Germania Nat. Bank of Milwaukee v. Mariner

• Decision Date: 07 November 1906
• Citation: 129 Wis. 544,109 N.W. 574
• Parties: GERMANIA NAT. BANK OF MILWAUKEE v. MARINER ET AL.
• Court: Wisconsin Supreme Court

129 Wis. 544

109 N.W. 574

GERMANIA NAT. BANK OF MILWAUKEE

v.MARINER ET AL.

Supreme Court of Wisconsin.

Nov. 7, 1906.

Appeal from Circuit Court, Milwaukee County; Orren T. Williams, Judge.

Action by the Germania National Bank of Milwaukee against John W. Mariner and another. From a judgment in favor of plaintiff, defendant Mariner appeals. Reversed and remanded, with instructions to dismiss the complaint.Van Dyke & Van Dyke, for appellant.

Austin, Fehr & Gehrz, for respondent.

WINSLOW, J.

The plaintiff sued the appellant and the Northwestern Straw Works as makers of the following promissory note:

“Milwaukee, January 6, 1905.

Four months after date the Northwestern Straw Works promise to pay to the order of F. G. Bigelow ($20,000) Twenty Thousand Dollars at the First National Bank, Milwaukee. Value received.

The Northwestern Straw Works,

E. R. Stillman, Treas.

John W. Mariner.”

The defendants answered jointly, alleging that the note was the note of the Northwestern Straw Works (a corporation) alone, and was signed by Mariner as secretary of the corporation and not in his individual capacity. The case was tried without a jury, and the evidence showed without dispute that the plaintiff purchased the note from the payee in due course and for value before due; that it represented a loan made to the corporation defendant alone; that the by-laws of the corporation required its notes to be signed by two officers, either the president or treasurer and the secretary; that Mr. Stillman was the treasurer of the corporation and Mr. Mariner the secretary; that Mr. Mariner signed his name thereto simply for the purpose of making it the note of the corporation, and not intending to bind himself, but neglected to add the word “Secretary” to his name; that the plaintiff had no information as to the capacity in which Mariner signed the note, further than that afforded by the note itself; and that the defendant corporation went into bankruptcy after the maturity of the note and made a composition with its creditors under which there was paid to the plaintiff on the note $4,020. There was no proof that the corporation had ever held out to the plaintiff or the public that Mr. Stillman or any single officer had authority to execute notes for it. Upon these facts the court, upon motion, ordered the complaint amended so as to charge Mr. Mariner as indorser, found him liable as such, and entered judgment against him for the balance due upon the note, from which judgment Mariner appeals.

The question as to the liability of Mariner under the facts stated is certainly not free from difficulty. The general rule is well supported that when it clearly appears, either in the body of the note or by appropriate words added to the signatures themselves, that a corporation is the party making the promise, there is no individual liability on the part of the signers. 1 Randolph on Com. Paper (2d Ed.) § 135. In an early case in this state, however (Dennison v. Austin, 15 Wis. 334), this principle was, in effect, modified, as it is modified in some other jurisdictions, by a proviso to the effect that, if the signers in fact had no authority to bind the corporation, they bind themselves individually. The negotiable instrument law (chapter 356, p. 682, Laws of 1899) recognizes both the general principle and the proviso, in section 1675-20 (page 694), in these words: “Where the instrument contains or a person adds to his signature words indicating that he signs for or on behalf of a principal, or in a representative capacity, he is not liable on the instrument, if he was duly authorized.” As it appears without dispute in the present case that the signers of the note were authorized to execute it on behalf of the corporation, the proviso need not be considered. In the present case the body of the note declares that the “Northwestern Straw Works” (presumably a corporation) is the promisor. It does not say “I” or “we” promise to pay, but specifically names a corporation as the promisor. Hence, so far as Mr. Stillman is concerned, the note itself makes it clear that he signed only on behalf of the corporation. Parol evidence would not be admissible to show that he signed as a joint maker. Liebscher v. Kraus, 74 Wis. 387, 43 N. W. 166, 5 L. R. A. 496, 17 Am. St. Rep. 171. The same claim is forcibly made as to the signature of the defendant Mariner, and it is not without authority to support it. Shaver v. Ocean Mining Company, 21 Cal. 45.

We are not inclined, however, to rest the case upon any doubtful proposition. Granting that the section does not apply as to the signature of Mr. Mariner, we think it would be conceded that upon its face it is ambiguous so far as Mr. Mariner is concerned. The instrument says that the “Northwestern Straw Works” promises to pay. The signature of Mariner is the bare signature of an individual. This is certainly not usual, and...