Bank of Rochester v. Monteath

1 Denio 402

• Court: Court for the Trial of Impeachments and Correction of Errors
• Decided: July 15, 1845
• Status: Published

Opinion

By the Court, Bronson, Oh. J.

The objection to recovering against the defendants as acceptors is, that their names do not appear upon the bills; and as a general rule, there can be no recovery on a bill or note against one whose name does not appear upon it. When the agent acts in his own name, he binds himself, and not his principal. (Pentz v. Stanton, 10 Wend. 271; Thomas v. Bishop, 2 Str. 955 ; Barlow v. Bishop, 1 East, 432 ; 3 Esp. R. 266, S. C.; Leadbitter v. Farrow, 5 Maule & Selw., 345; Stackpole v. Arnold, 11 Mass. 27; Allen v. Coit, 6 Hill, 318; Chitty on Bills, 32—4, ed. of 42.) If we do not look beyond the fact that William Monteath was the agent of the defendants, then, by accepting the bills in his own name, he bound himself, and not the defendants.

But the defendants and Allen were partners in running the Clinton line of canal boats, under an agreement that the business at Albany should be done in the name of William Monteath. That was the partnership name, for all the purposes of transacting the business of the firm at Albany; and the partners could bind themselves by that name as well as by any other. (Bank of South Carolina v. Case, 8 Barn. & Cress. 427 ; Ex parte Bolitho, Buck's Cas. 100 ; Rogers v. Coit, 6 Hill, 322; Mason v. Rumsey, 1 Campb. 384.) The bills were drawn on the partners by their firm name of William Monteath; and in that name the bills were accepted by the authorized agent of the firm.

If William Monteath had also been in business on his own account, then the acceptance by writing his name on the face of the bills would have been an equivocal act; and it would have been necessary to show that he accepted on account of the partnership, and not in his own private business. (Manufacturers and M. Bank v. Winship, 5 Pick. 11; The U. S. Bank v. Binney, 5 Mason, 176; Ex parte Bolitho, Buck’s Cas. 100; Collyer on Partn. 226—7.) But there was no evidence that William Monteath was engaged in any other business than the affairs of this partnership. We must then regard these bills as drawn on, and accepted by, the house doing business in the name of William Monteath, which was composed of the defendants and John Allen ; and as the non-joinder of Allen has not been pleaded in abatement, the defendants must answer alone.

In the view which has been taken of the case, the PwkmtW ts are parties to the bills as acceptors, and liable to the plaintiffs in that character. I do not see why they are not also liable both as drawers and endorsers of the bills. The name of their firm at Rochester, was John Allen, and in that name the bills were drawn and endorsed. It does not appear that Allen was engaged in any other business, so that the bills could have been drawn on his private account. And besides, the hills appear on their face to have been drawn for “ towing,” “ tolls,” and “ balances due captains,” which are things connected with the partnership business. And the bills were discounted on the credit of the partnership. As the defendants drew on themselves, they had notice of the dishonor of the bills in the very act of dishonoring them; and may, therefore, be held answerable both as drawers and endorsers.

There would, perhaps, be a difficulty in the way of recovering for money lent, without showing that the avails of the drafts actually went into the partnership business. (Allen v. Coit, 6 Hill, 318; Pentz v. Stanton, 10 Wend. 271; Denton v. Rodie, 3 Campb. 493; Ducarry v. Gill, 4 Carr. & Payne. 121.) But it is enough that the defendants are liable as parties to the bills.

Although Allen may have departed from the agreement between himself and his partners in drawing the bills, that cannot affect third persons who .took the paper without notice. (Bank of South Carolina v. Case, 8 Barn. & Cress. 427; Whitaker v. Brown, 16 Wend. 505, per Chancellor Walworth.)

Thé several objections made by the defendants have been sufficiently noticed in examining the leading features of the jase. We think the objections were properly overruled.

New trial denied.