Devendokf v. West Va. Oil

Decision Date20 November 1880
Citation17 W.Va. 135
PartiesDevendokf v. West Virginia Oil and Oil LandCompany.
CourtWest Virginia Supreme Court

(*Absent, Johnson, Judge)

1. While the courts should generally refuse to allow a recovery against one person on a negotiable instrument made by another, on proof that the latter was acting as his agent, yet a person may make the signature of another his own by using, or allowing it;o be used as such in the course of his business, and that he will and should, under such circumstances when clearly proved, be as much bound as if his own name was affixed to the bill or other negotiable instrument in question. Lucius v. Bradwdl, 5 C. B. 58; Fuller v. Hooper, 3 Gray 334; Seventh Am. Ed. of Smith's Leading Oases, 379 and cases there cited; Broun v. The Butchers' and Drover^ Bank, 6 Hill 443; Rogers v. Coit et ah, Id. 322; and see opinion of this court.

2. But the court in applying this principle should be careful to limit its application to the class of cases to which it properly belongs, and not so apply it as to ignore other well established principles applicable to negotiable instruments.

Appeal from and supersedeas to a judgment of the circuit court of the county of Wood, rendered on the 2d day of October, 1877, in a cause in said court then pending, wherein D. B. Devendorf was plaintiff, and The West Virginia Oil and Oil Land Company and others were defendants, allowed upon the petition of said company.

Hon. J. M. Jackson, judge of the fifth judicial circuit, rendered the judgment appealed from.

Haymond, Judge, furnishes the following statement of the case:

In September, 1875, D. B. Devendorf, plaintiff, filed his bill against M. V. Bentley, The West Virginia Oil and Oil Land Company, a corporation created and existing by virtue of the laws of Michigan, and G.F. H. Betts in the clerk's office of the circuit court of the county of Ritchie, in which bill the plaintiff alleges, that said West Virginia Oil and Oil Land Company is a foreign corporation and a non-resident of the State of West Virginia; that the said Oil and Oil Land Company and the said G. F. H. Betts have estate and effects belonging to them in the said county of Ritchie in this State; that said defendants are indebted to the plaintiff in the sum of $301.78 with interest thereon from the 17th day of September, 1874; that said indebtedness accrued in the following manner, viz: On the 1st day of July, 1874, the said company drew its certain draft or bill of exchange upon the said M. V. Bentley for the sum of $300.00, payable seventy-five days after the date thereof to the said G. F. H. Betts, value received, and to be charged to the account of the said company; the said draft was drawn by the said company by one B. S. Compton, the president of said company, who signed said draft with his own name as president of said company, intending thereby to make the said draft the draft of said company, and to bind it thereby.

The plaintiff alleges, that the said Compton had been previously authorized by the said company by its proper officers to draw and execute drafts, checks and other commercial paper in that form and bind the company and its funds thereby; and it was at that time, had been long previous thereto, and has been since the constant and usual custom of the said Compton to draw very many of the drafts, checks and other commercial paper of the said company in that form, simply signing them " B. S. Compton, president;" and it has long been, and was at the time of the drawing of said draft, the constant and usual custom of said company to recognize and honor the said drafts and checks drawn in that form as binding upon said company and its funds and in reality as the paper of said company itself; and that the said draft was drawn in favor of said Bettsand delivered to him in consideration of and for a large quantity of petroleum oil which had then and there been purchased by the said company of said Betts and delivered to said company, the said Compton giving said draft as the draft of said company, and said Betts receiving the same as the draft of said company, and both parties understanding that the said company was charged thereby, it being given for the purchase-money of the oil so sold and delivered to said company by said Betts as aforesaid; that afterwards and before the maturity of said draft, to wit: on the day of, 1874, the same was presented to the said

M. V. Bentley for acceptance, and the said Bentley accepted the same and in evidence thereof endorsed his name upon the face thereof; that afterwards and before the maturity thereof the said Betts endorsed and transferred the said draft to plaintiff, and on the 17th day of September, 1874, the day of the maturity of said draft, the same was duly presented to the said M. V. Bentley at his office in Detroit, Michigan, and payment thereof was demanded, which was refused, and the said draft was then duly protested for the non-payment thereof, the cost of which protest was $1.75, and the notice of said protest was duly given to said company and the said Betts. The said bill or draft with protest are filed with the bill as exhibit " A."

