Savage Manufacturing Co. v. Worthington , 1 Gill 284 ( 1843 )

Stephen, J.,

delivered the opinion of this court.

We think there was error in the opinion of the court in the first bill of exceptions. The principle appears to be well settled, that where a note is executed by an agent, before it is admissible in evidence, it is necessary to prove, not only his signature, but the authority by which it is made. Speaking of the action of assumpsit on promissory notes, Roscoe, in his treatise on evidence, 174, says: “The making of the note will be proved by proving the handwriting of the defendant, or if made by an agent, by proof of the handwriting, and authority of such agent.

After it was admitted by both plaintiff and defendant, that the note given in evidence by the plaintiff was one of the notes referred to in the bond of conveyance, and that it was given to secure the payment in part of the purchase money for the land therein described, the defendants prayed the court to give several instructions to the jury, all of which were granted except the first, twelfth and fifteenth prayers; for the refusal to grant which, the defendants excepted.

It seemed to be conceded by the counsel for the appellants in the course of the argument, that the court below were right in refusing the twelfth prayer, it is therefore only necessary to decide upon the propriety of rejecting th e first and the fifteenth.

The first prayer was, that the promissory note offered in evidence by the plaintiff, was not the note of the said Savage Manufacturing Company, and that they were not legal parties thereto. This prayer we think the court ought to have granted. It appears by the bond of conveyance (the execution of which was admitted by the parties,) that the purchase was made by Williams, on his own account. The conveyance was to be made to him and his heirs, and there is an express stipulation that he and his heirs shall quietly and peaceably enjoy the property purchased, without any hindrance by the said obligor, or any person claiming under him. The purchase, therefore, being made by him on his own account, and the note being given to secure the payment of the purchase money, the note was invalid and a nullity, so far as the appellants were attempted to be bound thereby. It being conceded, that by the terms of their charter, they had no power to assume such a responsibility.

The fifteenth prayer, we think, also ought to have been granted. The bond of conveyance was the only legal evidence of the nature and character of the contract, and it demonstrated that Williams, and not the company, was the purchaser of the land therein specified. Parol evidence was not admissible to vary or contradict it in that respect, as seems to be clear upon authority. See Ros. Ev. J. 9, and 12 John. Rep. 77, where it is said, that parol evidence is inadmissible to prove that a grant made to one person was intended to be made to another. See also, same book, page 488, where it is said, “that parol evidence is inadmissible to show that a lease executed in the name of, and reserving a rent to one person, was intended for the benefit of another.”

For these reasons we are of opinion that the judgment of the court below was erroneous, and ought to be reversed.

JUDGMENT REVERSED.