
    James P Melledge vs. The Boston Iron Company.
    The presumption that a negotiable promissory note, given for a preexisting debt, is taken in satisfaction of the debt, is a presumption of fact only, liable to be controlled by evidence that such was not the intention of the parties.
    A party, who, having a legal demand against a corporation, takes the persona] note of their general agents therefor, may, notwithstanding, recover of the corporation, on proving either that the note was in fact the note of the corporation, and that the corporation had adopted the signature of their agents as their form of signature, or that he took the note under a misapprehension, caused by the acts of the corporation and their agents, as to the identity of the corporation with the concern designated by their agents’ signature.
    One, who, having sold goods to a corporation, and taken in payment therefor a note signed by their general agents personally, seeks to recover of the corporation, on the ground either that they had adopted, as their signature, the signature of their agents, or that the note of the agents was taken by him under a misap prehension, caused by the acts of the corporation and their agents, as to the ■ identity of the corporation with the concern designated by the signature of the agents, may join, in the same declaration, a count for goods sold with a count on the note.
    A corporation may adopt, for the purpose of signing their notes, the name of a mercantile firm, their general agents, so as to bind the corporation by notes so signed; and such adoption may be inferred from corporate acts, or from the acts and statements of the agents and the silent acquiescence of the corporation, no vote appearing on their records to limit the powers of their agents in this respect,
    A statement, by a judge to the jury, of a rule of law as applied to a hypothetical case, by way of illustration or explanation, is no ground of exception.
    It is no objection to charging a corporation for goods purchased by their agent on their behalf, that the goods were delivered, at places designated by the agent, to a third person, to be used by him, and that the vendor knew at the time of delivery that they were to be so used.
    This was an action of assumpsit, to recover the price of a quantity of Pictou coals, alleged to have been sold and delivered by the plaintiff to the defendants. The declaration contained four counts, namely, a general count, charging the defendants, among other things, with being indebted to the plaintiff for goods sold and delivered, and on an account annexed ; two counts on promissory notes, described therein, alleged to be subscribed by the defendants by the name of Horace Gray and company; and a special count on an alleged agreement, made on the 12th of May, 1847, between the plaintiff and the defendants, for the sale and delivery of a quantity of Pictou coals, and averring a delivery of certain specified cargoes thereof, in pursuance of the agreement.
    The defendants pleaded the general issue; and, requiring the plaintiff to prove his declaration, for specification of matters not proper to be given in evidence under the general issue, upon which they should rely, they alleged : 1st, A payment of each and all claims against them, which the plaintiff might establish under the general issue; 2d, Accord and satisfaction of all claims which the plaintiff might so establish ; and 3d, That an exclusive credit was given by the plaintiff to the mercantile firm of Horace Gray and company, for all the demands set forth in the declaration.
    The case was tried in this court, before Dewey, J., by whom it was reserved and reported for the consideration of the whole court, in substance as follows: —
    The defendants were a manufacturing corporation, established by an act passed on the 13th of June, 1822, by which they were entitled to all the privileges, and made subject to all the duties and requirements, of manufacturing corporations, as contained in the act of 1808, c. 65, for defining the general powers and duties of those corporations.
    The plaintiff produced the notes declared on, and also in support of his action, gave in evidence a paper dated May 12th, 1847, addressed by him to the Boston Iron company, by which he agreed to deliver to the latter, at suitable wharves in Boston, during the then present year, from one to three thousand chaldrons of coarse Pictou coals, (accidents at the mines that might prevent the delivery of the same excepted) at $6.60 a chaldron, custom-house measurement, on a credit of six months.
    It was also in evidence, for the plaintiff, that several cargoes of coals were delivered by him, pursuant to the agreement, at wharves in Boston designated by the defendants through the agency of Horace.Gray and company, some of them at the works' of the Massachusetts Iron company at South Boston; that bills were thereupon made out, by which the defendants were charged as the debtors for the coals so delivered, which bills were sent to the counting-room, occupied in common by the defendants, and by Horace Gray and company ; and that notes for corresponding amounts and terms of credit were returned therefor, which were received by the plaintiff in payment of the bills rendered ; the notes given in payment for the cargoes delivered at South Boston, among which were the notes declared on, being signed “ Horace Gray & Co.,” and the others “ Boston Iron Co., by Horace Gray & Co.”
    The defendants contended, that the contract in question was not made with the Boston Iron company, but with Horace Gray and company; that the paper declared on and in evidence was not the contract; that the coals sued for were not all delivered to the defendants, but that the defendants paid for all they had received; and that if the contract was made with the Boston Iron company, and the coals were delivered to them, the plaintiff had received payment of the price, by taking the notes of Horace Gray and company for the greater part of the sum due.
    The plaintiff contended, that the coals were delivered to the defendants, according to the order of Horace Gray and company, who were the sole agents of the defendants; and he offered to give up to the defendants the notes of Horace Gray and company declared on, to be cancelled, if the defendants would receive the same, which the defendants declined to do. The plaintiff also contended, that the notes of Horace Gray and company were received by him through mistake and ignorance, occasioned by the acts and fault of the defendants; and, therefore, that he had a right to maintain this action against the defendants, who were originally liable; and, further, that the defendants and Horace Gray and company had so transacted their business, as to hold themselves out to the world as one and the same concern ; and, therefore, that the defendants were bound by the notes of Horace Gray and company given in payment of the debts of the former, and had adopted such notes as their own.
    It appeared in evidence, that the defendants were duly organized and engaged in the business of manufacturing iron, employing workmen for that purpose, and buying and selling iron, and transacting other business, incidental thereto, at the Mill-dam, in Boston; that for several years prior to May, 1847, the persons constituting the Boston Iron company had been reduced to a small number, of whom Horace Gray was the largest proprietor; that they had no meetings for business, except their annual meetings ; that their whole business, for some years, had been conducted, in fact, by Horace Gray and company as agents, though it did not appear that there was any vote on their books appointing them as their agents, or appointing any agents, or defining or limiting the powers of agents, except votes giving Horace Gray and company general authority to sign and indorse notes for payment of money in behalf of the defendants; that the house of Horace Gray and company was a mercantile firm, consisting of Horace Gray and Nathaniel Francis, engaged in business in Boston, and having the care and agency of many other companies and works for the manufacture of iron, having distinct names, of which Horace Gray was the sole or principal proprietor; that the coals for all these establishments were bought, and contracts made, and their business conducted by Horace Gray and company, generally in their own name, they receiving a commission for so doing, and often giving their notes for debts thus incurred; that Horace Gray and company and the defendants transacted their business in the same counting-room, upon which each had a sign affixed; and that after the notes declared on were given and before they became due, Horace Gray and company failed, and went into insolvency, and were, in fact, insolvent.
    The plaintiff introduced witnesses, who testified, that they had had dealings with the Boston Iron company, and with Horace Gray and company, and supposed them to be one and the same concern; that they had made and sent bills to the Boston Iron company, and to the Massachusetts Iron company, and had received in payment thereof, especially of the latter, the notes of Horace Gray and company; that the Boston Iron company had paid the wages of persons engaged in the works at South Boston; and that the title to the land and water-power in the occupation and use of the Boston Iron company was in Horace Gray’s name.
    
