Schuling v. Ervin , 185 Iowa 1 ( 1918 )

Salinger, J.

I. The signature to the promise to pay was in the following form:

“Trustees of the Second Christian Church.

“I. S. Ervin,

“R. C. Moulton, Chairman,

“M. L. Everett.”

Before considering what is the liability, where one signs, say, John Smith, Trustee, it may well be said to be doubtful whether the individual signatures make claim to a trustee relation to anyone. Nothing indicates such a’claim on part of Ervin, unless it may be inferred from mere juxtaposition — from the fact that his signature appears immediately .following “Trustees of the Second Christian Church.” In the line following the Ervin signature, Moulton designates himself as “Chairman.” The signature of Ervin is as much in juxtaposition with that -of Moulton as it is with the phrase “Trustees of the Second Christian Church.” Add that Moulton designates himself as “Chairman,” and the two facts make- at least as much of an ar-. gument for holding that, though Moulton resorted to descriptive words, Ervin desired none, as the one fact of signing as close to the first line as to the Moulton line makes for claiming that Ervin designated himself as one of the trustees of said church.

Moulton uses the .descriptive word “Chairman.” So doing is as much support for arguing that he intended no description other than “Chairman,” as for the argument that one who finds the signature “Trustees of the Second Christian Church” in the first line, I. S. Ervin, without-more, in the second line, and then signs himself, and adds “Chairman,” intended to assert that he was a trustee of said church.

Everett is the last signer, and uses no words of description. “Trustees of the Second Christian Church” is the first line; I. S. Ervin, without any descriptive words, the second line; B.'C. Moulton, with -the descriptive word “Chairman,” the third line. Why does- the fact that Everett signed last of all, without words of description,, with these things preceding his signature, make any evidence that he asserted himself to be'one of the trustees of said church?

II. But this may all be passed as not controlling. And it may be assumed, for the sake of argument, .that the signatures are, in effect, what they would be if they were in • the following form: •

l. bills and ingEfn' representative capacity. “Trustees of the Second Christian Church, I. S. Ervin, B. C. Moulton, Chair- . ■ , _ _ , , ,, man, M. L. Everett.”

Will such signature .avoid personal-liability? It may be granted there is much judicial conflict on the question; but it is everywhere agreed that, if the signature had been what has just been assumed, the signers will be personally bound, unless their signature is a sufficient indication of what principal the signers were acting for. Indeed, that is the effect of Section 3060-a20, Code Supplement, 1913.

2. evidence : parol as affecting writing. It admits of grave doubt whether parol is admissible to show that the signers intended to bind some principal not disclosed on the face of the instrument. We may pretermit citation of the many cases that- raise this doubt, because it is probably true that such evidence will be admitted, as between the original parties. See Megowan v. Peterson, 173 N. Y. 1. We think that the case states the law, if limited to such proof as stops short of varying by parol whatever is affirmatively1 expressed in the writing, and that it may not be carried to the point of, say, showing by parol that the disclosed principal was not the principal, and that someone else was. Many other illustrations could be indulged in, but it is unnecessary. But, of course, such testimony accomplishes nothing, unless it appear that the intent of the maker was in some manner'made known to the payee, before he parts with his money in reliance upon the paper. We shall speak later to whether plaintiff had actual notice that the individual signers were acting for a disclosed principal. Assume, for the present, she had no notice except what the face of the note imparted, and keeping in mind that,' if the signatures had been qualified by nothing but words such as “agent,” or “trustee,” the signers would be personally liable (see Stevenson v. Polk, 71 Iowa 278, at 285, where the signature was, “J„ S. Polk, Trustee,” and which case approves many that precede it, and in its turn has never been seriously challenged), and we have the question whether the signature at bar disclosed more than the equivalent of sighing, and adding descriptive words, such as “Chairman” or “Trustee” or “Agent.” We have elsewhere assumed, for the sake of argument, that the signature is equivalent to “One of the Trustees of the Second Christian Church, I. S. Ervin, E. C. Moulton, Chairman, M. L. Everett.” Such qualifying words have more effect, perhaps, than the mere signing of one’s name, and adding some such word as “Trustee.” Be that as it may, if any principal is disclosed by such signature, is it “The Second Christian Church?” Does that, of itself, disclose who the principal is ? Would not further inquiry be necessary, before it would be known what principal is disclosed? Could plaintiff have maintained suit on this note by merely making “The Second Christian Church” the defendant? If she had so impleaded, upon whom would she have served original notice, without aid beyond the statement that the signer was “The Second Christian Church?”

2-a

As said, it is universally agreed that these signers were bound, unless a principal was disclosed. Let us test whether there was sufficient disclosure, by the case law.

In Schumacher v. Doland, 154 Iowa 207, Eenihan, who followed his signature by “Pastor of St. Francis Church,” was held to have given a personal obligation. Why is “Pastor of St. Francis Church” less a disclosure of a principal than “Trustees of the Second Christian Church?”

In Heffner v. Brownell, 70 Iowa 591, the signatures were:

“Independence Mfg. Co.

“B. I. Brownell, President.

“D. B. Sanford, Secy.”

