Scott v. Baker , 3 W. Va. 285 ( 1869 )

Maxwell, JV

This was an action of debt to recover from William Scott and William IT. Hornor the sum of 842 dollars, the amount of a promissory note alleged in the declaration to have been made by the defendants on the 19th day of December, 1866, payable two months after the date thereof, at the Second National Bank of Parkersburg.

The case was matured against the defendant Scott, who appeared and demurred to the declaration and filed the plea" of nil debit and also the plea of payment, on which issues were joined. The demurrer was overruled, and the court, in lieu of a jury, proceeded to try the issues. The plaintiff offered in evidence on the trial as the foundation of his action the following papér:

“ $342.25. December 19,1866.

Sixty days after date we promise to pay to the order of J. W. Baker, three hundred and forty-two 25-100 dollars, at Second National Bank of Parkersburg, value received.

William Scott,

President Blannerhassett Oil Co.

W. H. Hornor,

Treasurer.

Endorsed

W. H. Horner, Treasurer.

J. W. Baker.”

And accompanied the said note with the protest thereof. To the admission of which the defendant objected and moved the court to exclude the same, because the plaintiff declared on a certain joint note, made by the defendants, and the note and protest offered in evidence were the note and protest of the Blannerhassett Oil Company, the same having been made and signed by the said William Scott, a» president of said Blannerhassett Oil Company, and by the said Hornor as treasurer of the same company, and because there was a variance between the declaration and the evidence offered]; but the court allowed the note and protest to be given in evidence and rendered judgment for the plaintiff for the amount of the note and charges of protest thereon. There was nothing in the demurrer and the same-w'as very properly overruled.

The petitioner insists that the court erred in overruling the motion to exclude the note because of the variance between it and the declaration. First, because a note payable sixty days after date is not the same as a note payable two months after date. . Second, because the note on which the action was founded, was, as appears from the declaration, a joint promise of the petitioner Scott and the said William II. Ilornor, whereas the note given in evidence was the note of. the Blannerhassett Oil Company, as appears on its face. There is a plain variance between the note given in evidence and the declaration in two respects. The note is described in the declaration as a note for “ three hundred and forty-two dollars,” payable “ two months after the date thereof,” while the note given in evidence is for “three hundred and forty-two 25-100 dollars,” payable “sixty days after date.” This, it seems to me, was a fatal variance, and the note should have been excluded, the plea of nil debit making it necessary that the note produced in evidence should correspond with that described in the declaration.

On the other ground claimed that the note given in evidence is the note of the Blannerhassett Oil Company and not the note of Scott and Ilorner, there is no variance between the declaration and the note; because the note given in evidence is plainly the note of William Scott and W. II. IToruor.

There is nothing about the note that indicates, in the slightest degree, that it is the note of the Blannerhassett Oil Company or that it is intended to be such. The president and treasurer, together or separately, may have had authority to make the notes of the company, but in this instance the note is not executed for the company or in the name of tbe company, and the addition of president and treasurer to their names cannot have the effect to make it the note of the company.

In the case of Baker vs. Mechanic Fire Ins. Co., 3 Wend., 94, it was held that a note either in the following form: “I, John Franklin, president of the Mechanic Fire Insurance Company, promise to pay to the order of the president and directors of the Life and Fire Insurance Company, on demand, the sum of 3,172 dollars and 40 cents, with interest, for value received. John Franklinor in the form following : “I promise to pay to the order of the president and directors of the Life and Fire Insurance Company; on demand, the sum of 3,172 dollars and 40 cents, with interest, for value received. John Franklin, president of the Mechanic Fire Insurance Company,” was not the note of the company or binding upon it.

In the case of Macbean vs. Morrison, 1 A. K. Marshall, 545, a note in the following form :

I $559 24-100. Lexington, 9th March, 1814.

On the 8th of April, next, I promise to pay James Morrison, or order, five hundred and fifty-nine dollars 24-100, for value received, of Nicholas Smith, being an account of his wages at the Madison Hemp and Flax Spinning Company Manufactory, in Madison county. For the Madison Hemp and Flax Company. W. Macbean, Pres.,”

was held to be the note of Macbean for which he was held individually liable.

In the case of Hills vs. Bannister and Butler, 8 Cowen, 31, Hills brought an action of assumpsit on a promissory note, executed b}7 Bannister and Butler, with the addition to their names of “Trustees of Union Beligious Society, Phelps,” which was a corporation, and the defendants were held personally liable.

In the case of Bradler et al. vs. Boston Glass Manufactory, 16 Pick., the plaintiff brought an action of assumpsit against the Glass Manufactory on the following promissory note:

“Boston, 13 January,.1823. For value received, we, the subscribers, jointly and severally, promise to pay Miss Jane T. Bradler, or order, for the Boston Glass Manufactory, thirty-five hundred dollars, on demand, with interest.

Jonathan Hunnewell,

Samuel Gese,

CHARLES F. XüPFER,” .

and it was held that this was the promisssory note of the three makers and not of the company.

The case of Taft vs. Brewster and others, 9 Johns., 334, was an action brought against Brewster, Loomis and Coats, on a bond, dated the 16th of April, 1810, by which the defendants, “by the name and description of Jacob Brewster, Thaddeus Loomis and Joseph Coates, trustees of the Baptist society of the town of Richfield,” acknowledged themselves bound to the plaintiff in the sum of 3,600 dollars, to be paid, &c., conditioned that if the defendants, as trustees of the Baptist society of the town of Richfield, their heirs, &c., should pay the plaintiff the sum of 1,800, with interest at the several times therein mentioned, &c. The bond was signed, “Jacob Brewster, Thaddeus Loomis and Joseph Coats, trustees of the Baptist society of the town of Rich-field,” and sealed by them respectively. The bond was considered as given by the defendants in their individual capacities.

More cases of the same import might be added, but they are uniform and it is useless to multiply them.

The case will have to be reversed, however, for the error committed in receiving the note in evidence, because of its variance from the declaration before pointed out, at the costs of the defendants in error, and the cause remanded for further proceedings to be had therein.

The other judges concurred.

Judgment Reversed.