
    Saratoga Special Term,
    October, 1850.
    Paige, Justice.
    Hicks vs. Hinde and others.
    Where the drawer of a draft signs his name as “ agent,” the name of his principal being disclosed, at the time, and the payee knows that the drawer was authorized by his principal to draw the draft, as-his agent, and that he actually signed it as such agent, the drawer is not liable personally, upon the draft.
    The drawer of a bill of exchange is, like an indorser, considered as a surety, and may, like an indorser, add to his signature restrictive or qualifying words, to exempt himself from personal liability.
    This was an action brought upon a draft, dated Aug. 1,1848, drawn by the defendant Hinde as agent, on the defendant L. T. Beardsley, in favor of the plaintiff Hicks, for $120,82. Hinde signed the draft John Hinde, agent.” The draft was accepted by Beardsley, but was not paid by him when it became due. It was protested for non-payment, and notice was given to Hinde. Hinde, at date of the draft, had charge of a factory in Waterford, for Beardsley, as his agent. Beardsley authorized Hinde to draw the draft as his agent. It was drawn for rent due by Beardsley to Hicks. Hicks, Hinde and Beardsley were together at the time the draft was given, and accepted by Hicks. When he accepted the draft, Hicks knew that "Hinde was Beardsley’s agent, and that Hinde was authorized by Beardsley to draw the draft as his agent, and that he signed it as such agent. The plaintiff objected to all parol evidence in relation to the draft. The cause was tried by the court, a jury being waived by the parties.
    
      E. F. Bullard, for the plaintiff.
    
      W. H. King, for the defendant Hinde.
   Paige, J.

It is insisted, on the part of the plaintiff, that Hinde is personally liable on the draft, as it does not appear on the face of the draft that he signed it as agent of Beardsley. It is also insisted that parol evidence is inadmissible' to explain, add to, or vary, the draft. The case of Pentz v. Stanton, (10 Wend. 271,) is cited in support of these propositions. In that case one West was the agent of a manufacturing establishment, and as such purchased a quantity of dye stuffs for the use of the factory, without disclosing the name of his principal, and the bill of goods was made out against West as agent, rvithout stating the name of the principal, and West as agent drew a draft on one Carey, in favor of the plaintiff, for the price of the goods, and signed the draft “H. F. West, agent.” The name of the principal was not disclosed to the plaintiff, by the agent, at the time of the purchase of the goods and giving of the draft, and the agent did not inform the plaintiff that he was authorized by his principal to draw the draft as his agent. In this case the name of the principal was disclosed, and the plaintiff knew that Hinde was authorized by Beardsley, his principal, to draw the draft in question as his agent, and that he actually signed it as such agent. It appeared from the evidence that Hinde did not intend to bind himself personally. If ho had added to his signature “ agent for L. T. Beardsley,” instead of agent merely, it will be conceded that he would not have been personally bound. (Brockway v. Allen, 17 Wend. 40. Randall v. Van Vechten, 19 John. 60. Skinner v. Dayton, Id. 554, 548. Bank of Columbia v. Patterson, 7 Crunch, 299, 307. White v. Skinner, 13 John. 307. 2 Kent's Com. 630, and note a, 6th ed. 4 Wend. 285. 15 John. 1.) A contract not necessary to be in writing under seal will be binding on the principal, if it appears in any part of the instrument that it was intended to be executed by his agent for him, in the character of agent merely, (Evans v. Wells, 22 Wend. 335, per Chancellor Walworth.) The case of Hills v. Bannister, (8 Cowen, 31,) was overruled by the case of Brockway v. Allen, (17 Wend. 41.) If, in Taft v. Brewster, (9 John. 344,) it had been shown that the Baptist Society of Richfield was a corporation, and that the bond given by the defendants was given for a corporate debt and that the defendants were authorized to execute the bond, they, as the law is now understood, could not have been held to be personally liable. In Mott v. Hicks, (1 Cowen, 514,) where a note was made payable to J. Horsefield or order, and indorsed by Mm “ J. Horsefield, agent,” it was held that although nothing appeared to show that he was in fact agent, yet he was not liable as indorser. The indorsement was regarded as special, and equivalent to a declaration that the indorser would not be personally liable. (1 Cowen, 534, 538.) The acceptor of a bill of exchange, like the maker of a note, is considered as the original and principal debtor, and primarily liable, and the drawer and indorsers are considered as sureties, liable as such, guarantying the performance of the principal’s contract. (Chit, on Bills, 26,192.) The engagement of the drawer, like that of an indorser, is conditional,jozAh-at he will pay the bill provided it is presented in proper time to the acceptor and he fails to pay it; and provided also that he is duly notified of the dishonor of the bill. (20 John. 366.) The drawer may, like an indorser, add to his signature restrictive or qualifying words, to exempt himself from personal liability (Chitty on Bills, 32, 33, 34, 234.) A transfer by indorsement of a bill is equivalent in its effect, to the drawing of a bill; the indorser being, in almost every respect, considered as a new drawer on the original drawee. (Chit, on Bills, 241. 1 Salk. 133. 3 East, 482.) And a promissory note n/t indorsed may be declared on as a bill of exchange. The maker of the note stands in the situation of the acceptor of a bill. (Chit, on Bills, 241, 2.) The obligation which an indorsement imposes on the indorser to the indorsee, and the mode in which that obligation may be extinguished, is in all respects exactly similar to that which a drawer of a bill is under to the payee, And Lord Ellenborough, in Ballingall v. Gloster, (3 East, 482,) says, “ When it is laid down that an indorser stands in all respects in the same-situation as a drawer, all the consequences follow which are attached to the situation of the latter.” (Chit, on Bills, 241,242,10th Am. from 9th Bond, ed.) If the drawer of an accepted bill is, like an indorser, considered as a surety, and stands in all respects in the same situation as an indorser, and may like an indorser add to his signature restrictive or qualifying words to exempt himself from personal liability, it would seem necessarily to follow that whatever restrictive or qualifying words exempt an indorser from personal liability will have a like effect upon a drawer, when added to his signature. If this proposition can not be disputed, then the case of Mott v. Hicks, (1 Cowen, 514,) disposes of this case. There the addition by the indorser, to his indorsement, of the word “ Agent,” was held to be equivalent to a declaration that he would not be personally liable. Why should not, upon principle, the same effect ffinv from the addition of the same word by Hinde to his signature to the draft in question ?