      The defendants offered evidence to prove, that the Boston Iron company kept their accounts distinct from those of Horace Gray and company, and that they gave notes signed “ Boston Iron company, by Horace Gray and company,” for the debts of the company; and, further, that for one of the cargoes of coals delivered by the plaintiff, they sent back a bill made out therefor by the plaintiff to the Boston Iron company, and requested two bills to be made out and returned, one for a portion of the coals to the Boston Iron company, and the other, to the Massachusetts Iron company, for the former of which a note was given in the form above described, and for the latter the note of Horace Gray and company.
    Upon the foregoing evidence, the defendants prayed the judge to instruct the jury, as follows: —
    1. That the plaintiff, having counted on the notes in evi dence, and now seeking to recover on them, could not at the same time aver that he had so surrendered the notes, that they did not amount to payment.
    2. That, as the defendants’ corporate name did not appear on the notes, and'the notes on their face did not disclose any agency, Horace Gray and company, the signers, and not the defendants, were bound thereby.
    3. That even if the plaintiff had mistaken the law in the latter respect, this would not give him a right to surrender the notes, and treat them as no longer payment.
    4. That the plaintiff would not be entitled to surrender the notes, and treat them as no longer payment, unless he should first satisfy the jury, that Horace Gray and company held out to him, that their names signed to these notes bound identically the same parties and no others that the name of the Boston Iron company would do; that he acted on the faith of such holding out; and that such holding out was knowingly sanctioned by the defendants, or was so public and so often repeated, that the jury might justly infer that it was known to the defendants, and sanctioned by them.
    5. That as the rights of the parties did not turn upon the distinction between a corporation and a partnership, but upon the identity of the persons represented by the different names of Horace Gray and company, and the Boston Iron company, and upon the plaintiff’s belief of that identity, warranted by the conduct of Horace Gray and company, and knowingly sanctioned by the defendants; it was not necessary that the plaintiff should have known that the defendants were a corporation, and immaterial whether he thought them a corporation or a partnership; and that if the jury should find, that such holding out was in a few cases only not shown to have been known by the plaintiff, this would not justify them in finding that the plaintiff knew of such holding out, or acted upon the faith of it.
    6. That notice to the plaintiff, that there were turn concerns, one trading under the name of the Boston Iron company, and acting by Horace Gray and company, as their agents, and the other trading under the name of Horace Gray and company, acting in their own names, was notice that the name of Horace Gray and company did not bind the Boston Iron company, and that if the plaintiff thereupon assumed, without inquiry, and contrary to the fact, that these concerns were composed of identically the same persons, this assumption was at his own risk, and would not entitle him to surrender the notes, and aver that they were no longer payment.
    7. That if the plaintiff knew, when the last two cargoes of coals were delivered, that they were delivered to the Massachusetts Iron company, to be used by them, and, in point of fact, Horace Gray and company, as agents of the Boston Iron company, had no authority to make such delivery, the plaintiff could not charge the Boston Iron company for coals so delivered.
    8. That the acts of Horace Gray and company, and the knowledge of Horace Gray and company, were not the acts or knowledge of the defendants, except in reference to those matters which were within the scope of their authority as agents; and that if Horace Gray and company, without authority from the defendants, held out to the public that their names would bind the defendants, the latter were not bound by the knowledge of Horace Gray and company, that they had so held themselves out; and that to bind the defendants. it was necessary to bring home knowledge to them in some other way than by showing such knowledge on the part of Horace Gray and company.
    The presiding judge stated to the jury, that the case presented two general questions, namely : 1st, Whether there was an original indebtedness, on the part of the defendants, to the plaintiff, as alleged by him ; and 2d, Whether such indebtedness, if it once • existed, had been discharged by the notes received by the plaintiff, with the signature of Horace Gray and company, to the extent of such notes.
    The judge then instructed them, as to the first inquiry, that the burden of proof was on the plaintiff, to show such original indebtedness; and that in order to establish such indebtedness, and maintain the present action, it was necessary for the plaintiff to show a delivery of the coals in pursuance of the contract, and at the place stipulated therein, if one was specified, unless the place was changed with the consent of the vendee; but that if the vendee, before the delivery, had signified to the vendor, that he wished to have them delivered at another place, and the delivery was thereupon made in accordance with the directions of the vendee, such delivery would be good and sufficient, and the vendee could not object to the place of the delivery.
    Upon the second point, the jury were instructed, that the taking of a negotiable promissory note for a preexisting debt was primd facie a discharge of the original indebtedness ; that the burden was on the plaintiff to show some sufficient and legal reason for taking the case out of the general rule; that he must control the effect which the law otherwise gives to the acceptance of negotiable notes, by the case shown upon the evidence, or the receiving of them would operate to discharge the preexisting debts for which they were received ; and that in the present case, as, on the face of these notes, they purported to be the notes of third persons, the plaintiff had the further burden to show some sufficient reason why the receiving of them did not discharge all liability on the part of the defendants, to the amount of such notes.
    The plaintiff had assumed this burden, and had attemntcd to show: 1st, That the notes in question were in fact the notes of the defendants, who had adopted the form here used, as their mode of signature to contracts of this nature; 2d. That the plaintiff, having a legal demand against the defendants for articles of merchandise sold to them, received the notes on account of such indebtedness, under a misapprehension of fact as to the identity of Horace Gray and company and the Boston Iron company ; the plaintiff acting under the belief, that they were the same, and such belief being wholly caused by the acts of the defendants and their agents, to whom were intrusted the superintendence and control of all their purchases and payments, and the general management of their business.
    As to the various prayers for instructions made on the part of the defendants, the judge instructed the jury as follows : —
    1. The plaintiff was not deprived of any right that would attach to a present surrender of these notes, by reason “ of his having counted on them, and now seeking to recover on them,” nor was he barred thereby of his right to recover on the other counts, if upon the case made he was otherwise entitled to recover on such counts, and not upon the notes.
    2. The jury were instructed, that the second prayer was adopted as correct in principle, and the jury would so consider it; but that this ruling was not to be@ understood to prevent the plaintiff from maintaining his action, if the jury should be satisfied: 1st, That these notes were in fact the notes of the Boston Iron company, executed under a name adopted and sanctioned by them as indicative of their contracts; or, 2d, That the plaintiff received these notes upon a legal demand against the defendants, under a misapprehension of the facts, as to the matter that Horace Gray and company and the Boston Iron company were not the same; the plaintiff acting under the belief that they were the same, and such belief being induced by the acts of the defendants or their legal agents.
    3. 4, 5. The court adopted the third, fourth, and fifth prayers, and so instructed the jury.
    
