Liebscher v. Kraus

• Decision Date: 24 September 1889
• Parties: LIEBSCHER v. KRAUS ET AL.
• Court: Wisconsin Supreme Court

74 Wis. 387

43 N.W. 166

LIEBSCHER

v.KRAUS ET AL.

Supreme Court of Wisconsin.

Sept. 24, 1889.

Appeal from circuit court, Milwaukee county; D. H. JOHNSON, Judge.Frank J. Lenicheck, for appellant.

Winkler, Flanders, Smith, Bottum & Vilas, for respondents.

ORTON, J.

This action is brought on the following promissory note:

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                ¦“$637.40.¦MILWAUKEE, January 1st, 1887.¦
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Ninety days after date we promise to pay to Leo Liebscher, or order, the sum of six hundred and thirty-seven dollars and forty cents, value received. [[[Signed] SAN PEDRO MINING AND MILLING COMPANY. F. KRAUS, President.”

The plaintiff demands judgment on this note against both the corporation and Frederick Kraus, as joint makers. The defendant Kraus answered that he signed the note for the said San Pedro Mining & Milling Company, as its president, and not otherwise, and that his signature was placed upon said note for the purpose of showing who executed the same on behalf of said company, and as a part of the corporation signature to the note, and for no other purpose. The plaintiff offered to prove on the trial, substantially, that Kraus did not sign the name of the company, but signed his own name as a joint maker, intending to bind himself, and that this was according to the understanding of the parties at the time. This offer was rejected, and a verdict in favor of Kraus was directed by the court. This evidence is admissible only on the ground that there is an ambiguity in the signatures to the note. If, in the law, this signing imports that both the company and Kraus are jointly bound, or that only the company is bound, there is no ambiguity, and parol evidence to alter or vary this effect is inadmissible. But if, in the law, such signing imports only that both are bound, or the company only is bound, according to the facts and circumstances in explanation of it, and the intention or understanding of the parties, then there is an ambiguity, and the evidence was proper.

The contention of the learned counsel of the appellant that this signing imports that both are bound is inconsistent with the offer of such evidence. The learned counsel of the appellant has expressed, in his brief, the true principle as follows: “As to the question of parol evidence, the rule of law is that such evidence cannot be admitted to vary the terms of a contract, or to show contrary intention than that disclosed by the instrument, unless there is an ambiguity.” This has been often decided to be the law by this court. Foster v. Clifford, 44 Wis. 569;Cooper v. Cleghorn, 50 Wis. 113, 6 N. W. Rep. 491;Hubbard v. Marshall, 50 Wis. 322, 6 N. W. Rep. 497;Gillmann v. Henry, 53 Wis. 470, 10 N. W. Rep. 692.

There appears to be an inconsistency in cases where it is first held that such a note ipso facto binds the person who signed it with his official name, and yet that parol evidence might be given to make it certain. Heffner v. Brownell, 70 Iowa, 591, 31 N. W. Rep. 947. This case is mentioned as the only one in which it has been decided that such signing binds the person as well as the corporation; but there would seem to be somewhat of an ambiguity in the opinion. In Bean v. Mining Co., 66 Cal. 451, 6 Pac. Rep. 86, it seems to have been decided that a similar note bound the company alone, but that parol evidence was proper to explain it. No case is cited, and I can find none, where it has been decided squarely that such a note bound both the company and the person whose name appears below, with the name of his office or agency, or bound the company alone, except the case of Chase v. Pattberg, 12 Daly, 171, where the note was: “We promise to pay,” etc. “[Signed] ENGLISH S. M. Co. H. PATTBERG, Manager;” and it was decided that the company was not bound, and that Pattberg was. The authorities are generally the other way. In Draper v. Steam-Heating Co., 5 Allen, 338, the note was: “We promise to pay,” etc. “[Signed] MASSACHUSETTSSTEAM-HEATING COMPANY. L. S. FULLER, Treasurer.” In Castle v. Foundry Co., 72 Me. 167, it was: “We promise to pay,” etc., “at office Belfast Foundry Company. [Signed]...