Rendell v. Harriman

• Decision Date: 28 December 1883
• Citation: 75 Me. 497
• Parties: SAMUEL A. RENDELL v. OTIS HARRIMAN and others.
• Court: Maine Supreme Court

75 Me. 497

SAMUEL A. RENDELL v. OTIS HARRIMAN and others.

Supreme Judicial Court of Maine.

December 28, 1883

ON REPORT.

Assumpsit upon the following promissory note.

The plea was the general issue with brief statement that the instrument declared on was the note of the Prospect and Stockton Cheese Company.

(Note.)

" $246.50. Stockton, October 19, 1878.

For value received, we promise to pay S. A. Rendell, or order two hundred forty-six and fifty one-hundredths dollars, in one year from date, with interest.

Otis Harriman ) President

R. M. Trevett ) Directors of

L. Mudgett ) Prospect and Stockton

W. H. Ginn, ) Cheese Company."

The defendants offered to show by the proper record evidence, that a corporation called the Stockton and Prospect Cheese Company was duly established by law; that by its by-laws, accepted in 1875, the president and directors of said corporation were authorized to audit all accounts; that the said Harriman was its president, and the other defendants its directors, at the date of said note; that on the tenth of April, 1877, the president and directors, by a vote of said corporation were duly authorized to purchase the machinery and all other fixtures required for making cheese, and getting water into the factory, and that the plaintiff was then, and ever since has been a stockholder in said corporation.

They also offered to show by parol and record evidence, and production of the several instruments hereinafter set forth, that in pursuance of said last named vote, said officers purchased of the plaintiff, such machinery and fixtures, to the amount of six hundred thirty-four dollars and sixty-four cents; that thereafterwards in part payment therefor, the plaintiff received from R. S. Trevett, one of the defendants, and then and ever since, the treasurer of said corporation, four several sums of money as expressed in the following receipts, viz:

" $225. Stockton, June 8, 1877.

Received of R. M. Trevett, treasurer, two hundred twenty-five dollars on account of Prospect and Stockton Cheese Factory.

S. A. Rendell."

" $56. Stockton, June 23, 1877.

Received of R. M. Trevett, treasurer, fifty-six dollars on account of the Prospect and Stockton Cheese Factory.

S. A. Rendell."

" $15. Stockton, July 17, 1877.

Received of R. M. Trevett fifteen dollars on account of Prospect and Stockton Cheese Factory.

S. A. Rendell."

" Stockton, October 17, 1877.

Received of R. M. Trevett, treasurer of Stockton and Prospect Cheese Company, thirty-eight dollars on account.

S. A. Rendell, by R. B. Ames."

That these payments left a balance due the plaintiff of three hundred two dollars and sixty-four cents. Interest was added to this sum, a balance due from the plaintiff on his stock subscription was deducted leaving a balance in his favor of two hundred and ninety dollars, for which, on the tenth day of November, 1877, by vote of the directors the following order was given:

" $290. Stockton, November 10, 1877.

To R. M. Trevett, treasurer of the Prospect and Stockton Cheese Company, or his successor in office, please pay to S. A. Rendell, or order, two hundred and ninety dollars, it being for fixtures for the cheese factory.

Directors ) Adelbert Crockett,

of ) J. M. Grant,

Prospect and Stockton ) Albert Harriman,

Cheese Co. ) Alex. Black."

(On face of order.)

" Presented and accepted,

Nov. 10, 1877.

R. M. Trevett, treasurer of P. & S. Cheese Co."

That on said order, two payments were made, for which the following receipts were given:

" Stockton, January 15, 1878.

Rec'd of R. M. Trevett, treasurer of Prospect and Stockton Cheese Company, forty-seven dollars on account.

S. A. Rendell, by R. B. Ames."

" $20. Stockton, March 7, 1878.

Received of Adelbert Crockett, twenty dollars to be credited to Prospect and Stockton Cheese Factory.

S. A. Rendell."

That on the nineteenth of October, 1878, at the request of the plaintiff who claimed that he wished a note, to raise money on, the directors exchanged said order for the note in suit.