      6. The court adopted the sixth instruction prayed for, as applicable to the case therein stated and supposed, and instructed the jury, that, in such a case, the notice would have the effect stated; but the jury were further instructed, that such notice, though effectual in the case supposed, would not prevent the plaintiff from maintaining his action, if these notes were, in fact, the notes of the defendants under a name which they had adopted and sanctioned, or if the plaintiff had received them as such, being induced to believe them so by Horace Gray and company, and this belief was sanctioned by the defendants.
    7. The case was left to the jury, as to this point, upon the instructions heretofore stated as to the delivery. In the view of the presiding judge,, the use to be made of the coals, if the same were to be used by the Massachusetts Iron company, and the plaintiff knew it, was not material; and that it was sufficient if the coals were delivered at the place designated by the defendants’ agent, and accepted by him for the defendants; no suggestion being made of any collusion with third persons, or any fraudulent purpose on the part of the plaintiff to injure or defraud the defendants.
    8. The judge ruled that the general position taken in the last prayer, and the principle of law therein stated, were correct, but accompanied this ruling with the further instruction, that if Horace Gray and Horace Gray.and company were the general and only agents of the defendants, vested with full powers to act in their behalf, in all matters of purchase and sale and giving notes, and in the business of the defendants generally ; and the concerns of the defendants in the way of business were wholly transacted by such persons and no others, and such had been the case for a series of years, and this had been knowingly sanctioned and permitted by the defendants; then it would be competent for the jury to find, that the defendants had notice of these acts of using the signature “ Horace Gray and company,” for the “ Boston Iron company” as promisors of notes, and to infer that they had sanctioned them: But whether these acts were so frequent and of such a character, as to satisfy the jury that Horace Gray and company, as agents, did so conduct in relation to the business of the defendants, and in giving the signature “ Horace Gray and company,” as the same with that of the Boston Iron company, to the creditors of the latter, as to furnish reasonable grounds for the belief on the part of the plaintiff, that he was receiving the notes of the Boston Iron company, was wholly left to the jury, under the various instructions given in the case.
    The jury returned a verdict for the plaintiff, for the entire amount of his demand ; and the case was thereupon reserved for the opinion of the whole court, upon the questions of law that arose upon the trial. If the ruling of the presiding judge should be a sufficient ground for a new trial, the verdict is to be set aside and a new trial granted; otherwise judgment is to be rendered upon the verdict.
    The grounds taken by the counsel sufficiently appear in the report of the proceedings on the trial, and in the opinion of the court.
    