The plaintiff also avers, that neither the said amount of principal, charges of protest and interest thereon as aforesaid, nor any part thereof has been paid to plaintiff., but the same still remains entirely unpaid; that by reason of the execution, acceptance, endorsement and pro- test of said draft as aforesaid, the said indebtedness is a charge against the said Bentley, the said company and said Betts, and that plaintiff is entitled to recover the same against them.

The bill further alleges, that the plaintiff has sued out an attachment in the cause against the property of the defendants, and that by virtue thereof the officer in whose hands the same was placed has attached and levied upon certain property belonging to the said company situated in said county of Ritchie to satisfy the said indebtedness. The said bill or draft (exhibit "A") is as follows:

"(Dolls.) $300. Petroleum, W. Va., July 1, 1874.

Seventy-five days after date, pay to the order of G. F. Betts, three hundred dollars, value received, and charge to account of

" B. S. Compton, Pres.

" To M. V. Bentley, Detroit, Michigan:" No.

Endorsed on the face: "M. V. Bentley." Endorsed on the back:" G. F. H. Betts, D. B. Devendorf. Pay First National Bank of Detroit, or order, for collection.

" Wm. H. Conger, Cashier."

The said bill is also endorsed on the back thereof. "Protested for non-payment, September 17, 1874.

"A. G. Heghan, Notary Public''

The protest is also filed as part of exhibit "A."

It appears that an order of attachment was duly sued out in the cause against the estate of said company and Bentley and levied upon personal property of the said company, and that the company released the property attached by giving bond with security under the provisions of the law in such case. On the 18th day of October, 1875, on motion of the plaintiff by his counsel the said order of attachment was docketed. It also appears that afterwards, on the 21st day of October, 1875, at a circuit court of said county of Ritchie the defendant, the said company, appeared to the cause, and on its motion the court ordered the cause to be removed to the circuit court of Wood county to be proceeded in to final determination. On the 7th day of December, 1875, at a circuit court for said county of Wood, the cause was ordered to be docketed therein.

It appears that the defendant, the said company, filed its answer to the plaintiff's bill, in which it admits that said Bentley and Betts are non-residents of this State, and that the said company is a foreign corporation created and existing under and by virtue of the laws of the State of Michigan, and is a non-resident of this State, and that it has estate and effects in the said county of Ritchie, but denies that said Betts has, or had at the time of the commencement of this suit, any estate or effects in said county. The company also denies, that at the time of the commencement of this suit it was, or since has been or now is, indebted to the plaintiff, in the sum of $301.78, or any other sum, with interest from the 17th day of September, 1874, or for other time, and denies that said alleged indebtedness was created or accrued in the manner stated and set forth in the bill or in any other manner whatever. It admits, that on the 1st day of July, 1874, at the said county of Ritchie, the draft or bill of exchange in the bill mentioned, and bearing date on that day for the sum of $300.00 was drawn by B. S. Compton, president. The company also admits, that said Compton was its president at the time said draft or bill of exchange was so drawn, but denies that it drew the same, but says that whether said Compton signed said draft, intending thereby to make the same the draft of the company and to bind it thereby, it does not know, and therefore can neither admit nor deny the same and leaves the plaintiff to make such proof thereof, as he may be advised, but denies, that it thereby became, or was or is, its draft.

The Company denies, that said Compton had been previously or at any time authorized by it by its proper officers or otherwise to draw or execute drafts, checks or other commercial paper in that or any other form, or to bind it or its funds thereby, and says, that whether it was long previous thereto, or has been since, the custom of said Oompton to draw drafts, checks or other commercial paper in that manner, it does not know and therefore cannot state; but it denies, that it ever was the constant or usual custom of said Compton to thus draw drafts, checks or other commercial paper to bind the company, and denies, that he did thereby bind the company; and the company denies, that it was at the time of the drawing of the said draft, or at any other time, the constant or usual custom of the company to recognize or honor drafts or checks, drawn...

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