It was held this did not show Brownell signed as president of the Manufacturing Company, and was, therefore, personally bound. Why does not writing B. I. Brownell, President, in the line next to Independence Manufacturing Company, prove Brownell signed as president of the company; as much as signing I. S. Ervin, without the designation “President,” next to the line “Trustees of the Second Christian Church?” If signing as Brownell did does not claim he signed as president, why does signing as Ervin did make a claim he signed as one of the trustees?' And so of Everett. Neither Ervin nor Everett had either the aid of a descriptive word, like “president.” If signing “B. I. Brown-ell, President,” in the line next to “Independence Manufacturing Company” does not constitute a signing as president of that company, why does the signature “R. C. Moulton, Chairman,” in the second line after “Trustees of the Second Christian Church” assert he signed as one of said trustees? The Heffner case, in holding the signers personally, held, among other things, that “Independence Mfg. Co.” was not a sufficient disclosure of a principal. Why is signing “Independence Manufacturing Company,” followed by “B. I. Brownell, President, D. B. Sanford, Secretary,” not as much a disclosure of who the principal of Brownell and Sanford is, as is a signature which is not the signature of a church at all, and which, as against “Independence Manufacturing Company,” is “Trustees of the Second Christian Church?”'

III. Cases in our reports that may be urged for the proposition that here was a sufficient disclosure of a principal have, on analysis, no application, because their examination discloses that in them there was a sufficient disclosure. For instance, in Baker v. Chambles, 4 G. Greene 428, the promise was, “We, the undersigned, Directors of School District No. 4, Montpelier Township, promise to pay,” and then signed their individual names. In the same situation is Lyon v. Adamson, 7 Iowa 509, 510. In Harvey v. Irvine, 11 Iowa 82, the note read, “We, or either of us, promise to pay * * * for value received of him in behalf of School District No. 6,” and the signature was, “James M. Irvine, President, L. B. Bullock, Secretary, Conrad Dietz, Treasurer.”

In Wheelock v. Winslow, 15 Iowa 464, the signature was, “For the Dubuque Times Co., Ferd S. Winslow, Treasurer.” In Turner v. Potter, 56 Iowa 251, it was, “Burlington & Southwestern Railway Co., Y. K. Moore, A. Tr.” Note, Moore does not sign as assistant treasurer of this railroad, or as the representative of anything. The first signature is that of the corporation itself, and the description of Moore is a statement of who affixed the signature of the corporation. In the case at bar, no signature of the church corporation appears. In Exchange Bank v. Schultz, 167 Iowa 136, the signature was, “Glendell Dairy Company, by Henry O. Harstad, President; J. E. Schultz.” It is held that Schultz is personally bound, because the evidence does not justify reforming the note to show that he signed for the Dairy Company.

The signature in Liebscher v. Kraus, 74 Wis. 387, exhibits differences from the one at bar that have already been adverted to. It is, “San Pedro Mining & Milling Company, F. Kraus, President.” Kraus was released; but it is again to be noted, the signature is that of the corporation. The case would be a parallel one, had the signature been, ^President of the San Pedro Mining & Milling Company, C. F. Kraus,” and Kraus been released.

All that Capital Sav. B. & T. Co. v. Swan, 100 Iowa 718, decides, is that, where the promise is signed, “Merchants Loan & Trust Company, Sioux City, Iowa, by W. E. Higman, President, F. C. Swan, Sec’y and Treas.,” such signature suffices to put a purchaser of the note on inquiry as to whether the secretary intended to bind himself personally.

We are of opinion that the face of the note in suit did not disclose to the plaintiff who the claimed principal of the signers is, and that, upon the face of the instrument, the signers Ervin, Moulton, and Everett were personally bound.

3. principal dual Aagency. IY. The question remains whether the plaintiff was in- • formed, other than by the face of the note, that Ervin, Moulton, and Everett were signing merely in a representative capacity. If she had such knowledge, it must be because Shope, who was the intermediary between the borrower and the lend-■j er, had such knowledge. Shope procured this loan for the borrower. Plaintiff testifies: “Mr. Shope loaned the money;” when the loan was made, she gave Shope her passbook, to go to the bank and draw the money, and he afterwards reported he had loaned the money, and gave her the note. Shope testifies that, at the time the note was given, he was “doing her business for her;” that he drew the note, procured its execution, and gave it to plaintiff; and that he “had been loaning money for her since about the year 1897 and 1898 down until this note was given,” a period of ten years or more. But in spite of this, Shope also acted for the borrower. At best for appellees, Shope is what is known as a “double agent.” And being that, his knowledge does not bind the plaintiff as to what was said in getting Shope to obtain the loan. See 2 Corpus Juris 446, 447, 448, 712; Englemann v. Reuse, 61 Mich. 395 (28 N. W. 149) ; Henken v. Schwicker, 174 N. Y. 298 (66 N. E. 971) ; Boyd v. Boyd, 128 Iowa 699.

Note, too, that Shope merely advised the plaintiff that the “church people wanted $600,” which is no more a disclosure of who the principal is than the note affords. Note, further, Shope added there would be four or five good men on the note, which justifies a fact finding that he thus led the plaintiff to believe that the individual names finally appearing on the note were a fulfillment of that promise.

4. principal and surety : estoppel against eundisciosea princiY. As to alleged estoppel or ratification because plaintiff procured judgment against the church corporation, we are of opinion that, in the circumstances at bar, this does not create a binding estoppel. Appellees admit the church was the borrower. This, 0:^ itself, does not negative that the individliaig are liable. A borrower may give sureties. If so, proceeding against the principal does not release the sureties, unless satisfaction be had. And see Goodale v. Middaugh, 8 Colo. App. 223 (46 Pac. 11), and McClure v. Livermore, 78 Me. 390 (6 Atl. 11).

In our opinion, the cause must be reversed. It is done, and the trial court directed to give plaintiff judgment on the note sued on, against the defendants Ervin, Moulton, and Everett. — Reversed.

■ Preston, C. J., Ladd, Evans, Gayno"r, and Stevens, JJ., concur. " ””