Evans v. Wells.

ers as the makers of a promissory note for $3000, dated 27th July, 1835, payable to Samuel S. Hill, twelve months after date. The defendants were partners in trade, and the note was signed in the partnership name, "Thomas Evans & Sons," by Thomas Evans, the senior partner. The defence set up was the following: On the 11th December, 1835, the plaintiffs united with several others, merchants of the city of New-York, in executing a power of attorney to Charles B. Granniss and Henry M. Meade, authorizing them to demand and receive from Hill, the endorser of the note in question, all sum and sums of money due, owing and payable to them, and, on receipt. of the same, to execute acquitances and discharges. This power of attorney was executed by Marcus Spring, one of the plaintiffs, by affixing thereto his own name and the name of his firm, thus: "Marcus Spring for Wells & Spring," and adding to the signature a seal. This power of attorney was received in evidence, though objected to by the plaintiffs' counsel. The defendants next offered in evidence an instrument in writing, executed by Granniss & Meade, bearing date 12th December, 1835, whereby they acknowledged to have received of Hill, the endorser of the above notes, $9000 in money; in consideration of which, they promise to surrender to Hill, without delay, such notes as had been given to him by different individuals for his accommodation, and which had been endorsed by him, in lieu of which they stated they had received his individual notes; also, they promised to discontinue all suits upon such notes, and to refrain from causing any costs to be made on the same. They also stated that they were to receive, whenever they should require the same, all transfers of real estate made by Hill, and particularly a transfer made to H. Mather, "for the payment of the respective notes." This instrument was executed thus: "Cha's B. Granniss, L. s. Henry M. Meade, L. s." Its admission in evidence was objected to, and rejected by the judge. The defendants also offered in evidence the transfer to Mather, referred to in the instrument executed by Granniss & Meade. It was a deed in trust, executed by Hill to Henry Mather, bearing date 24th October,

Evans v. Wells.

1835, conveying sundry parcels of land, and was accompanied by a declaration of trust, executed by Hill and Mather, specifying the objects of the conveyance: which were, that Mather should offer certain parcels of the property to certain specified creditors in payment of their demands; and on their refusal to accept the same, to sell or mortgage the property, and appropriate the proceeds to the payment of the debts. Among others, certain parcels of the property were appropriated to the payment of the note of $3000 of Thomas Evans & sons. The defendants, in connection with those instruments, offered to prove by parol, that the deed from Hill to Mather was the transfer referred to in the instrument executed by Granniss & Meade; that the note in coutroversy was an accommodation note, given by the defendants to Hill without consideration, and was the identical note specified in the declaration of trust; and that Mather had always been ready and willing to execute to Granniss & Meade a conveyance of the real estate specified in the deed of trust, but had never been requested so to do: all which evidence was objected to by the plaintiffs, and rejected by the judge. The defendants further offered to prove, that the instrument executed by Granniss & Meade was executed under and in pursuance of the power of attorney given to them, and that the plaintiffs received their proportion of the $9000 specified in the instrument; which evidence was objected to by the plaintiffs' counsel, so far as the same tended to prove that the instrument executed by Granniss & Meade was obligatory upon the plaintiffs as a release. The objection was sustained, and the evidence rejected; the judge, however, ruled that if the defendants desired to prove the payment of any money to the plaintiffs as a credit or partial payment, or that the plaintiffs had received a conveyance of land, or any other thing, they were at liberty to do so; and that, for that purpose, but not for the purpose with which it was offered by the defendants, the deed to Mather and the declaration of trust were admissible in evidence. Under which decision, however, no evidence was given by the defendants. The defendants finally offered to prove that the note in question was made by Thomas

Evans v. Wells.

Evens, one of the partners of the firm of Thomas Evens & Sons, in the name of the firm, for his individual benefit: that it was made in blank, as it respected the amount, and placed in the hands of Hill for the purpose of borrowing money thereon, for the individual benefit of Thomas Evens, and that Hill had no authority to fill the blank, or issue the note for any other purpose; and that, in violation of the trust confided in him, he passed the note to the plaintiffs for goods purchased of them for his own benefit, without the knowledge, consent or approbation of the defendants, or either of them; the defendants conceded that the plaintiffs received the note from Hill, before its maturity, for goods sold by them to Hill, and that they were holders for value: which evidence was objected to by the plaintiffs, and rejected by the judge. The counsel for the defendants insisted upon the state of facts lastly offered to be proved, 1. That the note never had legal inception or existence; and 2. That at all events, the plaintiffs could not recover without proving that all the defendants had assented to the making of the note in the name of the firm, or that it was made for the benefit of the firm, and within the scope of the partnership business. The jury, under the direction of the judge, who charged them that the plaintiffs were entitled to recover, found a verdict for the plaintiffs, for the amount of the note and interest. The defendants having excepted to all the decisions of the judge, except the first, and to the charge given to the jury, applied to the supreme court for a new trial, which was denied, and judgment rendered for the plaintiffs. See opinion delivered in that court, 20 Wendell, 254. The defendants thereupon sued out a writ of error. The case was argued in this court by

J. A. Collier, for the plaintiffs in error.

J. S. Bosworth, for the defendants in error:

Points relied upon by the plaintiffs in error.

