Chase v. Pattberg , 12 Daly 171 ( 1883 )

Van Brunt, J.

The plaintiff in this action claims to recover upon two grounds:

First, that the instrument sued upon is the defendant’s contract.

Secondly, that if the court should find that it was signed by him as agent, there is no proof that the agent had any authority to execute any.such instrument.

I am of the opinion that the finding of the learned justice who tried the case in the court below is. fully sustained, that the contract in question was made by and on account of the English Sewing Machine Company, and that the plaintiff received the same as an obligation of the company and not as an obligation of the defendant.

It is claimed upon the part of the appellant, that although the defendant in this action may have been authorized to malee a contract with the plaintiff for advertising on behalf of the English Sewing Machine Company, yet he had no right to sign a promissory note. The instruments in question are certainly contracts, and merely because they contain a promise to pay to the order of the plaintiff the consideration money of the contract, and thereby contain words which belong to a promissory note, the character of the instrument signed is not materially changed. The evidence in the case is that the defendant wrote to the person whom he supposed to be the president of the company, and received the authority to make the contract which he did. The evidence of the defendant shows that the plaintiff was informed of the fact that the defendant was making this contract on behalf of the English Sewing Machine Company, and the contract so reads. The case of Be Witt v. Walton (9 N. Y. 571), relied upon by the appellant’s counsel, is not at all parallel to the case at bar. In that case the note was signed by the defendant. To be sure his signature was followed by the words “Agent for the Churchman,” but the language of the instrument was, “ I promise to pay.” The words “ Agent for the Churchman ” were clearly words of description. If the note had read “We promise to pay,” and had been signed “ The Churchman, Walton, agent,” a different result would probably have been arrived at by the learned court, and such is the signature appended to the contract in question in the case at bar. The burden of the appellant’s argument seems to be that it was established by the evidence in this case that the defendant had no right to sign a promissory note. As has already been said, the language used in the contract under consideration, whereby a promise is made to pay for the services to be rendered, may have embraced .the elements of a promissory note, yet the whole of the contract being expressed in 'the instrument, this fact did not change the nature of the agreement made on behalf of the English Sewing Machine Company by the defendant and the plaintiff, and such agreement seems to have been within the authority sworn to by the defendant:

I am of the opinion, therefore, that the judgment appealed from should be affirmed, with costs.

Charles P. Daly, Ch. J., and Beach, J., concurred.

Judgment affirmed, with costs.