      B. R. Curtis, for the defendants,
    to the point that the plaintiff could not sue both for goods sold and on the notes, cited Story, Notes, §§ 106, 107; Holmes v. D’Camp, 1 Johns. 34; Burdick v. Green, 15 Johns. 247; Smith v. Rogers, 17 Johns. 340; Hughes v. Wheeler, 8 Cow. 77; that the question of the adoption and sanction by the corporation of the signature of then agents was a question of law, and that there was no evidence in this case sufficient in law to prove such adoption; Salem Bank v. Gloucester Bank, 17 Mass. 1, 28; Wyman v. Hallowell & Augusta Bank, 14 Mass. 58; Paige v. Stone, 10 Met. 160; Taber v. Cannon, 8 Met. 456; Shaw v. Woodcock, 7 B. & C. 73; Gilbert v. Woodbury, 9 Shep. 246; Pierce v. Whitney, 9 Shep. 113; Martin v. Great Falls Man. Co., 9 N. H. 51; Kingman v. Pearce, 17 Mass. 247; Mussey v. Beecher, 3 Cush. 511; and to the point that if the instructions were not sufficiently explicit, or if there was danger that the jury did not fully understand them, the court would set aside the verdict; Mill Dam Foumdery v. Hovey, 21 Pick. 417, 440, Odiorne v. Maxcy, 13 Mass. 178.
    
      C. G. Boring and F. B. Crowninshield, for the plaintiff.
   Shaw, C. J.

On the facts reported, the plaintiff insists in point of law: 1st, That the signature “ Horace Gray and company ” to the notes is the proper name and signature of the defendants, adopted by them to authenticate their own contracts and obligations, and that they are bound by it, as a written contract of their own, received by the plaintiff as such, in satisfaction and discharge of the defendants’ debt to him, for goods sold and delivered; or, 2d, That if the signature “ Horace Gray and company ” is not the proper signature of the defendants, adopted and sanctioned by them, so as to make the instruments in question their own promissory notes, the notes were received under a mutual mistake of facts or under a mistake of fact on the part of the plaintiff, occasioned by the acts and conduct of the defendants’ agents, in consequence of which the plaintiff' supposed that he had received the security of the defendants, in satisfaction of the debt due to him from them for goods sold and delivered, when in fact, he had not received such security; that, therefore, the notes were but primd facie evidence of payment ; and not having been paid or negotiated, but held by the plaintiff, and brought into court ready to be cancelled, if not available as the notes of the defendants, that therefore the simple contract debt, for goods sold and delivered, at an agreed price, was not paid, and that the plaintiff was entitled accordingly to recover as for goods sold and delivered.

To this claim on the part of the plaintiff, the defendants filed the general issue, with a specification of defence, requiring the plaintiff to prove every thing necessary to enable him to maintain his declaration, and setting up as a defence to all claims that might be so proved, payment, accord and satisfaction, and that credit was given by the plaintiff exclusively to the mercantile firm of Horace Gray and company. At the trial, a great amount of evidence was introduced by the parties, respectively, to maintain their several claims and grounds of defence.

The questions, now to be considered, relate to the instructions given by the judge before whom the case was tried, and to his refusal or modification of those which he was requested by the defendants to give, but which he declined giving in the terms or to the effect prayed for.

The presiding judge instructed the jury, that the case presented two general inquiries, namely : 1st, Whether there was an original indebtedness, on the part of the defendants, to the plaintiff, as alleged by him; and 2d, Whether such indebtedness, if it once existed, had been discharged to the extent of the notes declared on, which had been received by the plaintiff, with the signature of Horace Gray and company.

In regard to the first inquiry, whether the defendants became indebted to the plaintiff for the coals alleged to have been delivered under the contract, the case was submitted to the jury with instructions, which, we believe, were not excepted to by the defendants.

Upon the other point, the jury were instructed that the taking of a negotiable promissory note for a preexisting debt was primd facie a discharge of the original indebtedness ; that the burden of proof was on the plaintiff to show some sufficient and legal reason for taking the case out of the general rule that he must control the effect which the law otherwise gives to the acceptance of negotiable notes ; and that in the present case, as the notes purported to be the notes of third persons, the plaintiff had the further burden to show some sufficient reason, why the taking of them did not discharge all liability on the part of the defendants to the amount of such notes. The court are of opinion, that these directions were sufficiently favorable to the defendants, and had the verdict been the other way, the plaintiff would have had more cause to complain of them.