There are some cases of ambiguities, where the words are equivocal, but Avhich admit of precise and definite application by resorting to the circumstances under Avhich the instrument was made. In such cases parol evidence is admissible, of the circumstances attending the transaction. (2 Cow. & Hill’s Notes, 1358. Persil v. Dickson, 1 Mason’s Rep. 10 to 12.) In Stone v. Logan, (9 Mass. Rep. 55) being an action by the payee against the drawee of a bill of exchange, parol evidence Avas received of verbal conditions and restrictions, subject to Avhich an-absolute written engagement of the drawee to accept the bill was made, such verbal conditions and restrictions having been communicated to the payee by the drawer at the time the bill was drawn. So in case of a blank indorsement of a note or bill of exchange, contemporaneous parol stipulations showing that the indorsement was intended to be restrictive, is ^admissible in evidence, upon the principle that the -written engagement is left incomplete by the parties. (2 Cowen & Hill’s Notes, 1473. 11 Mass. Rep. 31.)

In Louisiana a person may draw as agent, upon his principal, for a debt not personal to himself, but due by the principal to the payee, without expressing the agency on the face of the bill. (Wolfe v. Jewett, 10 Curry, Louis. Rep. 383.) In the Meck. Bank of Alexandria v. The Bank of Columbia, (5 Wheat. 326,) where a check was drawn by a person who was the cashier of a bank, but Avithout affixing to his signature his title of cashier, parol evidence was received to show that he signed the check as cashier.

But I prefer to place the decision of this case upon the ground that the draAving of the draft by Hinde is restrictive; and that

the addition of the word agent was, as was held in Mott v. Hicks, equivalent to a declaration that he would not he held personally responsible on the draft. This case may be distinguished from the case of Pentz v. Stanton. In that case the name of the principal was not disclosed to the vendor, by the agent, at the time of the purchase of the goods and giving of the draft for the price of the goods. The non-disclosure of the principal made the agent personally liable for the goods. And being so liable, it was proper he should be held personally liable on the draft. (Dunlap’s Paley on Agency, 371. 2 Kents Com. 630. 20 Wend. 434, per Chancellor.) In the case of Stackpole v. Arnold, (11 Mass. Rep. 27,) the agent affixed his own signature to the promissory notes on which the suit was brought, without any superadded restrictive or qualifying words; and at the time he gave the notes he did not disclose to the payee the name of his principal. Neither that case, nor either of the other cases relied on in the case of Pentz. v. Stanton, resemble the present case.

Upon the whole I have come to the conclusion that the defendant Hinde is not personally liable on the draft in question. Judgment must therefore be entered in his favor.  