bound upon them accordingly. The rule excluding parol

" evidence to charge an unnamed principal as a party to negotiable paper is derived from the nature of such paper, which being made for the purpose of being transferred from hand to hand, and of giving to every successive holder as strong a claim upon the original party as the payee himself has, must indicate on its face who is bound for its payment; for any additional liability not expressed in the paper would not be negotiable. The rule as to public agents is hereinafter considered. 3

$ 304. Third: It is not absolutely necessary that the principal's peculiar name should be used; but he may, by adoption, use that of his agent, or his agent, by his authority, may use his own name for his principal's.—Individuals, as well as corporations, may sometimes be held liable upon negotiable and other contracts, executed and entered into under a name

name or style different from that which usually belongs to and is used by them, and in which their own proper names or signatures do not appear at all. But such liability exists only where it is affirmatively and satisfactorily proved that the name or signature thus used is one which has been assumed and sanctioned as indicative of their contracts, and has been, with their knowledge and consent, adopted as a substitute for their own names and signatures in signing bills and notes, or executing other written contracts. In such cases the adopted name is in law equivalent to the actual name of the party.“

* Lerned v. Johns, 9 Allen, 419. In this case the contract was signed B. by C., and parol evidence was admitted to show that B. was only agent of A., although there was no intimation of it on the contract, Hoar, J., saying : “ The doctrine is well settled in England, that when a written contract, not under seal, is made by or with an agent, the principal, although undisclosed, may sue or be sued upon it, except in the case of commercial paper.” Kenworth v. Schofield, 2 B. & C., 945; Higgins v. Senior, 8 M. & W., 834; see also Williams v. Bacon, 2 Gray, 387; Dykers v. Townsend, 25 N. Y., 57.

See article in Albany Law Journal, Vol. 13, No. 19, May 6, 1876, p. 323. $ $ 443 et seg.

"Brown v. Parker, 7 Allen, 337. See also Bank of Rochester v. Mintent, i Den., 405; Bartlett v. Tucker, 104 Mass., 338; and see especially Minor v. Mechanics’ Bank of Alexandria, i Peters, 46, and chapter XIII, on Corporations, $ 3; $ 399 et seq., 363.

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$ 305. Fourth : If the agent sign a note with his own name, and discloses no principal, he is personally bound.-The party so signing must have intended to bind somebody upon the instrument, and no promisor but himself thereon appearing, it must be construed as his note or as a nullity." And though he term himself “ agent,” such suffix to his name will be regarded as a mere descriptio persona, or as an earmark of the transaction, and may be rejected as surplus

age.

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And this principle applies although it could be proved that the payee knew of the agency when the note was made, and it was understood that the principal, and not the agent, should be bound, for such evidence would vary the terms of the written note. But under such circumstances, if the note were not paid the principal might be sued upon the original consideration. However, if the payee, with

" full knowledge of the agency and of the principal's liability, and relying solely on the agent's credit, took his individual note, the principal can not be resorted to at all. In a late case in New York the note was signed simply, “ J. S. M., Agent.” It was alleged to have been given for goods sold by the defendant, a lady, probably the agent's wife, and recovery against the alleged principal was sustained. This

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* Arnold v. Stackpole, 11 Mass., 27 ; Sharpe v. Bellis, 61 Penn. St., 71; Bedford, Conn., Ins. Co. v. Covell, 8 Metc., 442; 1 Parsons N. & B., 93; Story on Notes, $ 68; see Lyons v. Miller, 6 Grat., 440 ; Poole v. Rice, 9 W. Va., 73.

* Toledo Iron Works v. Heisser, 51 Mo., 128; Collins v. Buckeye State Ins. Co., 17 Ohio St., 215; Bryson v. Lucas, 84 N. C., 680; Arnold v. Sprague, 34 Vt., 409; Graham v. Campbell, 56 Ga., 258 ; Hall v. Bradbury, 40 Conn., 32; Williams v. Robbins, 16 Gray, 77; see post, $8 398, 419; Anderson v. Shoup, i Ohio N. S., 125; Kenyon v. Williams, 19 Ind., 45. Text cited with approval in Anderson v. Pearce, 36 Ark., 293, in which case the note was expressed on its face to be for “balance due P. & S. for work done on Hazel Valley School House,” and was signed “O. I. A. and S. J. H., committee.”

