
    Edward K. Collins v. The Buckeye State Insurance Company.
    1. Where an agent, acting within the scope of his employment, executes to a person having knowledge of such agency and employment, a note in the form “ I promise to pay,” etc., signing his own name thereto, with the word “ agent” added, but without in any way designating or naming his principal, the agent is individually liable as the maker of the note, at the suit of-the payee.
    2. Parol evidence is inadmissible, in such a case, to show that it was not the in tention of the agent to make himself so liable.
    Error to the common pleas of Butler county. Reserved in the district court.
    The original action was brought by the defendant in error against the plaintiff in error, upon four several promissory notes, of one of which the following is a copy:
    “$526.25. ' . New York, October 15, 1857.
    “Twelve months after date I promise to pay to the order of the Buckeye State Insurance Company of Cincinnati, five hundred and twenty-six 25-100 dollars, at the Bank of the State of Hew York, value received.
    “Edw’d K. Collins, Agent."
    
    
      The other three notes, except as to dates and amounts, are cf the same tenor.
    These notes were given for premiums on policies of insurance, procured by Collins from defendant in error, upon certain vessels of the New York and Liverpool Mail Steamship Company. The policies were taken in the name of ^Collins, and, although in fact he acted in the matter as agent for the ship company, neither his agency nor the name of his principal appears in the policies.
    The defense set up by Collins was, that defendant in error, at the time of executing the notes, had notice of his agency, and of the true ownership of the vessels, and that therefore the notes are in law the notes of the ship company, and he is not individually liable thereon to the payee.
    The defendant in error denied notice of the agency and ownership, and also insisted that Collins was liable, irrespective of the •question of notice.
    The cause was tried by the court, a jury being waived, and a bill of exceptions taken, embodying all the evidence. That evidence consists of the notes themselves, and of testimony on both .sides as to whether defendant in error had notice of Collins’ agency, and of the ownership of the vessels.
    The court found for defendant in error, and, after refusing a motion for a new trial, predicated upon the alleged ground that the finding was contrary to law and evidence, rendered judgment for the amount of the notes. To all which plaintiff in error excepted.
    The errors assigned are, that the court found for defendant in •error, and overruled the motion for a new trial.
    
      C. D. Coffin, for plaintiff in error:
    The facts are, substantially, that Collins insured for the steamship company; that .he gave the notes as agent, intending thereby to contract for and on behalf of the steamship company, and not for himself, and that the agents in New York issued or delivered the policies to Mm, as such agent, received the notes with the understanding, at the time, that he contracted as agent for and on behalf of the steamship company, and not for himself; and the authority of Collins so to act, etc., are all facts most clearly established by the testimony.
    2. As to the law of the case: Is Collins personally liable?
    
