Louisville, E. & S. L. R. Co. v. Caldwell

• Decision Date: 31 October 1884
• Docket Number: 11,161
• Citation: 98 Ind. 245
• Parties: The Louisville, Evansville and St. Louis Railway Company v. Caldwell
• Court: Indiana Supreme Court

98 Ind. 245

The Louisville, Evansville and St. Louis Railway Company v. Caldwell

No. 11,161

Supreme Court of Indiana

October 31, 1884

From the Vanderburgh Circuit Court.

The judgment is affirmed, with costs.

A Iglehart, J. E. Iglehart and E. Taylor, for appellant.

A Gilchrist, J. E. Williamson and C. H. Butterfield, for appellee.

OPINION

Howk J.

The first error complained of by the appellant, the defendant below, is the overruling of its demurrer to appellee's complaint in this cause.

In his complaint the appellee, Caldwell, alleged that, on the 15th day of October, 1882, at Evansville, Indiana, James Donigan and Horace Conkey, for a sufficient consideration, drew their bill of exchange or order, directed to the Louisville, New Albany and St. Louis Railway Company, under the name of St. John Boyle, its vice-president, requiring the said railway company, by its said vice-president, to pay to the appellee $ 1,000, at sight; that, prior to the drawing of such bill or order, the said last named railway company was indebted to said Donigan and Conkey, for work done and material furnished in the construction of its railway, in an amount larger than said sum of $ 1,000.74, and said company being so indebted promised the appellee that if he would procure from Donigan and Conkey an order or bill of exchange for said amount upon the vice-president of the said company, the company would pay such order or bill; that after the said order or bill of exchange was so drawn and delivered to appellee, the said Louisville, New Albany and St. Louis Railway Company, by St. John Boyle, its vice-president, accepted such order or bill by parol, and faithfully promised to pay the same; that at the time of such acceptance, the said railway company took and kept the said order or bill of exchange, and since and still had possession thereof, unless it had lost the same; and that the following, as appellee averred and believed, was a copy thereof:

"Evansville, October 14th, 1881.

"Col. St. John Boyle, Vice-President Louisville, New Albany

and St. Louis Railway Company:

"Please pay William Caldwell one thousand and 74/100 dollars, and charge same to our account.

(Signed) "James Donigan.

"Horace Conkey."

That after said order or bill of exchange was so accepted by said last named railway company, the said company, by virtue of the statute in such case made and provided, and of proper proceedings had thereunder, was duly consolidated with the Evansville, Rockport and Eastern Railway Company, and the appellant was the company formed by such consolidation; that thereupon the appellant became liable for the debts of the Louisville, New Albany and St. Louis Railway Company; and that although the last named company and the appellant had often promised to pay the said order, yet the same, with interest thereon from November 1st, 1881, remained due and wholly unpaid. Wherefore, etc.

The first objection urged to the sufficiency of this complaint is thus stated, in argument, by the appellant's learned counsel: "The order reads, 'Col. St. John Boyle, Vice-President,' etc. All other matters conceded, this was the individual acceptance of Col. Boyle, and not the acceptance of the company. In legal contemplation, the order was upon Col. St. John Boyle, the words, Vice-President, etc., annexed to his name, are merely descriptio personoe; they might be rejected as surplusage, and exert no controlling effect. Jackson School Tp. v. Farlow, 75 Ind. 118, and cases there cited. Such words serve only to identify the party. They indicate the identity of Mr. Boyle to the same extent, and no greater, than the military prefix to his name."

This view of the question would have been presented more forcibly, and, perhaps, more favorably for the appellant, by a denial under oath of the alleged acceptance of the order or bill in suit, than by its demurrer to appellee's complaint. Indeed, we think, that the question discussed by appellant's counsel, under their first objection to the sufficiency of the complaint, is not presented for decision by the demurrer thereto. The complaint alleges, and the appellant's demurrer admits, that the order or bill was drawn upon the Louisville, New Albany and St. Louis Railway Company, under the name of St. John Boyle, its vice-president, by certain creditors of such company, requiring it by that name to pay the appellee the sum of money named therein, at sight; and that after the order or bill was so drawn and delivered to appellee, the railway company, by St. John Boyle, its vice-president, accepted the order or bill by parol, and faithfully promised to pay the same. Under these allegations of the complaint, admitted by the appellant to be true as the case is presented by the first error complained of, and in view of the recognized law of this State applicable to the case, it will not do to say that the order or bill sued upon is "the individual acceptance of Col. Boyle, and not the acceptance of the company." It can hardly be questioned, in this State, that an order or bill of exchange may be drawn upon a corporation, by a name other than its corporate name, and that if the corporation accept such order or bill, either orally or in writing, the acceptance will be binding upon and may be enforced against such corporation.

In Gaff v. Theis, 33 Ind. 307, the promissory note for a debt of a corporation had been executed as follows: "C. C. Kelsey, Ass't Sec'y Aurora Brewing and Malting Company." The point was made there, as here, that the note was the individual note of Kelsey, and that the words annexed to his name were merely descriptio personoe. The court there said: "Then it is argued that the note was not the note of the corporation, though expressly alleged (and distinctly proved) to be such; but that upon its face it appeared to be the note of C. C. Kelsey, and that the superadded words, 'Ass't Sec'y Aurora Brewing and Malting Company,' were merely a description of the person. A party may, we suppose, execute a note by any name, other than his own, and yet be bound by it, and this must apply as well to a corporation as to a natural person." So, in Kenyon v. Williams, 19 Ind. 44, suit had been brought against Kenyon and others upon a promissory note, executed only by "S. N. Chappel, Agt.," and the demurrer of all the defendants, except Chappel, to the complaint had been overruled, and this ruling was assigned here as error. In regard to this error the court there said: "The note purports to bind no one but Chappel. The addition of 'Agt.,' appended to his signature, does not add to, or vary, its legal effect. The question then arises, whether extrinsic matter can be averred and supported by parol proof, connecting other parties with the note, and making them liable thereon as makers." This question is then considered by the court, and the conclusion is reached that, as a general rule, in all cases where an agent has contracted within the sphere of his agency, and the principal is not, by the form of the contract, bound at law, a court of equity will enforce it against the principal, upon principles ex oequo et bono. And the court there held that as the courts of this State are authorized to administer equitable as well as legal relief, the demurrer to the complaint was correctly overruled.

In Vater v. Lewis, 36 Ind. 288 (10 Am. R. 29) the suit was upon a promissory note made payable to the order of "C. W. Smith, Treasurer of the I. M. B. Co.;" and it was held that the words "Treasurer," etc., in the note were not merely a description of the person, but of the office he held in the corporation, indicated by the letters "I. M. B. Co." The court said: "We have concluded that the contract in the case before us was with the corporation, and not with Smith as an individual. We are quite well aware that there are authorities against...