Bryant v. Eastman

61 Mass. 111

• Court: Massachusetts Supreme Judicial Court
• Decided: March 15, 1851
• Status: Published

Opinion

This case was argued and decided at November term, 1850.

Shaw, C. J.

As to the first point, it seems to the court clear, upon the authorities, that the defendant was an original promisor. It is proved that he put his name on the back of the note, before it was received by Derby, for the purpose of giving credit to the note, in which case he is not regarded as indorser or guarantor, but as a surety acting upon the same consideration with the principal promisor. It may be regretted that this rule has been adopted, but it is now too well established to be questioned. Hunt v. Adams, 5 Mass. 358, and 6 Mass. 519; Samson v. Thornton, 3 Met. 275; Union Bank v. Willis, 8 Met. 504. Such a note is regarded a joint and several note, because each promises to pay, and both unite in the same promise.

The next point appeared at first to be one of more difficult), namely, whether a note in form payable to the New England Steam & Gas Pipe Company, could be treated as a note payable to James Derby or order, and sued by him or his indorsee. Upon consideration, the court are of opinion that the action may be maintained.

It was proved that at the time the note was made, there was no company actually existing, carrying on business, of the name indicated as payees; such a company had been incorporated by the legislature of another state, but no company had been organized. It further appeared that James Derby was carrying on the business of the manufacture and sale of steam and gas pipes, and that Lyon, with whom the defendant gave the note as co-promisor, had contracted a debt with Derby, thus dealing under the name in question, and that this note was given in satisfaction of that debt. These are facts extraneous to the note, not repugnant to it, and therefore may be proved by evidence aliunde.

It is a well settled rule, that a note or written simple contract may be declared on, according to its legal effect and operation. It has been decided that a note made to Richardson, Metcalf & Co., might be declared on in the name of the Medway Cotton Manufactory, on proof that such name was used by that corporation. Medway Cotton Manufactory v. Adams, 10 Mass. 360. In a comparatively recent English case, where a note was made payable to a married woman during coverture, which, of course, was a note in legal effect payable to the husband at his election, it was declared on as a note by which the defendant promised to pay to John Fearn, by the name of Mrs. Rachel Fearn, and by said John Fearn indorsed to the plaintiff; and it was held good. Burrough v. Moss, 10 B. & C. 558. The same principles are adoptéd and affirmed in a recent case in this court. Commercial Bank v. French, 21 Pick. 486.

There is certainly an inconvenience in an individual carrying on business by a name or description other than his own, but we are not prepared to say that it is illegal;

* and the inconvenience to the party himself is, in general, sufficient to prevent it. But there are instances, where, for the sake of notoriety, or preserving the good will of a trade, names are kept up, after the original parties have all disappeared, and the names of the parties really interested have all changed.

We do not consider it as a note payable to a fictitious payee, but as a note given to a real party, or his order, in satisfaction of a real debt contracted with that party, in a name not his own, but assutned and adopted as a business designation.

As this is a promissory note, which might be specially declared on, as a note given by the defendant, payable to Derby, by the name of the New England Steam and Gas Pipe Company, or his order, and by Derby indorsed to the plaintiff, it may be given in evidence, in an action by the indorsee against the promisor, in support of the money counts.

Exceptions overruled

The statute of 1853, c. 156, provides that “ no person, carrying on business in this commonwealth, shall assume or continue to use, in his business, the name or names of any person or persons, formerly connected with him in partnership, or of any other person or persons, either alone or in connection with his own or any other name or designation, without the consent of such person or persons, or of his or their legal representatives in writing; ” and that “ the supreme judicial court shall have power »n equity to restrain by injunction the use of any person’s name in violation of this act.”