      I submit, as a clear legal proposition, “that, where the agent, ^acting within the limits of his authority, makes his principal known, or where the circumstances show that it was *under.stood-, at the time, that the person contracted as agent, and intended to make the contract on behalf of his principal, the' contract is entirely the principal’s, and the agent incurs no liability.” Note to 2 Kent, 898 (10 ed.), and authorities there cited.
    There are numerous cases, drawing fine distinctions as to the effect of the execution of simple contracts, where the makers have .either added to their signatures, or embodied in the writing words which, in some cases, are held to be merely descriptive of the makers, and in others, showing that they acted in a representative character, but all the cases may be answered by the same inquiry: “ To whom is the credit knowingly given, according to the understanding of both parties? ” Story on Agency, see. 288, and notes; Brown v. Rundlet, 15 N. H. 360.
    It is not necessary that the name of the principal should be signed by the agent, to bind the principal and relieve the agent, .although there are authorities sustaining such a proposition; that rule only applies to instruments under seal. N. E. M. Ins. Co. v. DeWolf, 8 Pick. 61; Andrews v. Estes, 11 Maine, 267; Stanton v. Camp, 4 Barbour, 274; Pinckney v. Hagadore, 1 Duer, 89, 96. See 12 N. H. 205; 14 Vt. 195, 202.
    Nor is it necessary that the name of the principal should appear .anywhere upon the paper. I know there are cases in which learned judges have expressed the opinion that, in bills of exchange and promissory notes, the principal should be disclosed upon the paper; but I think the rule is now well established that, as between the original contracting parties, if it can be collected from the transaction that the true object and intent of the parties was to bind .the principal, and not to bind the agent, courts will adopt the construction, and enforce the contract according to that object and intent. Com. Bank v. French, 21 Pick. 486.
    The confusion in the cases has arisen from not always distinguishing between the execution of sealed instruments by agents, and simple and mercantile contracts; and by confounding cases where the party had, and where he had not, a principal to represent.
    In the execution of a plain mercantile instrument, by the addition *of the word agent, there can be no good sensible reason ■assigned for the use of the word but to express distinctly that the party did not contract individually; that he was acting for another-That is the plain language of the contract, its obvious meaning. And where, at the time, the principal was disclosed and understood by both parties, to say that it was a transaction on the agent’s own account, and not as agent, and that he appended that word merely as descriptive of himself, is really to pervert the true and legitimate use and meaning of the word “ agent ” in the connection in which it is used, and make sensible men doubt whether law and common sense are ever identical. 3 Am. Jurist, 78, 79.
    It may be urged, in reply to this, “Very true, the principal is bound; so also is the agent.”
    Again, you can not introduce parol evidence to vary the terms of a written contract.
    I reply that, in the case at bar, the steamship company (the corporation) is bound, and Gollins, the agent, is not, and this is clear upon principle and authority, as will appear by the cases cited.
    Again, I admit that where the parties have embodied their contract in written terms, in the absence of fraud or mistake, you can not vary those terms by parol evidence of what occurred at and before the making of the contract; but this rule has no application to the case under consideration.
    See cases already cited; also 1 Greenl., sec. 282; Wilson v. Hart, 7 Taunt. 304; Baldwin v. Bank of Newbury, 1 Wallace, 234; Commercial Bank v. French, 21 Pick. 486; Hovey v. McGill, 2 Conn. 680; Shelton v. Darling, 2 Conn. 435 ; Johnson v. Smith, 21 Conn. 627 ; Mott v. Hicks; 1 Cowen, 518, 523, 534; Brockway v. Allen et al., 17 Wend. 40; Hicks v. Hinde, 9 Barb. 528; S. C., 6 How. Pr. 1, and cases reviewed; Babcock v. Beeman, 1 E. D. Smith, 593; S. C., 1 Kernan, 200, and cases reviewed; Conro v. Port Henry Iron Co., 12 Barb. 27, 54; Bank of Genesee v. Patchin Bank, 3 Kernan, 318; S. C., 19 N. Y. 312, 315, 319, and cases examined; 3 Mason, 505; Bank of State of N. Y. v. Musk’g B. State Bank of Ohio, 29 N. Y. 619 ; Wolfe v. Jewet, 10 La. 383; 3 Martin, 640.
    *The court will get at the real nature of the transaction. Andrew v. Blackley, 11 Ohio St. 89.
    I submit with entire confidence, that the law is well settled that, in a paper writing of this kind, as between the original contracting parties, it is not necessary that the name of the principal should appear upon it. How the paper should have been executed so as to bind the principal and not the agent, and the name of the principal not upon it, I confess I can not see, unless the one adopted, or one substantially like it, effects that object.
    If, contrary to my belief and expectations, the court should be of opinion that, to relieve Collins from personal responsibility, he should have prefixed to his signature the words, “Eor the New York and Liverpool United States Mail Steamship Company,” or something substantially like it, so as the more distinctly to have impressed upon the paper that he signed as agent for that company, and did not intend to bind himself, then I submit, that the court below erred in not reforming the language of the contract, so as'to express that idea,- and afterward giving judgment for Collins, and for that reason the judgment should be reversed.
    The code authorizes the defendant to make an equitable defense to a legal action. The answer sets forth the facts; the proofs sustain the answer.
    
