
    Robinson v. Kanawha Valley Bank.
    
      Bill of exchange — Acceptance by agent — Admissibility of parol evidence.
    
    The drawee of a bill of exchange, drawn by the Kanawha & Ohio Coal Co.,” was described in the bill as “John A. Robinson, Agt.,” and it was accepted by him as “John A. Robinson, Agent K. & O. C. Co.” Held, that the acceptance so made was the personal obligation of John A. Robinson, and that in a suit upon the acceptance by an indorsee against him, parol evidence was not admissible, in the absence of fraud, accident, or mistake, to show that the defendant so accepted the bill intending to bind the drawer as his principal, and that this fact was known to the plaintiff at the time it became tlie owner and holder of it.
    Error to the Superior Court of Cincinnati.
    The plaintiff below, the Kanawha Valley Bank, brought suit in the Superior Court of Cincinnati to recover against John A. Robinson as acceptor of the following bill of exchange :
    “ $265.87. Kanawha & Ohio Coal Co.,
    “ Coalburo, "W. Va., May 14,1874.
    “ Seventy-five days after date pay to the order of J. D. Moore two hundred and sixty-five and 87-100 dollars.
    “Kanawha & Ohio Coal Co.,
    By "W. IT. Edwards, Pres’t.
    
    “ To Jno. A. Robinson, Agent, Cincinnati, Ohio.”
    
    "Written across the face of the bill was the following acceptance :
    “Accepted, payable at Lafayette Bank, Cincinnati, Ohio-
    “ Jno. A. Robinson,
    
      “Agent K. O. G. Co.”
    
    The defendant answered: “ That the bill of exchange sued on .was drawn by the said Kanawha and Ohio Coal Company, a corporation, by its president, upon the defendant as the agent of said company, with the intent that it should be accepted by the defendant as agent so as to bind the said company aud not the defendant individually; that as the agent of the said company, and for the said company, and not for himself, he accepted the said bill, and he was fully authorized by said company to accept said bill for said company; that the said bill was drawn for said company and- received by the said payee for and on account of said company, and said payee then knew that the defendant was the agent of said company and accepted it for said company; that the plaintiff, when it received the said bill, well knew it was drawn upon the defendant as the agent of said Kanawha and Ohio Coal Company, and accepted by him as said agent for the said company, and not for himself, and drawn and accepted on account of the business of said company.
    “ The defendant therefore denies that he accepted the said bill, or is liable thereon as an acceptor, and prays judgment.”
    A jury was impaneled to try the issues made by a reply denying the averments of the answer. On the trial the court permitted the defendant to show that the initials “K. & O. C. Co.” meant the “Kanawha and Ohio Coal Company,” but rejected all the other testimony offered to support the averments of the answer; and the bill, with the acceptance, having been offered in evidence, directed a verdict for the plaintiff.
    The verdict was rendered, and a motion for a new trial, on the ground that the court erred in rejecting the evidence offered by the defendant, and in directing a verdict for the plaintiff, having been made and overruled, to which the defendant excepted, judgment was rendered for the plaintiff.
    These rulings of the court are assigned for error here, and the judgment is asked to be reversed.
    
