Opinion
January Term, 1897.
August Becker, for the appellant.
George C. Miller, for the respondent.
Whatever may be the rule as to other contracts, not under seal, the law is firmly established in this State as to commercial paper that persons dealing with negotiable instruments are presumed to take them on the credit of the parties whose names appear upon them, and a person not a party cannot be charged upon proof that the ostensible party signed or indorsed as his agent. ( Briggs v. Partridge, 64 N.Y. 363, and cases there cited; Cortland Wagon Co. v. Lynch, 82 Hun, 173; 31 N.Y. Supp. 325; Casco National Bank v. Clark, 139 N.Y. 307.)
It is also held that the negotiable instrument binds only the ostensible maker, though the word "agent" is attached to his signature, no principal being named in the body of the instrument, or indicated by the signature. (See the last two cases cited.)
The law merchant surrounds the negotiable paper in the hands of a bona fide holder with a credit not given to other contracts, and protects him against hidden equities of which he has no notice, and permits him to recover against the party whose name is signed to the instrument though there be attached to his name the word "agent," and he is not bound to search for a principal unknown to the instrument itself. Nor can he do so. The rights of the holder are confined to the parties to the instrument, and he must rely upon them alone, except that he can establish that the name used as the signature to the instrument has been adopted by the assumed principal or by the person not named in the instrument as his own in transacting the business. This may be done. A person may become a party to a bill or note by any mark or designation he chooses to adopt, provided it be used as a substitute for his name and he intends to be bound by it. ( De Witt v. Walton, 9 N.Y. 574; Daniels on Neg. Inst. § 304.) The last quoted authority says: "But such liability exists only where it is affirmatively and satisfactorily proved that the name or signature thus used is one which has been assumed and sanctioned as indicative of their contracts, and has been, with their knowledge and consent, adopted as a substitute for the own names and signatures in signing bills and notes."
No authority is given in the written instrument filed from the defendant to use the signature of W.J. Johnston, Agent, as and for the defendant. Nor is there any proof that, in fact, the defendant had authorized the use of that name as representing her in the business, and the case seems to stand upon the bare proposition that, although neither the plaintiff nor the lumber company had knowledge of the instrument filed in the clerk's office, and in no manner relied upon it, and had no knowledge, in fact, that the signature to the note in any manner represented the defendant, still the plaintiff had a right to go outside of the instrument and explore for some undiscovered principal that the simple addition of "Agent" to Johnston's name might indicate, and having found this instrument on file, could stand upon that and recover.
We cannot concur in this view.
The appellant claims, also, that it was error to permit Johnston to testify that the defendant never had any interest in the business and received no profits therefrom, and that a revocation of the agency was made in March, 1895, but not filed, over the objection of the plaintiff. The plaintiff had made Johnston its witness and had gone into the relations existing between him and the defendant, and the court permitted him to testify, on cross-examination, to the matter objected to. Upon the facts we have narrated, if the reception of this evidence were error, it could not affect the result as the defendant was not liable in any event so far as the case discloses, and it is, therefore, unnecessary to consider the matter further.
We have reached the conclusion that the decision of the trial court was right and that the judgment should be affirmed.
All concurred.
Judgment affirmed, with costs.