      Flamen Ball, also for plaintiff in error:
    Where an agent, acting within the scope of his agency, makes a parol contract on behalf of his principal, with another party having knowledge of the interest of the principal in the transaction, such a contract, however informally it may be expressed, is, in law, as between the original parties and all subsequent parties charged with notice, the contract of the principal and not the contract of the agent.
    Hence it follows as a corollary, that the promissory notes signed by “ Edward R. Collins, agent,” and sued on in this case, are the evidences of contracts of his principal, “ The New York and Liverpool United States Mail Steamship Company,” with the insurance companies, and are not the individual contracts of Edward R. Collins.
    *1 refer the court to some of the leading authorities on the law of the case: Babcock v. Beman, 1 Kernan, 200; Seaber v. Hawkes, 5 Moore & Payne, 549; Brockway v. Allen, 17 Wend. 40; Evans v. Wells & Spinning, 22 Wend. 335 ; Townsend v. Corning, 23 Wend. 436; Conro v. Port Henry Iron Co., 12 Barb. 27, 54; Many v. The Beekman Iron Co., 9 Paige Ch. 188; Sharpe v. Emmet, 5 Wheat. 288; Roberts v. Austin, 5 Wheat. 313; Bank of Genesee v. Patchin Bank, 3 Kernan, 309; Story on Agency, sec. 154; Story on Prom. Notes, secs. 69, 70; Bradlee et al. v. Boston Glass Manufactory, 16 Pick. 347; Rice v. Gove, 22 Pick. 158; Comm’rs of the Canal Fund v. Perry, 5 Ohio, 56; Titus v. Kyle et al., 10 Ohio St. 444; Baldwin v. Bank of Newbury, 1 Wallace, 234.
    
