at that time. Mr. Thomas' evidence is thus stated in the record:

"Witness told Mr. Thrasher that the corporation was not in a position to pay him cash, but that it would give him a note; that the winter business was its best; and that from that time on he thought the company would be able to make him monthly payments for further shipments of cream. After some further talk, Mr. Thrasher agreed to take a note and went away. Nothing was said about whose note it should be, and nothing was said about witness joining with the corporation upon the note or about other security for the payment of the note. That witness, as president of the company, had authority to execute notes for the corporation, and some time thereafter prepared the note in the form shown and sent it to the plaintiff, but he has no recollection of how he sent it. That the note was signed by impressing the name of the corporation in the place for signature by the use of a rubber stamp, and, to authenticate the signature of the corporation, witness signed his name under the rubber stamp impression. That he did not sign his name with the intent to make himself a party to the note, or liable thereon."

On cross-examination, he said:

"That he did not tell Mr. Thrasher that the note would he paid in full when it came due; that Mr. Thrasher did not decline to take the note of the Belmont Dairy Company; that the plaintiff resumed the shipment of cream before the note was sent to him, shipment having been stopped by the plaintiff a few days prior to November 8th; and that he knew the company was in financial difficulty at the time. Would have given him a check, but on looking at his bank account found he had not funds to make a substantial payments."

John Thrasher said be went to Washington at the request of the plaintiff.

That he "went to get money. It was cash he wanted. Mr. Thomas said he could not give him cash. That the company was short and offered him a note. He objected and declined to take a note, but Mr. Thomas said if he would resume shipment he would send him a check or a note that would be paid; that was all he said. After some further conversation, finding that was the best he could do, he agreed to take it. Mr. Thomas said if plaintiff would resume shipping they would be in a position to pay monthly thereafter, but the cream subsequently shipped was never paid for. And upon cross-examination that he had related all that occurred as far as he can remember; that he went to the Belmont Dairy Company's office to get cash, but as he could not get cash, he agreed to take a note, because that was the best he could do; that he went home and reported to plaintiff, and shipments were resumed."

The plaintiff (appellee) testified:

"That his brother reported the interview with Mr. Thomas, and he resumed shipment, and about ten days thereafter he received the note sued on by mail; that it was inclosed in a piece of blank paper, in an envelope, without any writing; has had no communication from the defendant about the note, and no interview about it with him. Took the note for what it appears to be on its face."

After stating in chief what we have quoted above, the defendant testified that the company had been doing business with the plaintiff for many years, he thought about 16 years, and offered to prove that the plaintiff had accepted other notes of the corporation. An objection to that evidence was sustained, and the action of the court is presented by the first bill of exceptions. The proffer was not to prove that the plaintiff had accepted notes of the company in the form of the one sued on; but, regardless of that, proof of the acceptance of notes of the company in the past would not have reflected upon the issues in this case. The record shows that the company was not only in financial difficulty, which Mr. Thomas admitted was known to him, but it was declared a bankrupt on February 6, 1913, which was before this note matured. The plaintiff might therefore have been willing to accept the company's notes in former years, while he would not then have done so without security, and the inference to be drawn from the evidence is that something occurred at the interview mentioned which induced the plaintiff to resume shipments of cream. So, without discussing it further, there can be no doubt about the correctness of the court's ruling in the first bill of exceptions.

The third prayer of the plaintiff, "that the legal effect of the promissory note offered in evidence is prima facie to make the defendant Thomas personally liable as maker," will first be considered. That prayer announced a correct proposition of law. As we have seen from the copy of the note above set out, the defendant did not affix the word "president" to his signature, or in any way show on the note that he signed as an officer or agent of the company, but he simply signed, below the name of the company, his own name, and that, too, to a note which read, "We promise to pay," etc. If defendant's intention had admittedly been to bind himself personally, his signature would have been just as it was on this note, and, although it is, of course, not conclusive, the use of the expression "we promise" may be said to have been at least suggestive of such an intention, when considered in connection with the signatures.

We are not called upon to determine whether there would have been any difficulty in holding the company liable on the note by reason of the use of the rubber stamp, instead of the name being written in ink, as the judgment is against Mr. Thomas and not against the company; but the terms of the note and the signature of the defendant are at least sufficient to make him prima facie liable. In Haile v. Peirce, 32 Md. 327,...