* i Parsons N. & B., 93 ; Story on Notes, $ 68.

* Pentz v. Stanton, 10 Wend., 271, the court saying: “It was a question for the jury to decide whether the goods were sold exclusively upon the credit of West (the agent) and of the bill, or not.” Query, see Paige v. Stone, 10 Metc., 169.

* Hyde v. Page, 9 Barb., 151 (1850); Paige v. Stone, 10 Metc., 169.

• Moore v. McClure, 15 N. Y. S. C. (8 Hun), 558. Talcott, J. : “The fact that the name of the principal does not appear on the face of the note is not,

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decision is in conflict with the general current of authority.' The true principle has been thus stated by the U. S. Supreme Court : “ Parol evidence can never be admitted to exonerate an agent who has entered into a written contract in which he appears as principal, even though he should propose to show, if allowed, that he disclosed his agency, and mentioned the name of his principal at the time the contract was executed." ?

$ 306. Fifth : If the agent exceed his authority in signing his principal's name, or signs his own professedly as binding his principal, who is named, he is not bound as a party to the paper itself, but only in an action of tort for falsely assuming authority to bind another.—Upon this proposition the authorities are not uniform, but the weight of reason, if not of authority, is, we think, clearly in its favor, both in England and in the United States. Where simply the principal's name is signed, without any profession of agency, it is patent that there is nothing in the instrument which could possibly import a liability upon the agent ;' but where both the agents and the principal's names appear, there is more room for division of opinion. By some authorities it is contended that as both names are on the paper, and the principal's is not rightfully there, the agent should be bound."

under the modern decisions in this State, at all conclusive. If it was intended to be given in the business of the principal, was in fact so given, and with due authority, it is binding on the principal, and all this is matter of evidence, all covered by the averment that it is the note of the principal.” See ante, $ 303, note.

See ante, $ 303. * Nash v. Towne, 5 Wall., 689; see also Magee v. Atkinson, 2 M. & W., 440; Hypes v. Griffin, 89 Ill., 134. But see Metcalf v. Williams, U. S. S. C., vol. 3, Morrison's Transcript No. 2, p. 148.

: Wilson v. Barthrop, 2 M. & W., 863. * Edwards on Bills, 80, 90; Chitty (*35), 47 ; Pitman v. Kintner, 5 Blackf., 251 ; McClure v. Bennett, i Blackf., 189; Byars v. Doore, 20 Mo., 284 ; see also note to Thomas v. Hewes, 2 C. & M., 530. In Ormsby v. Kendall, 2 Ark., 338, the note began, “ Steamer Tecumseh and owners promise," and was signed " F. C. Kendall.” Held, he was bound unless he had authority to bind owners. In Dusenbury v. Ellis, 3 Johns Cas., 70, the note began, “ I promise," and was signed “ For P. S.-G. D. attorney." Held, G. D. was bound, the court say

307. But, on the other hand, it is answered, that while the agent's name is on the paper, it is there in a form which expressly negatives any obligation upon him, and professes to assert the obligation of another. And it is only for such wrongful profession that an action may be maintained. This is the philosophical and correct view, as we think. The agent can not be estopped to deny personal obligation as a party to the instrument, since he never held himself out as such.1 So, if a party sign a fictitious name, and it is not one which he adopts as his, he is only liable, in a special action on the case. It results from these principles, that if the agent had no authority to bind the principal, and

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ing: "If a person, under pretence of authority from another, executes a note in his name, he is bound; and the name of the person for whom he assumed to act will be rejected as surplusage." In Rossiter v. Rossiter, 8 Wend., 494, where the agent, exceeding his authority, signed a note "H. R. P., by his attorney, W. S. Rossiter," he was held bound. To same effect is Palmer v. Stephens, 1 Den., 480. "These cases," it is said in American Leading Cases, vol. 1 [*637], “may fairly be considered as overruling Ballou v. Talbot, 16 Mass., 461." But that case seems to stand quite firm as a precedent, notwithstanding.