It is true, that it has long been held as the law of Massachusetts, that when the party bound to the payment of a simple contract debt gives his own promissory negotiable note for it, the law presumes such note to have been accepted in satisfaction and discharge of the preexisting debt, because the party receiving it relinquishes no security, but has the same responsibility for payment which he had before, with more direct and unequivocal evidence of the debt, and a more simple remedy for recovering it, and with power also by indorsement to transfer the whole interest in it to another. There seems therefore to be no motive for retaining and keeping alive the original debt.

But the presumption that a negotiable note is taken in satisfaction of a preexisting debt and not as collateral security, is a presumption of fact only, and may be rebutted and controlled by evidence that such was not the intention of the parties; so that when the promissory note given is not the obligation of all of the parties who are liable for the simple contract debt, and á fortiori when the note is that of a third person, and if held to be in satisfaction, would wholly discharge the liability of the party previously liable, the presumption, if it exist at all, is of much less weight; and it is a question of fact, on the evidence, whether the promissory note, given on the one hand and accepted on the other, was in satisfaction and discharge of the original debt. Thus, in the early case of Maneely v. M’Gee, 6 Mass. 143, where the promissory note of one, who acted as agent and manager for the others, was taken for a debt due from four, it was held, upon rather slight evidence, that it was not intended, and therefore would not operate, as payment. So in the case of French v. Price, 24 Pick. 13, it was decided, that where several persons were liable for goods purchased by an agent, and the vendors knowing that others were liable, but without insisting on such liability, took the note of the agents alone, this was presumptive evidence of payment. But, said the court, it is competent for the plaintiff to rebut this presumption ; and they add, if there was any deception or fraud in the giving of the notes, or if they were accepted under an ignorance of the facts, or a misapprehension of the rights of the parties, the vendors ought not to be bound by the acceptance, but may repudiate the notes and rely upon the original contract of sale. The principle rests on the ground, that if the vendors know that others are liable, whether they know who those others are or not, they voluntarily waive their responsibility by taking the notes of a part only of those who are liable. So where goods are purchased for a company, and a note given therefor by one professing to act as agent of the company, and supposed to be duly authorized to give the note of the company, when it appeared that the agent was not duly authorized, and the note was unavailing as the note of the company, although the holder might have treated it as the personal note of the agent, yet it was held, that the holder was not bound to do so, but might treat the note as void, and recover against the company on the original contract for goods sold. Emerson v. Providence Hat Manufacturing Company, 12 Mass. 237. And a receipt of payment given on the bill for goods sold, a receipt being by law explainable by evidence aliunde, does not bar the vendor from recovering for goods sold, where the acceptance of the note is not intended to enure by way of payment and satisfaction. Vancleef v. Therasson, 3 Pick. 12. So, if goods are sold to be paid for by a note made by one person and indorsed by another, and a note of a corresponding description is offered and received, and the goods are thereupon delivered, and it appears afterwards that the indorsement is a forgery, such delivery of the note is no payment, and an action will lie for the goods. Ellis v. Wild, 6 Mass. 321.

With this view of the law as to the presumption of fact, arising from the acceptance of a negotiable promissory note for a preexisting debt, whether it is the note of the same parties originally liable, or of some of the same parties, or the note, genuine or otherwise, of a third person, we repeat the opinion, that we think the general ruling under which the evidence went to the jury was correct, and was sufficiently favorable for the defendants. Under this ruling, as it appears by the report, the plaintiff took the burden of proof, and attempted to show that the notes were in fact the notes of the defendants, and that they had adopted as their mode of signature to contracts of this nature the form here used; and, secondly, that the plaintiff, having a legal demand against the defendants for goods sold, received the notes in question under a misapprehension, in fact, in respect to the identity of the concern designated by the signature of Horace Gray and company, with that designated as the Boston Iron company, and acted under-that belief; and that such belief was caused by the acts of the defendants and their agents, to whom was intrusted the superintendence and control of all their purchases and payments, and their business generally.

We are then brought to the consideration of the defendants’ prayers for specific instructions, and the action of the judge upon them.

The first was, that the plaintiff, having counted upon these notes, and now seeking to recover on them, cannot at the same time aver that he has so surrendered the notes, that they do not amount to payment. The judge declined, but instructed the jury, that the plaintiff' was not precluded from now surrendering these notes, and recovering on the other counts, if he was not entitled to recover on the notes; if, in other respects, he was entitled to recover on the other counts for the goods sold. We do not perceive why a person may not declare on the original cause of action for goods sold, and also on a note given for the same cause, which the holder believes that the maker intends to resist, as void, for any cause ; they are two modes of claiming one and the same demand, to meet the evidence in the case. E he recovers on one of them he will not on the other. In New York, where a note is not primd facie payment, but may be, if so agreed, the cancelling of the note before bringing the action is not necessary to a recovery of the original debt; the rule is, that on the trial the court will not suffer the plaintiff to recover on the original consideration, unless he can prove that the note given for it is lost, or can then produce it to be cancelled; but it is no objection to such a recovery that the note has been indorsed to another, if it has been retransferred to the payee, and he has it at the trial ready to be cancelled, if he recover on the original consideration. This is obviously required to secure the defendant from being twice charged. Burdick v. Green, 15 Johns. 247; Hughes v. Wheeler, 8 Cow. 77.

