Kingman v. Kelsie

Massachusetts Supreme Judicial Court

Kingman v. Kelsie

57 Mass. 339

CourtMassachusetts Supreme Judicial Court

DecidedMarch 15, 1849

StatusPublished

This text of 57 Mass. 339 (Kingman v. Kelsie) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kingman v. Kelsie, 57 Mass. 339 (Mass. 1849).

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Opinion

Shaw, C. J.

This is an action of assumpsit against the defendant, severally, upon a promissory note purporting to be the joint and several note of a military company, signed by the defendant as their treasurer. The note purports to be that of the members of Light Infantry Company G, first regiment, first division, Massachusetts militia, signed by Kelsie, the defendant, “ Treasurer for Company G.” This does not purport to be the note of Kelsie, but that of the members, acting by Kelsie. It was insisted, that by the term “ We,” he must have meant to include himself; but not necessarily. “ We ” is immediately explained by the description, “ the members, &c.” Now, if a number of individuals may bind themselves, jointly and severally, by a significant description, by which the persons may be identified, without any names, they may do so by one of their own number, or by any other person duly empowered. But, in order to bind any body by such a contract, two things must be proved; first, that the paity signing was empowered to make such contract; and, second, that the party sued was one of the number included in the description, and bound by the power. If the party signing is one of the number embraced in the description, no further proof of power would be required to bind himself. But it is obvious, that, unless it appears on the note itself, or by the signature, as it might, as “ For self and Company G,” or words equivalent, proof aliunde must be given to show that the signer was one of the promisors. It appears to us. [341]*341therefore, clear, that the mere production of the note, without proof that the signer was a member, does not show, that it is the note of the signer, as one coming within the description of persons whom the note purports to bind. If he was not duly authorized to sign the note for the members of the company individually, then he might be liable, on another ground, oil a special declaration charging that fact. Long v. Colburn, 11 Mass. 97; Ballou v. Talbot, 16 Mass. 461. Had it been proved, that the defendant was one of the company, and so bound by the note, perhaps, according to the rule, that a contract may be declared on according to its legal effect, this would have been sufficient to support the special count in the declaration on the note, as his note, or a count in indebitatus assumpsit for money had and received.

Exceptions sustained.

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Shaw, C. J.

This is an action of assumpsit against the defendant, severally, upon a promissory note purporting to be the joint and several note of a military company, signed by the defendant as their treasurer. The note purports to be that of the members of Light Infantry Company G, first regiment, first division, Massachusetts militia, signed by Kelsie, the defendant, “ Treasurer for Company G.” This does not purport to be the note of Kelsie, but that of the members, acting by Kelsie. It was insisted, that by the term “ We,” he must have meant to include himself; but not necessarily. “ We ” is immediately explained by the description, “ the members, &c.” Now, if a number of individuals may bind themselves, jointly and severally, by a significant description, by which the persons may be identified, without any names, they may do so by one of their own number, or by any other person duly empowered. But, in order to bind any body by such a contract, two things must be proved; first, that the paity signing was empowered to make such contract; and, second, that the party sued was one of the number included in the description, and bound by the power. If the party signing is one of the number embraced in the description, no further proof of power would be required to bind himself. But it is obvious, that, unless it appears on the note itself, or by the signature, as it might, as “ For self and Company G,” or words equivalent, proof aliunde must be given to show that the signer was one of the promisors. It appears to us. [341]*341therefore, clear, that the mere production of the note, without proof that the signer was a member, does not show, that it is the note of the signer, as one coming within the description of persons whom the note purports to bind. If he was not duly authorized to sign the note for the members of the company individually, then he might be liable, on another ground, oil a special declaration charging that fact. Long v. Colburn, 11 Mass. 97; Ballou v. Talbot, 16 Mass. 461. Had it been proved, that the defendant was one of the company, and so bound by the note, perhaps, according to the rule, that a contract may be declared on according to its legal effect, this would have been sufficient to support the special count in the declaration on the note, as his note, or a count in indebitatus assumpsit for money had and received.

Exceptions sustained.

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Bluebook (online)

57 Mass. 339, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kingman-v-kelsie-mass-1849.

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