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1 Bartlett v. Tucker, 104 Mass., 338 (1870); Draper v. Mass. Steam, etc., Co., 5 Allen, 338; Abbey v. Chase, 6 Cush., 54; Jefts v. York, 10 Cush., 392; Ballou v. Talbot, 16 Mass., 461; Sheffield v. Larue, 16 Minn., 388; Hall v. Crandall, 29 Cal., 572; Duncan v. Nells, 32 Ill., 542; McHenry v. Duffield, 17 Blackf., 41; Johnson v. Smith, 21 Conn., 627; Taylor v. Shelton, 30 Conn., 122 (agent can only be bound on instrument where there are apt words to express his liability); Hopkins v. Nehafy, 11 Sergt. & R., 129; Polhill v. Walter, 3 B. & Adol., 114, special action sustained; Jenkins v. Hutchinson, 18 L. J. Q. B., 276 (1849), Lord Denman, C. J., said: “In the absence of any direct authority, we think that a party who executes an instrument in the name of another, whose name he puts to the instrument, and adds his own name only as agent for that other, can not be treated as a party to that instrument, and be sued upon it, unless it be shown that he was the real principal." I Parsons N. & B., 121, 122; Chitty on Bills (13th Am. ed.) [*35], 47; Thomson on Bills, 155. The contrary doctrine that once prevailed in New York (see note, ante) is now doubted; see White v. Madison, 26 N. Y., 116; Walker v. Bank, 5 Seld., 582.

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" Bartlett v. Tucker, 104 Mass., 339, Gray, J.: “In Long v. Colburn, 11 Mass., 97, it was held that upon a promissory note beginning, For value received, I promise to pay,' and signed Pro William Gill, J. S. Colburn,' no action would lie against Colburn; and the court said: "The plaintiff's remedy is against Gill, if Colburn had authority to make the promise for him; and if he had not, a special action on the case might make Colburn answerable.' In Ballou v. Talbot, 16 Mass., 461, the same point was adjudged; and it was held that upon a note signed Joseph Talbot, 2d, agent for David Perry,' no action would lie against Talbot, although the jury found that he was not authorized to sign the note as agent for Perry. So where a note, purporting on its face to be the note of the pastor and deacons of the First Freewill Baptist Church in Lowell, was signed S. D. York, agent for the First Freewill Baptist Church in Lowell,' it was held that no action could be maintained on the note against York. Jefts v. York, 4 Cush., 371.”

there are no apt words to charge him personally, the instrument is void, as neither he personally, nor the assumed principal, is a party to it."

$ 308. Still, there are some cases in which the authority of the agent to bind the principal may enter into the inquiry as to the agent's liability ; for if there be an ambiguity in the phraseology of the note, so that it can not be definitely determined from its face whether it be that of principal or agent, in that case, as the principal could not be bound, an intention of the agent to bind himself might be inferred. If the principal ratify the agent's act, an action against the agent in tort can not be maintained, his previous want of authority being thereby entirely cured. The doctrines applicable to public agents are elsewhere considered.?

$ 308a. Liability of undisclosed principal.-An undisclosed principal, as we have seen, can not be held as a party to a bill or note. But there is a principle of the law of princi pal and agent important to be remembered in this connection: that when an agent acts without disclosing that he is an agent, or when acting as a known agent does not disclose the name of his principal, then, although credit is given to the agent, it is not an exclusive credit. And when the principal is discovered, he may be held for the debt, provided that nothing has in the meantime passed between the principal and agent to alter the state of their accounts or otherwise to operate injuriously to the principal if he has acted in the confidence that exclusive credit was given to the agent; and provided also that there was no laches on the part of the creditor.4

+ See McClure v. Bennett, 1 Blackf., 190; Taft v. Brewster, 9 Johns, 334 Delins v. Cawthorne, 2 Dev., 90; Bryson v. Lucas, 84 N. C., 680.

Sheffield v. Larue, 16 Minn., 388; but see contra. Rossiter v. Rossiter, 8 Wend., 494.