But the defendants, as we understand the argument, insist that these two claims are not only inconsistent with each other, but are repugnant to each other, so that the assertion of one is a denial of the other; and thus, if the plaintiff claims for the goods sold, the claim assumes that the notes given for them are not the notes of the defendants ; but they are the notes of some party, and if not the notes of the defendants, they are the notes of Horace Gray and company; and the plaintiff, after recovering of the defendants for the goods, may recover of Horace Gray and company on the notes, who would have no defence against them. But we think this argument is not well founded. It may be true, that if the plaintiff, in the first instance, had chosen to treat the notes as the notes of Horace Gray and company, the latter might have been barred by the doctrine of estoppel, from denying that they were bound by the notes; but the holder having elected to treat them as the notes of the defendants, made by the instrumentality of Horace Gray and company, and having declared on them as such, and more especially having obtained judgment on them, or on the consideration for which they were given, the plaintiff would be estopped from proceeding against Horace Gray and company; and by a well-known technical rule, there would be estoppel against estoppel, which would let in the truth, or in other words, the plaintiff would be precluded by his own acts from making any such claim. Besides, looking at the subject in a more direct and practical view, if the plaintiff in this suit recovers on the notes, they will be merged in the judgment and effete ; if he recovers on the count for goods sold, the notes will be cancelled, and impounded here, and can never be used against Horace Gray and company. Precisely the same course was adopted in the case of Emerson v. Providence Hat Manufacturing Company. There, no doubt, the plaintiff might in the first instance have proceeded against Roberts, the agent, but having elected to proceed against the company, it was not suggested that he could afterwards proceed against the agent.

The second prayer for instructions was : That the defendants’ corporate name not appearing on the notes, and the notes on their face not disclosing any agency, Horace Gray and company, and not the corporation, were bound by these notes. This instruction was given, as the defendants insist, with such qualifications and restrictions, as take away the whole legal effect and operation of it. This is true, and it leads to the other principal question in the present case. It is undoubtedly true, that the notes were not signed in the defendants’ regular corporate name, by which they were incorporated ; that the notes on the face of them did not disclose any agency ; and that they were signed by Horace Gray and company, who had a separate firm and house of trade of that name. If it were an absolute and unqualified rule of law, that upon these facts Horace Gray and company and not the corporation were bound, and the judge was bound so to instruct, of course that would put an end to the question, whether these notes could be the notes of the defendants. The court did give the instructions prayed for, but with this qualification, that the ruling was not to be understood as preventing the plaintiff from maintaining his action, if the jury were satisfied: 1st, That these notes were in fact the notes of the Boston Iron company executed under a name adopted and sanctioned by them as indicative of their contracts ; or 2d, That the plaintiff received these notes upon a legal demand against the defendants, under a misapprehension of the facts, as to the matter that Horace Gray and company and the Boston Iron company were not the same ; the plaintiff acting under the belief that they were, and such belief being induced by the acts of the defendants or their legal agents.

The effect of the instruction thus given, we think, was, that the facts mentioned in the prayer for instructions, to wit, the corporate name not appearing on the notes, and the notes not disclosing any agency, but signed Horace Gray and company, constituted prima facie evidence, that those were the notes of Horace Gray and company and not of the Boston Iron company ; and standing alone would warrant and require the direction, that Horace Gray and company and not the Boston Iron company were bound by them; but that this evidence might be rebutted, and controlled by proof aliunde that they were in fact the notes of the Boston Iron company, because executed under a name adopted and sanctioned by them as indicative of their contracts, and it may be added, given in satisfaction of their debt.

The court are of opinion that this direction was correct. If by any possible proof, the presumption, arising from the face of the note, from the form of the execution, from the corporate name of the company not being used, and the use of the name of a mercantile firm, could be rebutted, then the evidence was primd facie, and not conclusive. It seems to be now well settled, in this commonwealth, since the great multiplication of corporations, extending to almost all the concerns of business, that trading corporations, whose dealings embrace all transactions from the largest to the minutest, and affect almost every individual in the community, are affected like private persons with obligations arising from implications of law, and from equitable duties which imply obligations; with constructive notice, implied assent, tacit acquiescence, ratifications from acts and from silence, and from their acting upon contracts made by those professing to be their agents; and, generally, by those legal and equitable considerations, which affect the rights of natural persons. We are not dealing here with the weight, force or effect of the evidence, but only whether any evidence aliunde, could control the presumption arising from the notes; and we think there was evidence competent to go to the jury, from which they might infer that the defendants had so adopted a name, other than their corporate name, for the special purpose of giving notes, as to be bound by it when used by a general agent, in liquidation of then own debts.