I. The Messrs. Evens, defendants below, stood as between them and Hill, in the relation of sureties only; the

Evans v. Wells.

note being an accommodation note, and Hill the principal debtor; and if the holders of the note made an arrangement to discharge Hill from his liability, the sureties were of course discharged. 5 Wendell, 85. 17 id. 214. 9 id. 172. 13 id. 375. 11 id. 312. 8 East, 576. Chitty on Bills, Phil. ed. of 1826, 301, 347. Selw. N. P. 4th ed. 348. 16 Johns. R. 41, 70. 13 id. 353. 6 Mass. R. 85. 11 Vesey, 410. 3 Kent's Comm. 1st ed. 77. 6 Mass. R. 430. Johns. R. 224, 225. 5 Mass. R. 543. 3 Conn. R. 213. 1 Cowen, 49. 2 R. S. 354, § 32. 5 Johns. R. 268, 386. 3 Johns. Cas. 243. 2 Johns. R. 345. 4 Wendall, 360. 3 id. 66. 7 Cowen, 224.

10

II. The deed and declaration of trust, and the release of Granniss & Meade, offered upon the trial, were properly admissible in evidence, and ought not to have been rejected by the circuit judge. 1. The power of attorney was ample, and gave to Granniss & Meade full power and authority to compound, to give discharges, and generally to do all things "as fully and amply, to all intents and purposes, as Wells & Spring could do if personally present, or as if the same required more special authority, and thereby ratifying and confirming all that the said attorney should do." 2. The release acknowledged the receipt of $9000 in cash, and the individual note of Hill, and recognized and provided for the acceptance of the lands conveyed to H. Mather, for the benefit of Wells & Spring and the other creditors, and stipulated to give up to Hill the very note in question, and was sufficient proof of accord and satisfaction. These papers ought to have been admitted either as part of the history of the transaction, or as evidence of what had been done, and what had been received, by the agents of the plaintiffs below. Story on Agency, 137 to 142, 143, n. 145, 150, 151, 152, 154, n. 2, 202, 239, 245, 246, 247. 1 Gall. 630. 9 Cranch, 453. 8 Pick. 56. 6 Wendell, 284. 9 Conn. R. 545, 555, 556. 13 Wendell, 488. 3 Johns. R. 70. Paine's Cir. R. 252. Pothier on Ob. n. 82. 10 Wendell, 87, 399. 16 Mass. R. 461. 2 Brod. & Bing. 452. 3 Chit. on Com. & M. L. 197, 198. 12 Wendell, 413, 417. 15 Johns. R. 1. 16 id. 86, 89. 2 Johns. Ch. R. 429. 8 Cowen, 191. 2 VOL. XXII.

.

42

Evans v. Wells.

Stark. Ev. 24, 34, 594, 595. 1 Strange, 537. 1 Esp. R. 142. 2 id. 511. 2 Kent's Comm. 150, 631. 8 Greenl. 442. Wright's Ohio R. 72. Ohio Cond. R. 571. 4 Rawle, 294. 4 Taunt. 511. 5 Watts' R. 490, 17 Wendell, 40. 18 Johns. R. 122. 12 id. 444. 18 id. 126. 5 Moore & Payne, 549. 11 Johns. R. 70. 8 Pick. 44. Cowp. 56. 2 Campb. 24.

III. The parol evidence, offered on the trial, that the note in controversy was an accommodation note given to Hill without consideration, and one of the notes specified in the declaration of trust and in the release of Granniss & Meade, was proper and ought not to have been rejected. Johns. Dig. tit. Evidence, 11. 14 Johns. R. 210. 20. id. 239. 7 Cowen, 48.

IV. The evidence offered on the trial, that the plaintiffs below received their proportion of the $9000, ought to have been admitted, and was improperly rejected by the circuit judge. 4 Wendell, 465. 6 Dana, 114. Wright's Ohio R. 553. 662. 5 Moore & Payne, 549. 1 Johns. Cas. 110. 7 Cowen, 60. 7 Watts' R. 121.

V. The decision and charge of the circuit judge, that the plaintiffs were entitled to recover the amount of the note and interest, was erroneous.

Points relied upon by the defendants in error:

I. The instrument of December 12, 1835, executed by Granniss & Meade to Hill, is in terms and legal effect their deed, and not the deed of Wells & Spring. Granniss & Meade covenant in their own names, and in their own behalf. They do not even designate themselves as agents, or allude to Wells & Spring as interested in, or to be affected by it. It was therefore properly rejected. A deed or other written contract to be obligatory upon a principal, when made by an agent, must be made and executed in the name of the principal. If not made in the principal's name, it is not his contract. It cannot be declared upon as his contract, nor be shown to be such by any evidence extrinsic to the deed itself. Moor, 70. Comb's case. 9 Rep. 76, 77. Bogart v. De. Bussy, 6 Johns. R. 94. Stone v. Wood, 7 Cowen, 453. Spencer v. Field, 10 Wendell, 86. Elwell v.