Fuller v. Hooper , 69 Mass. 334 ( 1855 )

Metcalf, J.

The appeal in this case brings before us the single question, whether the two drafts of August and November 1847 can be legally proved against the separate estate of H. Gray. The main objection which is made to their being so proved is, that it does not appear, on the face of them, that he is individually a party to them, and that paroi evidence is not admissible to prove that he is. But we deem it clear, upon the face of the drafts, that they purport to be drawn by the Pompton Iron Works, through the agency, authorized or unauthorized, of W. Burtt. And it appears, from the facts agreed, that Burtf was the agent of those iron works, authorized by H. Gray, and by H. Gray & Co., to make drafts on H. Gray & Co. for expenses incurred for machinery and materials required in the manufacture of iron by those iron works; and, that these drafts were made for expenses so incurred.

We deem it equally clear, that paroi evidence would be admissible to show that the Pompton Ron Works were H. Gray and no one else ; and therefore that fact is to be taken as rightfully in the case. Bryant v. Eastman, 7 Cush. 111. Melledge v. Boston Iron Co. 5 Cush. 158. Williamson v. Johnson, 2 Dowl. & Ryl. 281, and 1 B. & C. 146. Collyer on Pari. (3d Amei ed.) § 411 ¿f note.

The case of Stackpole v. Arnold, 11 Mass. 27, which was pressed upon us, in argument, is not at all like this. This is a case in which persons make contracts in an artificial name; and paroi evidence is admitted for the purpose of showing who those persons are. That was an action against Arnold, on a note (which the files of the case, though not the report of it, show to have been negotiable) signed by Z. Cook, payable to W. Stackpole; and the attempt was to show, by paroi evidence, that Cook signed the note as agent of Arnold, and bound him, though the agency did not appear on the note. The correctness of the decision by which that evidence was held inadmissible is not to be doubted; although some of the dicta in the opinion there given may not be sustainable. The decision has been repeatedly recognized and affirmed. See Bedford Commercial Ins. Co. v. Covell, 8 Met. 442, and Taber v. Cannon, 8 Met. 460. The rule is general, if not universal, that neither the legal liability of an unnamed principal to be sued, nor his legal right to sue, on a negotiable instrument, can be shown by paroi evidence. When an agent signs such an instrument, without disclosing his agency on its face, the holder must look to him alone. And when such an instrument, which is intended for the benefit of the principal, is given to the agent only, he only, or his indorsee, can sue on it. In other simple contracts, the rule is different.

Another objection made to the proof, against H. Gray individnally, of the last of these drafts, is, that it was not protested, nor was notice given to him of its non-acceptance or non-payment. But as he was one of the drawees, as well as the drawer, and had knowledge of the drawees’ default, no further notice to him of non-payment was necessary in order to charge him as drawer. Chit. Bills, (10th Amer. ed.) 450. Gowan v. Jackson, 20 Johns. 176. Furthermore; he had no right to ex< pect that the drawees would pay the draft; as they (including himself) had caused all the funds, from which it could be paid, to be intercepted, by going into insolvency. Rhett v. Poe, 2 How. 457. It was not possible that he could be injured by want of formal notice. Claridge v. Dalton, 4 M. & S. 232.

We are therefore of opinion that proof of these drafts ought to have been allowed against H. Gray individually, as drawer. Whether they were legally provable against H. Gray & Co., as drawees, is not a question on this appeal. They were allowed tu be so proved, and no appeal was taken from that allowance. The fact that they have been so proved does not prevent the holders from proving them against the drawer also. Sohier v. Poring, 6 Cush. 548.