This results from a series of decisions both in England and in this country, but particularly in America, quite too numerous to be reviewed here. I will allude to a few. In the supreme court of the United States, in the case of Bank of Columbia v. Patterson, 7 Cranch, 299, it was held, that a corporation might be bound both by express and implied provisions, and that by acting on the contracts made by their agents, they adopted and ratified them. In the case of United States Bank v. Dandridge, 12 Wheat. 64, the subject was considered at great length, and it was held that a corporation is bound by the same presumptions which would affect a natural person ; that the authority of agents may be proved from their acts, and that corporations may be affected by paroi proof and presumptions of fact, in the same manner as natural persons. The case is an instructive one, and though the chief justice dissented, it has generally been acquiesced in as sound law. In Massachusetts, in the case of Canal Bridge v. Gordon, 1 Pick 297, it was held that a corporation could be bound without vote or deed by implication from corporate acts. This proceeded on the broad ground, that corporations can be bound by implication as well as individuals. In Minot v. Curtis, 7 Mass. 441, 444, the court say: We know not why corporations may not be known by several names, as well as individuals.” As that case arose on pleading, the court further say, that if this point had been open to the jury as á question of fact, the defendants would have been bound to prove the identity of the parish thus acting under different names. This, of course, could be done by any proof tending to establish such identity. The case of Medway Cotton Man. Co. v. Adams, 10 Mass. 360, is in point with the present, except that there the corporation was plaintiff, whereas here it is defendant. The averment was, that the defendants, by their promissory note, &c., promised the said Medway Cotton Manufacturing company by the name of Richardson, Metcalf and company. That came before the court on demurrer, and the declaration was held good. The opinion of the court was given by Sewall, J., who states the principle on which it was founded. He says, it was a question of identity, which was sufficiently there stated by way of averment, to be good on demurrer, but had it been traversed or tried, would, as he states, depend on an inquiry of facts, which might or might not be proved, and might be provable by evidence extraneous to the note. The same point was subsequently decided in the case of Commercial Bank v. French, 21 Pick. 486.

Without going more at large into authorities that a corporation may have several names, I will cite the third edition of Angell and Ames on Corp. 206, (4th ed. § 234,) which lays down the rule, that the misnomer of a corporation in a grant, obligation, or other written contract, does not prevent a recovery thereon by or against the corporation in its true name, provided its identity with that intended by the parties to the instrument is averred in pleading, and apparent in proof; and the authors cite many cases in support of the rule thus stated. The court are therefore satisfied, that it was competent for the plaintiff, if he could, to show by evidence, that the notes were in fact the notes of the defendants, given in a name adopted by them to authenticate their contracts; and therefore that the modification prescribed to the rule asked for by the defendants, and given, was correct, and adapted to the case then in proof. In this connection, several authorities were cited to the point, that when a creditor, knowing that one acts as agent for a principal in making purchases, takes the note of the agent, without that of the principal, he waives the reponsibility of the principal, and gives credit to the agent. This principle, though to be taken with some qualifications, is no doubt correct, but not applicable to the present case.

The ground of the plaintiff is, not after taking the note of the agent to resort back to the principal, but to show that the note taken was in fact and in legal effect the note of the defendants. It was urged, in this connection, that the court should have given an opinion on the questions of law stated in this prayer for instructions, and upon the facts there stated; but as we understand it, these facts were only a part of the evidence; there was much other evidence which was competent, such as the fact, that the company had no meetings except a formal annual meeting; that there was no vote appointing Horace Gray and company agents, or appointing any agent, or prescribing the powers of agents; that a large amount of business was done by and in the name of the Boston Iron company, in the way of purchases, sales, and other dealings, which was done wholly by Horace Gray and company ; that these were open and notorious, from which constructive notice to the company might be presumed ; from all which a jury might infer the authority which is the subject of inquiry. If so, the judge-could not be called upon to express an opinion on a question of law, arising from a part of the evidence ; the only question is, whether the judge was correct in submitting the evidence to the jury ; and he was so, if there was competent evidence proper for their consideration, and from which they might infer the fact sought to be proved. Shaw v. Woodcock, 7 B. & C. 73.

Under this same objection, also, the question was discussed, whether a corporation can adopt the name of a mercantile firm, and bind themselves by notes given in its name. It may not be a wise arrangement, but we are not prepared to say they cannot do it. Suppose the case, which actually occurred, as appears in the case of Goddard v. Pratt, 16 Pick. 412, that a manufacturing corporation pass a vote or by-law, providing that all their mercantile business shall be done and contracts made in the name of a partnership, whose stock they have taken, and to whose business they have succeeded. This may be wise in such a case, in order to keep up an established, extensive, and valuable correspondence, and retain the run of custom and good-will of an old established firm. That case was the reverse of the present, and the struggle there was to charge the firm, who defended on the ground, that their firm name designated the obligations of the company, and not their own; and the case turned on the question, whether the plaintiff, when he dealt with them, knew of the dissolution of the old firm; if he did not, then by a well-known rule of the law of partnership, the firm was bound to him, not having given notice of their dissolution. Had the point in that case been whether the corporation were bound, we can have no doubt that they would have been held bound by their vote for notes made in the name designated.

