
    The Dunbar Box and Lumber Company, Respondent, v. Julia D. Martin, as Executrix of the Last Will and Testament of John L. Martin, Deceased, Appellant.
    (Supreme Court, Appellate Term,
    March, 1907.)
    Negotiable instruments — Actions — Evidence — Admissibility — Ambiguity and extrinsic evidence.
    In an action, brought by the payee, upon a promissory note signed with the name of a corporation followed by the signature of its president, where the note contains the words “ we promise to pay ” and the president’s signature is written in the space contained in a rubber stamp bearing the corporate name which was designed for the signature of the officer subscribing the name of the corporation, the note is ambiguous; and it is error to exclude evidence tending to show that the note was a corporate note, and not the joint noto of the corporation and its president, nor the individual note of the president; and a judgment in such case founded upon a verdict directed against the executrix of the president, in an action brought against her upon the note, will be reversed and a new trial granted.
    Appeal from a judgment and order of the City' Court of the city of New York, entered upon a verdict -directed by the court, in favor of the plaintiff.
    A. Leo Everett, for, appellant.
    Henry Hogeboom, for respondent.
   Davis, J.

This is an appeal from a judgment of the City Court entered upon a verdict directed by the court and from an order denying defendant’s motion to set the verdict aside and for a new trial. The action was brought by plaintiff as payee of a promissory note. The note reads as follows:

‘‘ $1,750. New York, April 27, 1906.

“ On July 2nd after date we promise to pay to the order of Dunbar Box & Lumber Company seventeen hundred and fifty 00/100 Dollars at Phenix National Bank, 49 Wall Street. Value Received.

“ Varick Contracting Company.

“ No. Due July 2, 1906. John L. Martin.”

The defendant is sued as executrix- of John L. Martin. Verdict was directed for the plaintiff, on the theory that the note was unambiguous and, on its face, the individual note of John L. Martin. The defendant claimed that the note was either the note of the Varick Contracting Company, alone, or, if not that, the joint (but not joint and several) obligation of John L. Martin and the Varick Contracting Company, and that, in either case, the court erred in directing a verdict for the plaintiff. The defendant further claims (hat the note is ambiguous on its face; that, although Martin’s name is signed to the note, the stamp of the Varick Contracting Company is also there and Martin’s name is inserted in the space evidently intended to hold an officer’s signature. The note also reads: “ We promise to pay ” etc., and this would indicate that it was not the promise of a single individual. Moreover, it appears from the testimony of Mr. Reid, the president of the plaintiff, that he received the note from Martin and saw him sign it and that his company bad no account with Martin personally but only with the Varick Contracting Company of which Martin was president. Under these conditions we think the note was ambiguous, and that it does not appear absolutely to be the personal note of defendant’s testator. It follows, therefore, (hat evidence showing that the note was the company’s note and accepted as such by the plaintiff would be proper. Such evidence was offered by the defendant and excluded Under objection. For instance, after proving the signature of Mr. Reid, who was president of the plaintiff at the time, defendant offered in evidence the following memorandum signed by Mr. Reid:

“June 29. Mr. Reid wants check for $750 — x int. of which R. will notify us — and note for 1,000.00 at 3 mos. of V. O. C. to John L. Martin and endorsed by him to Dunbar Box & Lumber Co. Date note June 29—■ Mr. R. promises to retire and return V. C. “ June 4. /06. Co. 1ST ote for 1750 — of July 2.”

u Thos. T. Reed.”

This paper was excluded as tending to change the meaning of the note sued upon. As stated above, the note in suit is ambiguous. It was, therefore, error to exclude this memorandum. It shows quite clearly that the president of the plaintiff- regarded the note as that of the Varick Contracting-Company, alone, and that he was looking forward to retiring the note on June 29, 1906, upon a payment of $750 on account and taking a new note of the company upon which Martin would be personally liable as endorser. The giving of the new note on June twenty-ninth was prevented by Martin’s death on June 13, 1906. It may be suggested that Reid had no power, to bind the plaintiff by the declarations and admissions in this memorandum. A sufficient answer to that objection is that he was its president and, presumably, in charge of these very matters for his company.

Under these circumstances, we think the judgment and order appealed from should be reversed and a new trial granted, with costs to appellant to abide the event.

Gildersleeve and Hendricii, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  