Section 16.-[DELIVERY: WHEN EFFECTUAL: WHEN PRESUMED.] Every contract on a negotiable instrument is incomplete and revocable until delivery of the instrument for the purpose of giving effect thereto. As between immediate parties, and as regards a remote party other than a holder in due course, the delivery, in order to be effectual, must be made either by or under the authority of the party making, drawing, accepting or indorsing, as the case may be; and in such case the delivery may be shown to have been conditional, or for a special purpose only, and not for the purpose of transferring the property in the instrument. But where the instrument is in the hands of a holder in due course, a valid delivery thereof by all parties prior to him so as to make them liable to him is conclusively presumed. And where the instrument is no longer in the possession of a party whose signature appears thereon, a valid and intentional delivery by him is presumed until the contrary is proved. 45

This section changes the rule of the common law in providing that as against a holder in due course lack of delivery is no defence. 46 But as between the immediate parties or those having the same rights, it may be shown that there was no intention to transfer the property in a note made payable to the person to whom its possession was delivered, or to do so only upon a condition which has not happened. 47 A payee

checks are filled out and negotiated to a holder in due course; for delivery is defined in the statute (section 191) as any transfer of possession. See further on this section: Polizzotto v. People's Bank, 125 La. 770, 51 So. 843, 30 L. R. A. (N. S.) 206; Holtzman v. Teague, 172 N. Y. App. D. 75, 158 N. Y. S. 211; Hodge v. Smith, 130 Wis. 326, 110 N. W. 192.

45 In the North Carolina Act the word "accepting" is omitted from the second sentence. In the Kansas and South Dakota Acts, the third sentence of the section is omitted, and in the latter a substituted provision is inserted. An executed note not delivered

found among the maker's effects after his death creates no obligation. In re Bean's Est. (Pa.), 107 Atl. 671.

46 See Buzzell v. Tobin, 201 Mass. 1, 86 N. E. 923; Montvale v. People's Bank, 74 N. J. L. 464, 67 Atl. 67; Schaeffer v. Marsh, 90 N. Y. Misc. 307, 153 N. Y. S. 96.

47 Jenkins v. National Bank (Md.), 106 Atl. 174; Hill v. Hall, 191 Mass. 253, 77 N. E. 831; Niblock v. Sprague, 200 N. Y. 390, 93 N. E. 1105; Lee v. Benjamin, 40 R. I. 567, 102 Atl. 713; Seattle Nat. Bank v. Becker, 74 Wash. 431, 133 Pac. 613; United States Ins. Co. v. Epley, 164 Wis. 438, 160 N. W. 175.

who takes for value in good faith is not an immediate party within the meaning of the section. 48

§ 1143. Ambiguous instruments.

Section 17. [CONSTRUCTION WHERE INSTRUMENT IS AMBIGUOUS.] Where the language of the instrument is ambiguous or there are omissions therein, the following rules of construction apply:

(1) Where the sum payable is expressed in words and also in figures and there is a discrepancy between the two, the sum denoted by the words is the sum payable; but if the words are ambiguous or uncertain, reference may be had to the figures to fix the amount;

(2) Where the instrument provides for the payment of interest, without specifying the date from which interest is to run, the interest runs from the date of the instrument, and if the instrument is undated, from the issue thereof;

(3) Where the instrument is not dated, it will be considered to be dated as of the time it was issued;

(4) Where there is a conflict between the written and printed provisions of the instrument, the written provisions prevail;

(5) Where the instrument is so ambiguous that there is doubt whether it is a bill or note, the holder may treat it as either at his election;

(6) Where a signature is so placed upon the instrument that it is not clear in what capacity the person making the same intended to sign, he is to be deemed an indorser; 49

(7) Where an instrument containing the words "I promise to pay " is signed by two or more persons, they are deemed to be jointly and severally liable thereon.50

48 Liberty Trust Co. v. Tilton, 217 Mass. 462, 105 N. E. 605, L. R. A. 1915 B. 144. See infra, § 1157; also Ex parte Goldberg, 191 Ala. 356, 67 So. 839, L. R. A. 1915 F. 1155.

49 See Iron City Nat. Bank v. Rafferty, 207 Pa. 238, 56 Atl. 445; Moore v. Carey, 138 Tenn. 332, 197 S. W. 1093, L. R. A. 1918 D. 963; Germania

Nat. Bank v. Mariner, 129 Wis. 544, 109 N. W. 574.

50 See Lewenstein v. Forman, 223 Mass. 325, 111 N. E. 962, also supra, § 324. In the North Carolina Act, subsection (2) is omitted. In the Wisconsin Act is added: "(8) Where several writings are executed at or about the same time, as parts of the

§ 1144. Signature.

Section 18. [LIABILITY OF PERSON SIGNING IN TRADE OR ASSUMED NAME.] No person is liable on the instrument whose signature does not appear thereon, except as herein otherwise expressly provided. But one who signs in a trade or assumed name will be liable to the same extent as if he had signed in his own name.51

Section 19. [SIGNATURE BY AGENT; AUTHORITY; HOW SHOWN.] The signature of any party may be made by a duly authorized agent. No particular form of appointment is necessary for this purpose; and the authority of the agent may be established as in other cases of agency.52

Section 20. [LIABILITY OF PERSON SIGNING AS AGENT, ETC.] Where the instrument contains or a person adds to his signature words indicating that he signs for or on behalf of a principal, or in a representative capacity, he is not liable on the instrument if he was duly authorized; but the mere addition of words describing him as an agent, or as filling a representative character, without disclosing his principal, does not exempt him from personal liability."

