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JACKSON v. MYERS.
COURT OF APPEALS OF MARYLAND.
(To appear in 43 Md.)
NEGOTIABILITY OF A NOTE ISSUED BY A BUILDING ASSOCIATION.
LIABILITY OF INDORSERS OF SUCH NOTE.
JACKSON v. MYERS.
A building association was organized in August, 1871, under the act of 1868, ch. 471, the general incorporation law of the state, and by the 9th and 11th articles of its association, it was provided that its board might issue promissory notes on mortgages only, and that such notes should always be drawn to the order of the mortgagor, who should in all cases indorse the note thus drawn. The president, secretary, treasurer, and three directors were authorized to sign all promissory notes issued by the association. Under the authority of these articles the association issued its note to the appellees instead of money, for which a mortgage was given. The note was strictly in form a promissory note, payable to the order of the appellees. It was drawn at sixty days' time, and payable at a certain named bank ; and was signed by the officers designated in the articles of association to execute promissory notes. In one corner of the face of the note there was the type or emblem of what was alleged to be the seal of the corporation; this alleged seal consisted simply of an emblem or symbol printed by the printer at the time when the printed blank note was struck. The note was indorsed by the payees, and by them negotiated, and at maturity was duly presented for payment, and was dishonored and protested, and notice given by the notary to the said indorsers, and payment duly demanded of them. Suit was brought on the note by the indorsees against the indorsers, who contended that they were not liable by rea
son of their indorsement, because the instrument sued on was a single bill. Held:1. That the note sued on was a negotiable promissory note, and by the indorsement
thereof in the ordinary way, the indorsers became liable. 2. That the nature of the transaction itself, the objects and purposes to be subserved by the issue of the note, as well as its form, indicated that the parties must have understood that the note was negotiable, and that it would be so accepted and dealt with by the commercial community. ' 3. That the symbol or printed representation of the seal, if it be conceded to be a
sufficient seal, was not printed on the note to restrain its negotiability, or to change it
into a specialty, but rather as a mark of genuineness. 4. That the note in no manner depended upon the seal for its validity, but derived its
entire authenticity from the signatures of the officers authorized to execute it.
APPEAL from the superior court of Baltimore city.
This was an action of assumpsit brought by the appellants against the appellees as indorsers of the following promissory note:
BALTIMORE, June 21, 1873. Sixty days after date, Old Town Permanent Building Association promises to pay to the order of Myers Brothers, nine hundred dollars, with interest, for value received, payable at the German Savings Bank.
Thomas H. Boyer, Pres't. Robt. L. Dickey, Sec'y.
A. S. Miles, Treas. G. S. Windsor, Martin Zirpe, John A. Stokes, Directors. (Seal of Old Town Permanent Building Association.) On the margin of the note was the memorandum : “ This note is issued on mortgage of Myers Brothers, left for record June 18, 1872.".
JACKSON v. MYERS.
The words of the note italicised were written with a pen, and the words or portions not italicised were printed ; and the circle around the words “ Seal of Old Town Permanent Building Association," as well as the words themselves, were printed ; and it was proved that the said words and circle, and other printed portions, constituted a printed form used by the officers of the corporation in writing the promissory notes issued under articles nine and eleven of the constitution, and that many such notes had been issued and negotiated. The genuineness of the signatures to the note, as also of the indorsement of the defendants thereon, was proved by the plaintiffs.
It was admitted that the Old Town Permanent Building Association was incorporated on the 31st of August, 1872, under the act of 1868, ch. 471, the general incorporation law of the state. Article 9 of the constitution of the association was as follows: —
“ Sec. 1. The board may issue promissory notes on mortgage only, and must always be drawn to order of mortgagor. When a transfer of mortgage is executed, all notes must be lifted or new ones drawn to order of the new mortgagor, and in case of renewal of notes the new ones must also be drawn to order of the mortgagor, and mortgagor must in all cases indorse the notes when to his or her order.
“Sec. 2. The board may accept or negotiate promissory notes of any good, responsible building association, or other corporation in good standing and credit, in payment for stock in this association, and on terms to be arranged by the board."
Article 11 was as follows:
“ The president, vice-president, secretary, treasurer, comptroller, and directors shall constitute the board for the transaction of such business as shall be intrusted to them by these articles, a majority of whom shall constitute a quorum. They may hold special meetings whenever called by the president. They shall have the general supervision of the affairs of the association, and the duties of its officers. The president, secretary, treasurer, and three directors shall sign all promissory notes issued and authorized by the association. They shall incur no expense, except providing for the necessary accommodations of their own and regular meetings, when authorized to do so by a vote of this association. They shall judge of the sufficiency of all mortgages and other securities offered to this association.”