      
      Lincoln § Stephens, for plaintiff in error:
    I. The draft, upon its face, shows that it was not intended to bind Robinson personally;' but, on the contrary, that it was the company which was-intended to be bound. The name of the company appears in bold letters upon the face of the draft, and also as the'dra.wer. It appears from an inspection of the the paper that it was the intention, both of the drawer and Robinson, to give the acceptance of the company. The Kanawfia bank knew of the agency-of Robinson, and that he was in the habit of accepting for the company in the same form. ■ ’
    The court always lays hold of any indication on the face of the paper, however informally expressed, to enable it to carry out the intentions of the parties. Carpenter v. Farnsworth, 106 Mass. 661.
    The following are some of the cases ih which the persons who wrote the signatures were held not personally liable: Ballou v. Talbot, 16 Mass. 461; Tucker Man. Co. v. Fairbanks, 98 Mass. 104; Tripp v. Swanzey Paper Co., 13 Pick. 291; Fuller v. Hooper, 3 Gray, 334; Bank of British Am. v. Hooper, 5 Gray, 567; s. c., 66 Am. Dec. 390; Slawson v. Loring, 5 Allen, 340; Chipman v. Foster, 119 Mass. 189; Cutler v. Ashland, 121 Mass. 558; Goodenough v. Thayer, 132 Mass. 152; Hitchcock v. Buchanan, 105 U. S. 416; Post v. Pearson, 2 Sup. Ct. Rep. 799; Hovey v. Magill, 2 Conn. 680; Shelton v. Darling, 2 Conn. 435; Despatch Line of Packets v. Bellamy M’f’g. Co., 12 N. H. 205; s. c., 37 Am. Dec. 203; Lacy v. Dubuque Lumber Co., 43 Iowa, 510; Laflin & Rand Powder Co. v. Sinsheimer, 48 Md. 415; Am. Lead. Cas. 633; McClellan v. Reynolds, 49 Mo. 312; Means v. Swormstedt, 32 Ind. 87; Baker v. Chambles, 4 Greene (Ia.), 428; Hardy v. Pilcher, 57 Miss. 18; Babcock v. Beman, 11 N. Y. 200; Kean v. Davis, 1 Zab. 683; s. c., 47 Am. Dec. 182; Milligan v. Lisle, 24 La. Ann. 144; Webb v. Burke, 5 B. Mon. 51; Roberts v. Button, 14 Vt. 195; Brockway v. Allen, 17 Wend. 40; Conro v. Port Henry Iron Co., 12 Barb. 27; Lazarus v. Shearer, 2 Ala. 718: Drake v. Flewellen, 33 Ala. 106; Bruce v. Lord, 1 Hilt. (N. Y.) 248; Early v. Wilkinson, 9 Gratt. 68; Haile 
      v. Peirce, 32 Md. 327; Hood, v. Hallenbeck, 7 Hun, 362; Amison v. Ewing, 2 Cold. 366; Owings v. Grubbs, 6 J. J. Marsh. 32; Johnson v. Smith, 21 Conn. 627; Andrews v. Estes, 11 Me. 287; s. c., 26 Am. Dec. 521; Stearns v. Allen, 25 Hun, 558; Barlow v. Cong. Soc., 8 Allen, 460; Simpson v. Garlund, 72 Me. 40; Wallis v. Johnson School Township, 75 Ind. 368; Scanlan v. Keith, 102 Ill. 634. See also Whart. Ag., secs. 291, 292, 293; Ang. & Am. Corp., sec. 295; Story Prom. Notes, sec. 69; Par. N. & B. 97.
    H. Parol proof was admissible to show the meaning of the initials, the circumstances under which the contract was made, and the true nature of the transaction. The Laflin & Rand Powder Co. v. Sinsheimer, 48 Md. 411; Hardy v. Pilcher, 57 Miss. 18; Lacy v. Dubuque Lumber Co., 43 Iowa, 510; Mechanics' Bank v. Bank of Columbia, 5 Wheat. 326; Kean v. Davis, 1 Zab. 683; s. c., 47 Am. Dec. 182; 1 Am. Lead. Cas. 632, 633; Ang. & Am. Corp., sec. 293; 1 Dan. Neg. Inst., sec. 418; Hood v. Hallenbeck, 7 Hun, 362; Brockway v. Allen, 17 Wend. 40; Conro v. Port Henry Iron Co., 12 Barb. 27; Hale v. Pierce, 32 Md. 327; Haight v. Sahler, 30 Barb. 218; Brown v. Douglas, 38 Barb. 312; Early v. Wilkinson, 9 Gratt. 68; Scanlan v. Keith, 102 Ill. 634; Bean v. Pioneer Min. Co., 66 Cal. 451; Bank of Newbury v. Baldwin, 1 Cliff. 519; Metcalf v. Williams, 104 U. S. 97.
    
