K-Ross Building Supply Center, Inc. v. Winnipesauke Chalets, Inc.

432 A.2d 8, 121 N.H. 575, 32 U.C.C. Rep. Serv. (West) 1515, 1981 N.H. LEXIS 366
Supreme Court of New Hampshire·Decided June 26, 1981·No. Nos. 80-286; 80-301·Published·Cited by 9 cases

Opinion

Per curiam.

The plaintiff, K-Ross Building Supply Center, Inc., seeks to hold defendant Arnold Appell, an employee of defendant Winnipesaukee Chalets, Inc. (Winnipesaukee), personally liable on a $3,000 check that Appell gave the plaintiff in payment of a corporate debt owed the plaintiff by Winnipesaukee. After a hearing, the Master (Paul A. Gruber, Esq.) recommended [577] that defendant Appell be held jointly and severally liable in the amount of $3,000 along with Winnipesaukee and defendant Leonard Appell, also an employee of Winnipesaukee. The Superior Court (Johnson, J.) approved the master’s recommendation, and defendant Appell appealed.

During the summer of 1979, Arnold Appell contacted the plaintiff’s credit manager, Sidney D. Gold, about purchasing pipe worth $3,000. The plaintiff and Winnipesaukee had enjoyed a satisfactory business relationship with one another since 1977. Because Winnipesaukee’s account was considerably past due, however, Gold told Appell that he could not extend any more credit to Winnipesaukee. The parties agreed that a check for $3,000 would be given to the plaintiff’s driver when he delivered the pipe to Winnipesaukee. The driver arrived with the materials but there was no check awaiting him. Nevertheless, because Gold had been able to obtain payment from Winnipesaukee in the past, he instructed the driver to leave the pipe at Winnipesaukee’s work site.

Several days later, in July 1979, Gold visited Appell at Winnipesaukee’s local office and requested payment for the shipment of pipe. Appell signed an undated check in the amount of $3,000 and gave it to Gold. According to the master’s report, this “check did not bear any printed name as to who was the owner of the account.” Appell told Gold that there were not sufficient funds to cover the check at that time but that he would advise Gold when the check could be cashed.

The next day Gold contacted the drawee-bank and verified the fact that there were insufficient funds in the account on which the check was drawn to cover it. During the next several months, Gold contacted Appell on numerous occasions regarding the status of the check and was always told that the check still could not be covered. Sometime during this period, the plaintiff recovered approximately two-thirds of the pipe in question and credited $2,146.15 to Winnipesaukee’s account. Finally, on December 4, 1979, the plaintiff dated the check and presented it to the draweebank for payment. The check was returned for insufficient funds, and this litigation ensued.

Defendant Appell (hereinafter the defendant) contends that the master erred in finding him personally liable on the check. He argues that the check was a corporate check drawn on Winnipesaukee’s account, that he signed the check on behalf of Winnipesaukee to satisfy a corporate debt, and that, therefore, he cannot be held personally liable on the instrument.

[578] For reasons that escape us, the check in question is not contained in the record before us. Nevertheless, it is clear from the transcript, the parties’ briefs, and the master’s report that the corporation’s name did not appear on the check. Nor did the defendant, in signing the check, indicate that he was acting in a representative capacity. Rather, he simply signed the check in the lower right-hand corner as would the drawer of an instrument. See U.C.C. § 3-402, Official Comment, 2 U.L.A. 308 (1977). Thus, there is nothing on the face of the instrument to indicate that it represented anything other than the defendant’s personal obligation.

The defendant asserts, however, that Gold, in accepting the check, knew in fact that the defendant was issuing a corporate check on behalf of the corporation. There is conflicting testimony on this issue. In any event, for the reasons that follow, we conclude that this evidence can have no bearing on the issue of the defendant’s liability.

RSA 382-A:3-403(2) provides:

“An authorized representative who signs his own name to an instrument
(a) is personally obligated if the instrument neither names the person represented nor shows that the representative signed in a representative capacity....”

(Emphasis added.) The official comment to this provision of the Uniform Commercial Code makes it clear that when, as in this case, the agent signs his name only, such signature “personally obligates the agent and parol evidence is inadmissible under subsection (2)(a) to disestablish his obligation.” U.C.C. § 3-403, Comment 3, 2 U.L.A. 311 (1977); accord, Norfolk County Trust Co. v. Vichinsky, 5 Mass. App. Ct. 768, 768, 359 N.E.2d 59, 60 (1977); Barden & Robeson Corp. v. Ferrusi, 52 A.D.2d 1061, 1062, 384 N.Y.S.2d 596, 597 (1976). This rule applies even between the immediate parties to the instrument, for “[o]ne who executes . . . [an instrument] in his own name with nothing on the face of the . . . [instrument] showing his agency cannot introduce parol evidence to show that he executed it for a principal, or that the payee knew that he intended to execute it as agent.” (Emphasis added.) Bostwick Banking Co. v. Arnold, 227 Ga. 18, 22, 178 S.E.2d 890, 893 (1970); see Giacalone v. Bernstein, 348 So. 2d 679 (Fla. Dist. Ct. App. 1977); Norfolk County Trust Co. v. Vichinsky supra; Barden & Robeson Corp. v. Ferrusi supra. Thus, “[e]ven if the person taking the instrument knows that the agent is signing in a representative capacity, the agent cannot introduce parol evidence to show that [579] his signature was made for another.” J. White & R. Summers, Handbook of the Law Under the Uniform Commercial Code § 13-4 at 493 (2d ed. 1980). Because the check signed by the defendant indicated neither the principal’s name nor the fact that the defendant was signing in a representative capacity, he is personally liable on the check. RSA 282-A:3-403(2)(a).

The defendant next argues that even if RSA 382-A:3-403(2)(a) imposes personal liability on him, he nevertheless has a defense to liability. Specifically, the defendant contends that Gold, the plaintiff’s representative, accepted the check with the understanding that it would not be presented for payment until the defendant informed the plaintiff that there were sufficient funds to cover the check and that, because the plaintiff dated and presented the check for payment without having been notified by the defendant that it could do so, he cannot be held liable on the check. We cannot accept this argument.

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K-Ross Building Supply Center, Inc. v. Winnipesauke Chalets, Inc., 432 A.2d 8, 121 N.H. 575, 32 U.C.C. Rep. Serv. (West) 1515, 1981 N.H. LEXIS 366 (N.H. 1981).

432 A.2d 8 (K-Ross Building Supply Center, Inc. v. Winnipesauke Chalets, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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