The plaintiffs proved by one Rennolds that in 1872 the defendants told the witness they had a good building association note — naming the Old Town Permanent Building Association as the maker — indorsed by themselves, which they wanted to negotiate ; he thereupon informed Miss Priscilla Lynch (since married, and one of the appellants), who upon his advice authorized him to take the offered note; with her money he paid the defendants nine hundred dollars, less an agreed discount, and received the note from them and gave it to the said Priscilla. That the note so negotiated was dated June 18, 1872, and was payable twelve months after date to the order of the defendants; was indorsed by them in blank, and was otherwise like the note sued on. A mortgage executed to the Old Town Permanent Building Association by the appellees, dated June 18, 1872, and duly recorded, was offered in evidence, and admitted to be Vol. IV.)
JACKSON v. MYERS.
the same mortgage referred to in the margin of both of said notes. When the twelve months' note was about maturing, the appellees applied to Rennolds, as he testified, to have it renewed for sixty days; he saw Miss Lynch, and she consented to take a renewal of the note with indorsement of the appellees; that one of the appellees brought him the note sued on, and the original or twelve months' note was surrendered.
The note sued on was presented at maturity for payment, was dishonored and protested, and notice given by the notary to the appellees as indorsers, and payment duly demanded of them. Rennolds further testified that before the note matured he told the appellees that he intended, on behalf of Miss Lynch, to have it protested if it were not paid, and to hold them responsible; and that was why he had insisted upon their indorsing it; they never denied their obligation to pay the note; but after it was due, admitted they owed the money, promised to pay it, and said they were making negotiations to raise money for the purpose, and requested that no suit should be brought upon the note; and it was upon their request that suit was not sooner brought.
Thomas H. Boyer, on the part of the defendants, testified that in 1872, and subsequently, he was President of the Old Town Permanent Building Association; that the note dated June 18, 1872, was issued to the defendants under article 9 of the constitution, on the mortgage offered in evidence; that no money was paid by the association to the defendants, but the note was accepted by them as money.
The witness further testified, subject to exception, pointing to the printed impression on the note sued on, “ that is the seal of the association — that is our seal; we had no other seal; we recognized and adopted that seal when the note was filled up; that particular seal in that particular case was recognized as ours ; all the officers who signed that note recognized that as our seal.”
On cross-examination, the witness testified: “ There was no action of the board of directors, that I know of, recognizing the seal; the only recognition of it was the issue of the notes with it upon them.”
Prayers were offered on both sides, but their insertion is deemed unnecessary. The defence set up was that the note in question was to be regarded as a sealed instrument, and that therefore the defendants were not legally responsible on their mere indorsement; and this defence was sustained by the rulings of the court. The verdict and judgment were for the defendants, and the plaintiffs appealed.
The cause was argued before Bartol, C. J., Stewart, Miller, Alvey, and Robinson, JJ.
William A. Fisher f Arthur W. Machen, for the appellants. The writing in question, upon the evidence, was a promissory note, and not a specialty. The instruments the board of directors of the association were authorized to issue were called promissory notes ; and the definition of a promissory note is a promise in writing payable to order or bearer, and “signed but not sealed.” Byles, ch. 2. Farther, it is expressly said that they are to be drawn to order ; which cannot effectively be done unless the instrument is negotiable. It is required that they shall be drawn to the order of the party to whom they are issued, and that he must indorse them; and “ the effect of indorsing is a conditional contract
JACKSON v. MYERS.
on the part of the indorser, to pay the immediate or any succeeding indorsee or bearer, in case of the acceptor or maker's default.” Byles, c. 1, p. 2. If we look at the course of dealing, it is even more apparent that nothing capable of affecting the negotiability of the instrument could have been designed. In lieu of money, which ordinarily the borrower would be entitled to receive, the association gave its note. That the note should be seen to have a substantial guaranty, it bore in the margin a statement that it was issued on a mortgage executed by the payee. The mortgagor was required to indorse it. Issued in place of money, it was expected that it would be discounted, so as to enable the payee and indorser to obtain that use of money which was the only object he could have had in creating an incumbrance upon his property. Such, accordingly, was the consequence. The notes were negotiated like other commercial paper, upon the combined credit of the two parties who made themselves responsible upon it by their signatures — the building association as maker, the borrowers as indorsers. In addition, the note had the strength derived from the fact that real property, of supposed equivalent value, was pledged for the payment of the debt represented by it — not directly, as in the common case of a mortgage and mortgage note, but circuitously, by being made to the maker, as an indemnity against the consequences of the liability assumed in giving such a note. The effect of the whole was to make the indorser the party primarily liable, while the association stood as an accommodation maker, secured by the mortgage.