      W. H. Mackoy, for defendant in error.
    I. The words “ agent K. & O. C. Co.” are simply a description of the person. Titus v. Kyle, 10 Ohio St. 444; Anderton v. Shoup, 17 Ohio St. 125; Bank v. Cook, 38 Ohio St. 442; Tucker Man. Co. v. Fairbanks, 98 Mass. 101; Thomas v. Bishop, 2 Strange, 955; Hills v. Bannister, 8 Cow. 31; Barker v. Mec. Fire Ins. Co., 3 Wend. 94; s. c., 20 Am. Dec. 664; Moss v. Livingston, 4 N. Y. 208; Taft v. Brewster, 9 John. 334; s. c., 6 Am. Dec. 280; Savage v. Rix, 9 N. H. 263; Stone v. Wood, 7 Cow. 453; s. c., 17 Am. Dec. 529; Fiske v. Eldridge, 12 Gray, 474; Slawson v. Loring, 5 Allen, 340; De Witt v. Walton, 9 N. Y. 571; Trask v. Roberts, 1 B. Mon. 201; Whitney v. Sudduth, 4 Met. (Ky.) 297; Parks v. President, etc., 4 J. J. Marsh. 456; Caphart v. Dodd, 3 Bush, 585; Burbank v. Posey, 7 Bush, 372; Fogg v. Virgin, 19 Me. 352; s. c., 36 Am. Dec. 757; Pack v. White, 78 Ky. 243.
    II. An agent having authority to contract in the name of his principal, and intending so to contract, .who uses words importing a personal engagement — although he describe himself as agent — binds himself, and not his prin-cipal. Combes’ case, 9 Coke, 76, 77; Titus v. Kyle, 10 Ohio St. 444; Potts v. Rider, 3 Ohio, 71; Tucker Man. Co. v. Fairbanks, 98 Mass. 101; Stone v. Wood, 7 Cow. 453; s. c., 17 Am. Dec. 529; Nicholls v. Diamond, 9 Exch. 154; Savage v. Rix, 9 N. H. 263; Leadbitter v. Farrow, 5 M. & S. 345; Taber v. Cannon, 8 Met. (Mass.) 456; Hopkins v. Mehaffy, 11 Serg. & Rawle, 126; Furnivall v. Coombes, 5 M. & G. 736; Appleton v. Binks, 5 East, 148.
    III. The intention of the party signing must be gathered from-the instrument, and parol evidence is not admissible. Titus v. Kyle, 10 Ohio St. 444; Anderton v. Shoup, 17 Ohio St. 125; Wilson v. Bailey, 1 Handy, 177; Trask v. Roberts, 1 B. Mon. 201; Bank v. Cook, 38 Ohio St. 442; Higgins v. Senior, 8 M. & W. 834; Whitney v. Sudduth, 4 Met. (Ky.) 297; Stackpole v. Arnold, 11 Mass. 27; s. c., 6 Am. Dec. 150; 1 Dan. Neg. Inst., sec. 300.
    IV. The court cau not supply “ as,” “ for,” or any other operative word after “ agent.” It has been held in this state that “ when the clause of a deed containing the covenant of seizin is blank as to the names of those who are seized, it does not amount to a covenant of seizin by the grantors.” Day v. Brown, 2 Ohio, 345.
   Minshalu, J.

It is apparent that the question presented is precisely the same as would have arisen on a demurrer to the answer, and we shall so treat it. Evidence as to the meaning of the initials, without the other circumstances, could in no way vary the rights and liabilities of the parties. If the facts stated in the answer constitute a defense, the defendant should have been permitted to prove the same, as he offered to do by the evidence ruled out. If not, then there was no error in rejecting it, and the judgment should be affirmed.

There is nothing in the answer to the effect that, at the time Robinson accepted the bill, he did not have funds of the drawer in his hands applicable to the payment of the bill at its maturity, or that he did not expect to have, and ■that this fact was known to the plaintiff’ when it became the owner of it. It is entirely consistent with the hypothesis that he was acting as the agent of the drawer at Cincirinati, a coal company doing business at Coalburgh, W. Va.; and that in the transaction of its business at Cincinnati, he then had, or expected to have, funds of the company in his hands applicable to the payment of the bill and on which it had been drawn. The relation of principal and agent may exist between drawer and drawee, without changing the rights of the payee against the drawee upon his acceptance of the bill. When the principal, located at one place, draws upon his agent located at another, the natural presumption is, from the, usual course of business, that it is against funds of the principal that are, or will be, in the hands of the agent, and which the principal requests the agent to apply to the payment of the bill at its maturity. “A bill of exchange is presumed to be drawn on funds, with the understanding between drawer and drawee that it is an appropriation of the funds of the former in the hands of the latter, and acceptance is an admission that it was so drawn, and of such a relation between the parties.” 1 Par. N. & B. (2 ed.) 323.

The usual relation between the drawee and the drawer is that of debtor and creditor; and such relation in fact exists between an agent and his principal, where the latter has funds in the hands of his agent. The bill here, as drawn and accepted, is consistent with and supposes such relation; and, as we have observed, there is nothing in the answer to the effect that such relation did not exist, nor was there any evidence offered to the contrary. Robinson was not bound to accept; or he might have done so on condition that he had funds of the principal at the maturity of the bill, and thus have qualified his obligation. But as it is, his acceptance imports the possession of funds, and obliges him to pay the bill. 1 Par. N. & B. (2 ed.) 301, and note (w).