That at the annual meetings of said corporation, in April, 1880, and April, 1881, the plaintiff was duly chosen and sworn as a director of said company; that in said meetings, the reports of the president upon the financial standing of the corporation were made and duly accepted; that said reports specified the liabilities of the company, one of the items of which was " S. A. Rendell, note for $246.48," being the note in suit, and that the plaintiff attended both said meetings. That on the fifth of April, 1881, the plaintiff received a payment upon said note for which he gave the following receipt:

" Stockton, April 5, 1881.

Received of R. M. Trevett, treasurer, fourteen and forty-eight one-hundredths dollars, ($14.48) on account of the Prospect and Stockton Cheese Factory Company, to be endorsed on the note holden by me against said company.

S. A. Rendell."

By the terms of the report, if the foregoing testimony, or any part thereof, was admissible, the action should stand for trial; otherwise to be defaulted for the amount of the note and interest.

George E. Johnson, for the plaintiff, cited: Tucker M'f'g Co. v. Fairbanks, 98 Mass. 101; Stackpole v. Arnold, 11 Mass. 27; Story on Agency, § 269; Story on Notes, § 65; Sturdivant v. Hull, 59 Me. 172; Mellen v. Moore, 68 Me. 390; Hancock v. Fairfield, 30 Me. 299; Shaw v. Shaw, 50 Me. 94; City Bank v. Adams, 45 Me. 455; Nobleboro' v. Clark, 68 Me. 91; 1 Greenl. Ev. § 275; 3 Wash. Real Prop. 250, 251; 1 Pars. Bills and Notes, 102.

Joseph Williamson, for the defendants.

The severity of the rule adopted in Sturdivant v. Hull, 59 Me. 172, and older cases, upon which the decision in Mellen v. Moore, 68 Me. 390, is exclusively based, has been since much relaxed by Simpson v. Garland, 72 Me. 40, following the broader construction of § 15, c. 73, R. S., in Nobleboro' v. Clark, 68 Me. 93. It now seems to be settled that evidence of the authority of the agent, at least, can be received to show the intent of the parties to bind the principal. Therefore, the evidence produced by the defendants, upon this point, is admissible.

Where there is a doubt or ambiguity on the face of an instrument, as to whether the person means to bind himself, or only to give an evidence of debt against an institution or body of which he is a representative, parol evidence is admissible. Note to Rathbon v. Budlong, 1 Am. L. C. 614.

In Sturdivant v. Hull, the question of ambiguity was not raised, nor did the defendant offer to show any authority from his alleged principle to make the instrument declared on.

Both upon principle and authority, the note in suit has such a doubt or ambiguity upon the face, as to bring it within the foregoing rule. Upon authority, the recent case of Metcalf v. Williams, 104 U.S. 93, is directly in point. The defendant was sued personally upon a check drawn by him, as he contended, officially, as the vice-president of the Montpelier Female Humane Association. The name of the association did not appear in any place upon the check. The bank upon which it was drawn, was simply requested by two persons, signing themselves as officers, one as vice-president, and the other as secretary, to pay a certain sum. " Whether," says the opinion of the court, " they made this request as officers or as individuals is ambiguous, to say the least. It is evident that an inquiry into the circumstances of the case might render it certain which was intended." See also Mechanics' Bank v. Bank of Columbia, 5 Wheat. 326; Brockway v. Allen, 17 Wend. 40; Kean v. Davis, 20 N. J. Law, 683.

" An examination of this class of cases," says THOMPSON, C. J., in Gill v. Brown, 12 John. 388, " will show that they all turn upon the question, to whom was the credit intended to be given," or, as in Mott v. Hicks, 1 Cow. 535, " whether from anything that passed between the parties at the time, it was understood by them that the plaintiff was to rely upon the personal security of the defendant."

A note to Byles on Bills, 27, says that " when individuals subscribe their proper names to a promissory note, prima facie they are personally liable, though they add a description of the character in which the note is given; but such presumption of liability may be rebutted, as between the...