Huron County Banking Co. v. Oberlin Gas & Elec. Co.

32 Ohio C.C. Dec. 390, 19 Ohio C.C. (n.s.) 151

• Court: Lorain Circuit Court
• Decided: April 26, 1911
• Status: Published

Opinion

HENRY, J.

Tbe parties stand bere as tbey stood' below. There the court sustained the demurrer of the defendants Hill and Hay to the petition of the plaintiff praying personal judgments against each of them as well as the Oberlin Gas & Electric Co. upon a promissory note as follows:

“$2,500.00 Oberlin, Ohio, December 29, 1909.

“Four months after date, for value received, We or either of us, promise to pay to the Huron County Banking Company of Norwalk, Ohio, or order, at its banking office, twenty-five hundred and 00-100 — dollars, with interest at the rate of 7 per cent, per annum, payable semiannually, having deposited with said banking company the following described property, to wit: eight (8) first Consolidated 6 per cent. Mortgage Bonds of the Oberlin Gas & Electric Company par value $500 each; same being Nos. 329-336 inc. — as collateral security for the payment of the above indebtedness of the undersigned to said banking company. The extension of the time of payment or renewal of the indebtedness evidenced by this note, shall in no way release the undersigned or either of them, or the collateral security above described, or any substituted or additional security which may be furnished; and we, or either of us, hereby agree to deposit with said banking company, upon its demand, such additional collateral security as said banking company may from time to time require. On the non-performance of the foregoing conditions, provisions and agreements as to furnishing additional collateral, or upon the non-payment of the above mentioned liability, then and in either ease, we or either of us hereby authorize and empower the said banking company to sell, assign and deliver the whole or any part of the above securities or any substitutes therefor, or any additions thereto at any brokers’ board or at public or private sale at the opinion of said banking company or of any one or more of-its officers without either public advertisement or personal notice to us or either of us, both of which are hereby expressly waived. If said securities are sold at public sale the said banking company may itself purchase the whole or any part thereof, free from all rights of redemption on the part of us or either of us, which right is hereby waived and released; and after deducting all legal and other costs and expenses for collection, sale and delivery of said securities, the residue of the proceeds of such sale or sales so made shall be applied upon the payment of the above liability; the overplus, if any, to be paid to us, or either of us.

“The Oberlin Gas & Electric Co.,

“J. C. Hill, President,

“Albert E. Hay, Treasurer.”

There are no endorsements nor credits upon said note.

We hold that the words “or either of us,” and other kindred phrases in the body of this note, distinguish this case from that of Aungst v. Creque, 72 Ohio St. 551 [74 N. E. 1073], which decided that:

‘ ‘ But where a promissory note is signed by the proper officer of a corporation in the corporate name, and underneath the corporate name he signs his own name, affixing thereto his appropriate official title as an officer of said corporation, in the absence of anything in the body of the instrument requiring a different construction, such note will be construed and held to be the note of the corporation only, and not the note of the officer so signing, or the joint note of such officer and the corporation. ’ ’

Judgment reversed for error in sustaining demurrer, and cause remanded.

Marvin and Winch, JJ., concur.