53

The purpose of this section seems to be to change (if the signer was duly authorized and his principal disclosed on the instrument) the law by which signatures of those who sign in a representative character have been held in many cases to bind the signers personally even though they were authorized to sign on behalf of another, and the courts seem generally disposed to construe the section as effecting this change. 55 same transactions, intended to accomplish the same object, they may be construed as one and the same instrument as to all parties having notice thereof."

51 See First Nat. Bank v. Cottonwood Land Co., 51 Mont. 544, 154 Pac. 582; New York L. Ins. Co. v. Martindale, 75 Kans. 142, 88 Pac. 559, 121 Am. St. 362; Seattle Shoe Co. v. Packard, 43 Wash. 527, 86 Pac. 845, 117 Am. St. 1064.

52 See In re Chismore's Est., 166 Ia. 217, 147 N. W. 297; Grant County

State Bank v. Northwestern Land Co., 28 N. Dak. 479, 150 N. W. 736. In the Kentucky Act instead of this section it is provided that: "The signature of any party may be made by an agent duly authorized in writing." See Finley v. Smith, 165 Ky. 445, 177 S. W. 262, L. R. A. 1915 F. 777.

53 In the Virginia Act after the word "capacity" the words "without disclosing his principal" are inserted. 54 See supra, §§ 298, 299, 311, 312.

55 Jump v. Sparling, 218 Mass. 324, 105 N. E. 878; Chelsea Exch. Bank v.

The words "if he was duly authorized" seem to carry the implication that if unauthorized the agent is not merely liable for breach of a non-negotiable warranty, 56 but liable on the instrument itself.57

Section 21. [SIGNATURE BY PROCURATION; EFFECT OF.] A signature by "procuration " operates as notice that the agent has but a limited authority to sign, and the principal is bound only in case the agent in so signing acted within the actual limits of his authority.58

§ 1145. Voidable or void signatures.

Section 22. [EFFECT OF INDORSEMENT BY INFANT OR CORPORATION.] The indorsement or assignment of the instrument by a corporation or by an infant passes the property therein, notwithstanding that from want of capacity the corporation or infant may incur no liability thereon.59

This provision presumably does not change the rule of the common law. It is not stated whether or not the transfer of the instrument may be rescinded by the corporation or infant, but in view of Section 196 of the statute the infant doubtless still retains his right of rescission.60

Section 23. [FORGED SIGNATURE; EFFECT OF.] When a signature is forged or made without the authority of the person whose signature it purports to be, it is wholly inoperative, and no right to retain the instrument, or to give a discharge therefor, or to enforce payment thereof against any party thereto, can be acquired through or under such signature, unless the party, against whom it is sought to enforce such right, is precluded from setting up the forgery or want of authority.

Whether a forgery can subsequently be ratified or adopted without estoppel or new consideration is a question to which judicial answers are hopelessly conflicting. It is pointed out that since the forgery did not purport to be made on behalf of the person whose name was forged, there can be no ratification. This criticism is sound. The person whose signature it is may indeed adopt it, but adoption involves no fictitious relation, and to sustain recovery after adoption either consideration or estoppel should be requisite.61 Called by whatever name the doctrine may be, the vital question is whether the enforcement of the instrument without this basis should be permitted.62

The right of recovery is clear not only when consideration

61 See Capps v. Hensley, 23 Okl. 311, 100 Pac. 515; Edwards v. Heralds of Liberty, 263 Pa. 548, 107 Atl. 324.

62 Enforcement was allowed in Union Bank v. Middlebrook, 33 Conn. 95; Livings v. Wiler, 32 Ill. 387; Hefner v. Vandolah, 62 Ill. 483, 14 Am. Rep. 106; Fay v. Slaughter, 194 Ill. 157, 167, 62 N. E. 592, 56 L. R. A. 564, 88 Am. St. Rep. 148; Casco Bank v. Keene, 53 Me. 103; Greenfield Bank v. Crafts, 4 Allen, 447; Wellington v. Jackson, 121 Mass. 157; Central Bank v. Copp, 184 Mass. 328, 68 N. E. 334; Fitzpatrick v. School Commrs., 7 Humph. 224, 46 Am. Dec. 76; Marks v. Schram, 109 Wis. 452, 84 N. W. 830. See also Campbell v. Campbell, 133 Cal. 33, 65 Pac. 134; Ofenstein v. Bryan, 20 App. D. C. 1; Smith v. Tramel, 68 Ia. 488, 27 N. W.

471; Myer v. Wegener, 114 Ia. 74, 86 N. W. 49; Carthage Bank v. Butterbaugh, 116 Ia. 657, 88 N. W. 954; Forsythe v. Bonta, 5 Bush, 547. On the other hand, the adoption was held invalid in Brook v. Hook, L. R. 6 Ex. 89; Barry v. Kirkland, 6 Ariz. 1, 52 Pac. 771; Henry v. Heeb, 114 Ind. 275, 16 N. E. 606, 5 Am. St. Rep. 613 (but see Neal v. First Bank, 26 Ind. App. 503); Wilson v. Hayes, 40 Minn. 531, 42 N. W. 467, 4 L. R. A. 196, 12 Am. St. Rep. 754; Workman v. Wright, 33 Oh. St. 405, 31 Am. Rep. 546; McHugh v. County of Schuylkill, 67 Pa. 391, 5 Am. Rep. 445; Shisler v. Vandike, 92 Pa. 447, 37 Am. Rep. 702; Henry, etc., Assoc. v. Walton, 181 Pa. 201, 37 Atl. 261.