But is there any principle or "stubborn rule of law,” which prevents this instrument from having the effect it was designed to have, and which the conduct of the parties shows that they all originally contemplated ? On the contrary, it is a well recognized principle, that if a seal is added to an instrument which does not require it, and the presence of the seal operates to prevent the writing from having the effect it was intended to have, such seal may be treated as surplusage and disregarded. Hunter v. Parker, 7 M. & W. 322; Wood v. Auburn & Rochester R. R. 4 Seld. 167 ; Worrall v. Munn, 1 Seld. 229; Robinson v. Crowder, 4 McCord, 519; Irwin v. Brown, 2 Cranch C. C. 314; Brattan v. Burton & Mills, 1 Chitty's R. 707 ; Eureka Co. v. Bailey Co. 11 Wall. 491; Arnold v. Rock River Valley Union R. R. Co. 5 Duer, 208, 215.
There is the more reason for rejecting the seal in this case, because if the board of directors assumed to attach the corporate seal to the note they acted without authority. They had authority to sign the notes, but none to seal them. And not only was it beyond their authority, but the association itself had no right to put a seal to an instrument of that character, issued under the 9th article of its constitution : to do it was ultra vires.
A corporate seal does not prove itself. And to entitle the printed circle in question to be received as the corporate seal of this association, it was necessary to produce a corporate act making it the seal. Nothing less than a vote of the board of directors could amount to such an act, even if it did not require, as it seems it did under the articles, a resolution of the association itself. 2 Phill. Ev. 385, top (edition of 1867); Jackson v. Pratt, 10 Johns. 386; Damon v. Granby, 2 Pick. 353.
Even where the seal is proved to be the seal of the corporation, its
Rock River the more resa assumed they had authofond their
JACKSON v. MYERS.
mere presence upon a document does not make the latter the deed of the corporation ; it is necessary to show further that the seal was put there by some one duly authorized to do so. Koehler v. Black River Falls Iron Co. 2 Black, 716; Damon v. Granby, 2 Pick. 352. No evidence was offered of any resolution or other act of the board of directors, authorizing the issue of the note in question, or other similar notes, as sealed instruments, or adopting said seal or imprint as the seal of the said corporation; there was no evidence at all before the court, upon which it could hold the note to have been sealed by the association.
The presumption, which in this state, since the decision of Trasher v. Everhart, 3 G. & J. 246, has been understood to exist (somewhat in conflict perhaps with the common law, as now recognized in England, as well as elsewhere), that a scroll appearing upon an instrument signed by a natural person, even without words importing an intent to affix a seal, is the seal of such person, never has been held to apply to the case of a supposed corporate seal, and from the nature of the case cannot so apply. Hence, although the rule in Massachusetts, as to the deeds of natural persons, may be conceded to be different from that which has been adopted here, the case of Bates v. Boston f N. Y. Cent. R. R. Co. 10 Allen, 251, - a case of a printed fac-simile of a seal sought to be treated as a corporate seal, — is of undiminished authority. Kinzie v. Chicago, 3 Ill. (2 Scam.) 187.
The printed circle here is not necessarily the seal of the association, any more than the oblong figure, with the word stamp in it, frequently printed upon check blanks, is the actual stamp whose place it indicates. Its presence no more makes the writing afterwards written upon it a sealed instrument, than the red picture of the treasury seal on a national bank note, or on a legal tender note, makes either of those documents a contract under seal.
John Henry Keene, Jr., for the appellees.
Orville Horwitz, being interested, as representing several defendants to cases in the courts of Baltimore city, in one of the questions involved in this case, was permitted to present his views thereon. He argued that the effect of such indorsement on a single bill operates as a mere assignment of the equitable interest in the said bill of the payee or holder, and in the absence of any special agreement to the contrary, and in the absence of fraud, it creates no liability, actual or contingent, against the assignor.
The instrument in question being under seal is not a bill of exchange. To quote the language of Ch. J. Gilpin, in Conine v. J. J B. R. R. Co. 3 Houston, 299, “ from that day - the time of James the First — to this, no case can be found in the books of a bill of exchange with a seal affixed to it.”
The distinctions between sealed instruments and bills of exchange are too well marked to need repetition or authority. None, however, are better established than the negotiability of bills of exchange and the nonnegotiability of specialties; the transfer by indorsement of bills of exchange, and the assignment of choses in action. Story on Bills, ch. 4, § 61; Glyn v. Baker, 13 East, 515, 516 ; Warren v. Lynch, 5 Johns. 239