      Thos. G. Mitchell, also for plaintiff in error.
    JY. Meadington, for defendant in error :
    1. An agent who is known to be such, and who acts within the scope of his authority, will, nevertheless, be personallyresponsible (1) when he enters into an oral contract without disclosing the name of his principal, or (2) when he enters into a written contract upon which the name of his principal does not appear. Story on Agency, secs. 147, 155; 1 Amer. Lead. Cases, 635; Waring v Mason, 18 Wend. 425; Pentz v. Stanton, 10 Ib. 277; Mills v. Hunt, 20 Ib. 431, 434; Arnold v. Sprague, 34 Vt. 402; Magee v. Atkinson, 2 Mees. & Wels. 440; Jones v. Littledale, 6 Adol. & Ellis, 486.
    2. And even when the name of the principal appears in the instrument, the agent may bind himself by using words which import a personal engagement — the question being, whether, taking the whole instrument together, he intended to contract solely on behalf of his principal, or to pledge his personal credit. If he fails to give a right of action on the contract, against his principal, his own name appearing, he will be liable on it. Slawson v. Loring, 5 Allen, 340; Haverhill Mut. Fire Ins. Co. v. Newhall, 1 Ib. 130; Fisk v. Eldridge, 12 Gray. 474; Moss v. Livingston, 4 Comst. 208; De Witt v. Walton, 5 Selden, 571; Savage v. Rix, 9 N. H. 263; Stackpole v. Arnold, 11 Mass. 27 ; Mayhew v. Prince, Ib. 54; Bedford Com’l Ins. *Co. v. Covell, 8 Met. 442; Taber v. Cannon, Ib. 456, 460; Alfridson v. Ladd, 12 Mass. 173; Simonds v. Heard, 23 Pick. 120 ; Leadbitter v. Farrow, 5 Maule & Selwyn, 345; Higgins v. Senior, 8 Mees. & Wels. 834; Nicholls v. Diamond, 9 Exch. 158.
    3. In the present case, Collins not only failed to disclose the name of his principal in the notes sued on, but he used words which import a personal engagement — namely, “ I promise to pay ” — and signed them with his own signature only. Fisk v. Eldridge, 12 Gray, 474; Haverhill Mutual Fire Ins. Co. v. Newhall, 1 Allen, 130; De Witt v. Walton, 5 Selden, 571; Barker v. Mechanics’ Ins. Co., 3 Wend. 94.
    4. The addition of the word “agent” to his signature did not vary the effect of the instrument — it being merely a descriptio persones, or a memorandum indicating on whose account the notes were given. Slawson v. Loring, 5 Allen, 340; Arnold v. Sprague, 34 Vt. 402, 409; Fisk v. Eldridge, 12 Gray, 474; Savage v. Rix, 9 N. H. 263; Packard v. Nye, 2 Met. 47 ; Hills v. Bannister, 8 Cow. 31; Moss v. Livingston, 4 Comst. 208; De Witt v. Walton, 5 Selden 571; Pentz v. Stanton, 10 Wend. 277; Mare v. Charles, 5 Ellis & Bl. (85 E. C. L.) 978.
    5. The decisions which hold that the word “ agent,” appended to the signature of an indorser, renders the indorsement restrictive, proceed on a different ground, and have no application in the-present case. 1 Parsons on Notes and Bills, 96.
    6. And it was not competent for Collins to introduce parol evidence to prove that the notes were not intended to bind himself, but the New York and Liverpool United States Mail Steamship Company, for which he claims to have acted as agent, and thereby relieve himself from liability. Titus v. Kyle, 10 Ohio St. 444; Higgins v. Senior, 8 Mees. & Wels. 834; Stackpole v. Arnold, 11 Mass. 27; Arnold v. Sprague, 34 Vt. 402; Pentz v. Stanton, 10 Wend. 277; Harkins v. Edwards, 1 Clark (Iowa), 426; 1 Amer. Lead. Cas. 628.
    7. The rule excluding parol evidence would not have been contravened by proof of the circumstances surrounding the parties at the time of making the contract, if known to both *of them. 1 Greenl. Ev., sec. 277. But such evidence would have been of no avail in the present case; for, an agent authorized to bind his principal, and acting within the scope of his employment, may nevertheless, by contracting in his own name, render himself personally responsible.
    8. Neither would the rule have been contravened, if, in a suit by or against the principal, parol evidence had been received to show that, although the agent contracted in his own name, the contract was really that of his principal, because made under his authority. Such proof is competent in relation to simple contracts in general. But whether it is as to negotiable instruments does not seem to be fully settled. That a person, not named in such a paper, may, in this manner, be shown to be a party thereto, has been held in Eastern Railroad Company v. Benedict, 5 Gray, 561; Rutland v Burlington R. R. Co., 24 Vt. 33; Mechanics’ Bank of Alexandria v Bank of Columbia, 5 Wheat. 326; Baldwin v. Bank of Newbury, 1 Wal. 234. But the contrary has been decided in Thomas v. Bishop 2 Strange, 955; Leadbitter v. Farrow, 5 Maule & Selw. 345; Mare Charles, 3 Ellis & Bl. (85 E. C. L.) 978; Van Ness v. Forrest, 8 Cranch, 30; Bank of British North America v. Hooper, 5 Gray, 567; Bank of United States v. Lyman, 20 Vt. 666, 676; Arnold v. Sprague, 34 Ib. 402; Bedford Com’l Ins. Co. v. Covell, 8 Met. 442; Tabor v. Cannon, Ib. 459; Bass v. O’Brien, 12 Gray, 477.
    9. In many of the authorities in which such testimony has been admitted, the paper was signed by a cashier on behalf of his bank —the name of the bank being expressed in some cases, and in others not. They may be explained, however, on the ground that the duties of such officers are so uniformly the same, and so well understood, that the signature of a cashier, as such, has acquired the import of an engagement, not by an individual, but by a bank. Wild v. Bank of Passamaquody, 3 Mason, 505; Fleckner v. United States Bank, 8 Wheat. 338, 360; Bank of Genesee v. Patchin Bank, 19 N. Y. 312; Potter v. Merchants’ Bank of Albany, 28 Ib. 641; Bank of New York v. Bank of Ohio, 29 Ib. 619.
    10. But whether or not a principal, not named in a written contract, can be charged thereon by parol evidence, it is ^entirely clear that an agent, who has made such a contract in his own ñamo, can not bo discharged therefrom by such evidence. Higgins v. Senior, 8 Mees. & Wels. 834; Simonds v. Heard, 23 Pick. 120, 127; Huntington v. Knox, 7 Cushing, 371; Ford v. Williams, 21 How. (U. S.) 289; Baldwin v. Bank of Newbury, 1 Wal. 242; Jones v. Littledale, 6 Adol. & Ellis, 486.
    11. It can not be claimed that there was any mistake in the form in which the papers were executed, which would justify a court of equity in reforming the contract, so as to make it binding on the steamship company only. There was no mistake in which the insurance company participated. And if Collins had a secret intention, other than that expressed, he can not require that the contract should be made to conform thereto. Only such terms as were mutually agreed upon are binding on the parties. Suydam v. Columbus Ins. Co. 18 Ohio, 459, 468; Neville v. Merchants’ & M. Ins. Co., 19 Ib. 452; 1 Duer on Insurance, 159, sec. 2.
   Welch, J.