It was further relied on by the defendants; that it was not the intention of Horace Gray and company to give the note of the Boston Iron company, even if they had authority so to do; but further, that there was no evidence that they had such authority. In regard to the first, it depended wholly upon the weight or sufficiency of the evidence, which, for reasons already given, we do not go into. As to the authority, it requires some further consideration. Undoubtedly, to charge a party by the act of an agent, and corporations can be charged in no other way, it is incumbent on the plaintiff to prove the authority of the agent. But how is such authority to be proved ? No doubt, the vote of the corporation entered on their records or minutes is the regular and proper evidence ; but suppose they pass no votes, or keep no records, or refuse to produce them, and yet de facto transact a large amount of business. If the authority of agents could be proved in no other way than by the production of such a vote, those who deal with them would have but a precarious security for their rights. But we think that it is established by the cases cited, and by many others which could be produced, that having proved the constitution .of a corporation by the act of incorporation, and the acting under it by the persons incorporated and their associates, the powers of agents as well as any other fact necessary to charge them may be proved by corporate acts, and by the acts of persons professing to be their agents and servants, and the tacit acquiescence of the corporation. This was decided in the cases of Narragansett Bank v. Atlantic Silk Company, and Westcott v. Same, 3 Met. 282. In these cases, the defendants had refused, on notice, to produce their records. But so far as third persons are concerned, the production of books, which contain no entry on the subject, is the same as if they had refused on notice to produce their books. Corporations, like natural persons, may be bound by such acts, as proving either a previous authority or a subsequent ratification. When a corporation consists of a small number of persons, like a partnership, they may transact all their business by conversation, without formal votes ; and it would be a violation of the plainest principles of justice, to hold those who deal with them to prove all their acts by written votes, which they do not keep or do not produce. And inasmuch as the powers of agents may be proved by extraneous evidence, the extent and limitation of their powers may be proved in the same manner. And when general and very large powers are exercised by an agent or firm apparently intrusted with the entire business of the corporation, and no vote appears on the production of their records, prescribing or limiting their powers, the corporation are as well bound by the declarations and statements of such agents, upon the subject of the dealings of the corporation, and whilst acting therein, as by their acts and contracts. Such declarations and statements of agents, made in connection with their dealings, are res gestee

The next objection is to the qualification annexed by the judge to the sixth instruction prayed for and given. The objection is that it assumed a hypothetical case, of which there was no evidence. Whether there was any evidence we cannot judge; but if there was, none, it was a mere illustration and explanation of a rule of law, which could not mislead the jury. Dole v. Thurlow, 12 Met. 157.

The next question turns upon the eighth request for instructions. The prayer is as follows: The judge is requested to instruct the jury, “ that the acts of Horace Gray and company, and the knowledge of Horace Gray and company, are not the acts and knowledge of the defendants, except in those matters which were within the scope of their authority as agents; and that if they, without authority from the defendants, held out to the public that the names of Horace Gray and company would bind the defendants, the defendants were not bound by the knowledge of Horace Gray and company that they had so held themselves out; and it was necessary to bring home knowledge to the defendants in some other way than by showing knowledge by Horace Gray and company.” This instruction was given, and the position there taken, and the principles of law therein stated declared to be correct, but accompanied with the further instruction, that if Horace Gray and Horace Gray and company were the general and only agents of the defendants, vested with full powers to act in their behalf in all matters of purchase and sale, and in giving notes, and in all tfie business of the defendants; and the concerns of the Boston Iron company, in the way of business, were wholly transacted by them, and no others, and that such had been the case for a series of years, and this had knowingly been permitted by the defendants; then it was competent for the jury to find, that the defendants had notice of these acts of using the signature of Horace Gray and company for the Boston Iron company, as promisors of notes, and to infer that they had sanctioned them. Whether these acts were so frequent, and of such a character, as to satisfy the jury that Horace Gray and company did so conduct, &e., was wholly left to the jury, under the various instructions given in the case.

The court are of opinion, that this instruction, as given to the jury by the presiding judge, with this qualification and commentary on the evidence, was correct.

The request for instructions assumed a state of facts, which did not constitute the whole case. If the request was founded on the ground, that the agents had no authority to use any other name than the corporate name of the defendants, in giving notes; and that it could not be within the scope of their authority to do so, without express authority or without a vote, or the production of written authority; then, for reasons already given, we think it was not correct in point of law, and ought not to have been given. But if such authority, like all other authority, could be proved by evidence aliunde, then the only question was, what was their authority, what were its extent and limits, and whether the acts and declarations in question were within its scope ; and then it seems to us, that it was proper, and that the judge was bound, to add the qualifications stated, and to submit the question to the jury.

Some objection was made that the judge declined to give the seventh instruction requested, that if the plaintiff, at the time of the delivery of the last two cargoes of coals to the Massachusetts Iron company, knew that they were to be used by them, and in point of fact Horace Gray and company, as agents of the Boston Iron company, had no authority to deliver coals of the Boston Iron company to the Massachusetts Iron company, the plaintiff could not charge the defendants for those deliveries. This assumes the whole question in controversy, that these agents had no authority to sell. But it does not turn upon that; the effect of the instruction was, that if the goods were delivered at places designated by the defendants’ agents, being the same agents by whom they were purchased, this was a good performance of the contract, without regard to the question whether they were to be used by the defendants or not. This, we think, was correct.

Judgment must therefore be entered on the verdict lor the plaintiff. 
      
      
        Thomson v. Davenport, 9 B. & C. 78. In this case Littledale, J., says, “ The general principle of law is, that the seller shall have his remedy against the princinal rather than against any other person.”
     