The fact that he is designated in the bill and described in his acceptance as agent, does not vary the case. This description of himself may, and no doubt did, serve a useful purpose in the settlement of his accounts with the company.

The law as to notes and bills, executed by persons acting as agents of other persons, is not uniform, but, as a rule, where one acting as agent uses words that import a personal agreement on his part, and signs his own name, it is held to be his individual obligation, although he describe himself as agent; the added words being regarded simply as a description of his person. The rule is in conformity to precision in the use of language, and secures that certainty in negotiable paper so necessary to commercial transactions. Thomas v. Bishop, 2 Strange, 955; Barker v. Mec. Fire Ins. Co., 3 Wend. 94; Dan. Neg. Inst., § 300.

The question has been presented and so ruled in a number of the reported decisions of this court.

Thus, in Titus v. Kyle, 10 Ohio St. 444, where the makers had described themselves in the body of the note as directors of a certain turnpike road, and the note read, “ One year after date, we, or either of us, as directors, etc., promise to pay,” to which each signed his individual name, it was held that each was individually liable, and that in the absence of an averment of fraud or mistake, the makers could not be permitted to show an intention on their part not to bind themselves individually.

In Collins v. Buckeye Fire Ins. Co., 17 Ohio St. 215, the note read, “ I promise to pay, etc.,” ,and was signed “ Edward K. Collins, Agent.” The defense was that the payee had notice of the agency of the maker, and that he. was not lia— ble individually upon the note. But the court held that parol evidence was inadmissible for that purpose, and that Collins was personally liable upon the note. These cases show that, in this state, where one acting as agent signs his individual name to a note, that, by its language, imports a personal liability on his part, ho is bound accordingly, although in signing the note he describes himself as agent.

We fail to see how it can make any difference in this respect whether the party signing describes himself as agent simply, or adds the name of his principal; in either case the principle upon which his liability is established and parol testimony excluded must be the same; the instrument upon its face is his own, and not the promise of his principal. To this rule usage has established an apparent exception, in the instances where a bill is drawn or accepted by the cashier of a bank. But it is rather apparent than real, since the custom by which a cashier represents his bank in such matters, by simply signing his own name, is so general, that the practice has reduced the custom to the certainty of a law, as it is every-whore understood that, in such cases, whether he describes himself as cashier or not, he is an altet ego of the bank. ■ His signature is a recognized mode in which a bank may become a party to commercial paper; and the obligation so created is that of the bank and not of the cashier.

There is a marked distinction between this case and those in which the question just discussed usually arises. Ordinarily the principal is some third person, not otherwise related to the bill, but here it is claimed that he is the drawer, and if the acceptance be treated as his, and not that of Robinson, the paper loses its character of a bill of exchange and becomes a promissory note only, and the payee, instead of having a fund appropriated to the payment of his demand or secured by the obligation of an acceptor, is reduced to the personal obligation of the drawer only. This aspect of the case, as unfavorable to the defense, has been commented on, and does not require to be further enlarged.

The cases, however, to which we have adverted, show that a promissory note signed by an agent, in the manner this acceptance was made, becomes the individual liability of the agent, and would be decisive of this case, though the principal were a third party, unless an acceptance differs in principle from the making of a note, as does an indorsement. It seems that an indorsement may be explained by parol, as pointed out by Welch, J., in Collins v. Buckeye Fire Ins. Co., 17 Ohio St. 224. The indorsement being a mere transfer of title, the obligation arising outside of it may be changed without affecting the indorsement itself. But the obligation of an acceptor is an express one; it is to pay the bill at its maturity according to the order contained in it. The language of the books is that the acceptor of a bill is as the maker of a note, and that when the drawer accepts he comes at once under an absolute obligation to pay the bill according to its tenor. 1 Par. N. & B., sec. 2, chap. 4. No distinction between a promissory note and an acceptance exists in this regard, and so it has been held, that the legal effect of an acceptance, as an absolute contract to pay, can not be varied by parol. Heaverin v. Donnell, 7 Smedes & M. 244; s. c., 45 Am. Dec. 302; Adams v. Wordley, 1 M. & W. 374; Hoare v. Graham, 3 Camp. 57; 1 Par. N. & B. 301; Cummings v. Kent, 44 Ohio St. 92.

Judgment affirmed.

Folleto?, J., dissents.  