The first question made in the case is, whether there is sufficient proof of the insurance company’s knowledge that Collins was acting as agent. That question we need not discuss unless we think the fact of such knowledge would make a defense for ■Collins against an action on the notes. Would it make such defense ? In other words, where an agent makes a promissory note in the form of these, is he liable, as maker of the note, notwithstanding the fact that the payee knew he was acting as such agent at the time? We are of opinion that he is so liable. To hold otherwise, it seems to us, would be to make a new contract for the parties.

The name of the principal nowhere appears upon these notes; and the operative words, “7 promise to pay," in the body of the notes, are utterly inappropriate to charge the principal. Without the word agent,” they are plainly, and in direct and appropriate language, the notes of E. K. Collins. With that word added, they are admittedly still his notes, unless aided by parol proof. Now, is it competent to show by such proof, that the parties intended, by che simple word “agent,” to change the whole tenor of the note? To change, *as it were, the words “7” (E. K. Collins') “promise,” into the words “The ship company promises?" If the word “agent," and the words “ I promise," can be made to harmonize, they must both stand as the parties wrote them. Such is the well-known rule. And there is no trouble in so harmonizing them, if we read the word “ agent" as mere personal description, or as a memorandum for the use of the principal and agent.

We have looked in vain over the numerous cases cited to find any one like the present, and in which the agent was not held liable. Most of the cases relied upon as such will be found to be those where the question was as to the liability of the principal, and not as to the discharge or non-liability of the agent. The liability of the principal resting in the fact that the contract was made under his authority, and not in the fact that it was made in his name, it is easy to see .that different rules of evidence would apply.

The cases cited, in which the agent was held not liable, appear to be those where he was sought to be charged as indorser of negotiable paper, or — which is much the same thing — as drawer of bills of exchange. The difference between that class of cases and the present is also quite obvious. Where an agent has the legal title to a note or bill, his indorsement is indispensable to pass that title. The indorsement, like a deed, is a simple transfer of title. The liability of the indorser arises, mainly, outside of the indorsement. That liability may be changed without changing the indorsement itself. It is a mere implication of law, arising upon the indorsement. No question of the admissibility of parol evidence is; involved in such cases; for, whether the law casts the implied liability upon the agent who has a mere legal title; or upon the real equitable owner of the note or bill, in either case the written contract, the indorsement, stands unchanged by the proof. The same reasoning applies, in a sense, to the drawing of a bill of exchange by an agent upon funds of the principal standing in the-agent’s name. The bill is a transfer of the funds, and the liability is an implication of law.

We think, with the court below, that the notes are the individual notes of Mr. Collins, notwithstanding the knowledge *of his agency; and that it is not competent for him, by proof of that .agency and knowledge, or by other parol proof, to vary the effect of the notes, by showing his intention to bind the principal only.

It is claimed, also, that the court below erred in refusing to reform-the notes, or rather in failing to reform them, for the court does not appear to have been asked to do so, either in the pleadings or at bar. To this claim it is certainly a full answer to say, not only that there is no prayer in the answer for any such relief, but there is no allegation of mistake or fraud therein, nor was there any proof of such mistake or fraud on the trial. There was proof tending to show that Collins intended to bind his principal only. But there was no pretense of proof that the defendants in error so intended. There was no error, therefore, in the court’s alleged refusal to reform the notes.

Judgment affirmed.

Hay, C. J., and White, Brinkerhoff, and Scott, JJ., concurred.  