Smith v. Alexander

• Decision Date: 31 October 1860
• Citation: 31 Mo. 193
• Parties: SMITH et al., Appellants, v. ALEXANDER, Respondent.
• Court: Missouri Supreme Court

31 Mo. 193

SMITH et al., Appellants,

v.ALEXANDER, Respondent.

Supreme Court of Missouri.

October Term, 1860.

1. Where a written contract not under seal is executed by an agent, it is not indispensable, in order to bind the principal, that it should be executed in the name and as the act of the principal; it will be sufficient if, upon the whole instrument, it can be gathered, from the terms thereof, that the party describes himself and acts as agent and intends thereby to bind the principal and not to bind himself.

2. The addition to the name signed to a contract of the official character of the person so signing is such an indication of the representative character of such signer as will warrant a resort to parol evidence to prove extrinsic circumstances, such as to whom the consideration passed and credit was given, the agent's authority, &c.--by which the respective liability of the principal and agent may be determined.

Appeal from St. Louis Court of Common Pleas.

McClellan, Moody & Hillyer, for appellants.

G. P. Strong, for respondent.

EWING, Judge, delivered the opinion of the court.

This was an action on the following instrument: “$500. St. Louis, Mo., July 22, 1855. Ninety days after date, I promise to pay to the order of Messrs. Smith & Co., five hundred dollars for value received, negotiable and payable without defalcation or discount. [Signed] J. H. Alexander, Treas'r Ohio & Miss. R. R. Co.”

On the trial, the plaintiff having read the note in evidence, the defendant introduced testimony showing that he was the treasurer of the Ohio and Mississippi Railroad, and tending to prove that the note sued on was given by him in liquidation of an indebtedness due to the plaintiffs from that company, and that defendant received no consideration for the giving of said note. The ruling of the court was excepted to by the plaintiff in admitting this evidence, as also in giving and refusing instructions.

The general rule usually laid down respecting sealed contract is not applicable in its full extent to written contracts not under seal. In reference to these, it is said to be clear from the authorities that it is not indispensable, in order to bind the principal, that such a contract should be executed in the name and as the act of the principal. It will be sufficient if upon the whole instrument it can be gathered, from the terms thereof, that the party describes himself and acts as agent and intends thereby to bind the principal and not to bind himself. (Story, Ag. § 160.)

And in reference to corporations, (as to which the tendency of modern decisions, it would seem, is to relax somewhat the strict rules on this subject,) it is said that if, from the contract itself, or from this coupled with the conduct of the parties thereto, it appears that credit was given, not to the agent but to the corporation, and it appears to have been the intent of the parties that the corporation should be bound, the corporation is alone liable, irrespective of the particular form of the...