Rendell v. Harriman , 1883 Me. LEXIS 170 ( 1883 )

Daneorti-i, J.

All the questions which have been or can be raised in this case growing out of the common law, as well the purpose and effect of K. S., c. 73, § 15, were raised and fully discussed and settled in Sturdivant v. Hull, 59 Maine, 172. A case so well considered and so fully sustained by the authorities as that would seem to be decisive of all the questions involved and would undoubtedly have been so considered, but for a hope raised by what is claimed " as a modification of the rule established by it, in Simpson v. Garland, 72 Maine, 40, following a more liberal construction of the statute in Nobleboro’ v. Clark, 68 Maine, 93.” But upon a review of Sturdivant v. Hull, we see no occasion to depart from its teachings, nor do we perceive any modification of its doctrine in any case which follows. On the other hand, Mellen v. Moore, 68 Maine, 390, " is exclusively based” upon it; it is referred to a¡s authority in Nobleboro’ v. Clark, and is followed in the still later case of Ross v. Brown, 74 Maine, 352 ; nor do we find anything inconsistent with it in Simpson v. Garland. In the latter case the note contained language purporting to show that the promise was that of the principal and which the court held did show it; while in Sturdivant v. Hull, no such language is used. True, in the case of Ross v. Brown, it is suggested that it does not appear that the maker of the note had any authority to bind the town ; but from the opinion it clearly appears that the liability is fixed upon the .agent by force of the terms of the contract and not by any extraneous evidence, or the want of it. In Nobleboro’ v. Clark, the contract was set up as binding upon the principal and was so held because by its terms it appeared that such was the intention of the agent and such beiiig the intention, it was necessary with or without the statute to show the authority of the agent before the contract could be regarded as that of the principal. The action at bar is against the alleged agents and as suggested in Sturdivant v. Hull, whatever may be the effect of the statute in "extending a liability to the real party in interest and affording a remedy against him, it cannot be so construed as to discharge one who for a sufficient consideration, has expressly assumed a liability by means of a written contract, or to allow proof aliunde for that purpose.” Nor do we find any case at common law to go so far. All the authorities, including those cited by the defendant in this case, concur in holding that the liability of the one party or the other must be ascertained from the terms of the written instrument and parol proof cannot be received to vary or control such terms.

That an agent may make himself responsible for his principal’s debt is beyond doubt. That the defendants in this case have done so by the terms of the note in suit, uncontrolled by extraneous evidence is settled by the uniform decisions in this state, supported as shown in Sturdivant v. Hull, by the weight of reason, as well as of authority elsewhere.

The evidence then, offered, if admitted, would not avail the defendants unless it had the effect to discharge them from a contract into which they have entered-•

It is true, that in the cases cited, such evidence was admitted and was perhaps admissible, under the well established rule of law, that when there is an ambiguity in the contract, when the language used is equally susceptible of two different constructions, evidence of the circumstances by which the parties were surrounded and under which the contract was made may lie given, not for the purpose of proving the intention of the parties independent of the writing, but that the intention may be more intelligently ascertained from its terms. But to make this evidence admissible some ambiguity must first appear; there must be language used such as may without doing violence to its meaning, be explained consistently with the liability of either party, some language which as in Simpson v. Garland tends, in the words of the statute, to show that the contract was made by the agent " in the name of the principal, or in his own name for his principal. ”

In this case no such ambiguity exists, no such language is used. The promise is that of the defendants alone, without anything to indicate that it was for or in behalf of another. True, the defendants affixed to their names their official title, with the. name of the corporation in which they held office, but nothing whatever to qualify their promise or in the slightest degree to show it other than their own. The statute as well as. the decisions, with few exceptions, as we have seen requires more than this to make the testimony admissible. Bray v. Kettell, 1 Allen, 80.

Defendants defaulted for the amount of the note and interest.

Appleton, C. J., WaltoN, Barrows, Peters and Libre y., JJ., concurred.