
    SOUTHERN SUPPLY CO. vs. CHARLES McC. MATHIAS.
    
      Signature — In Representative Capacity — Lack of Authority — • Effect — Note of Receiver.
    
    Code, art. 13, sec. 39, providing that where' the instrument contains, or a person adds to his signature, words indicating that he sighs on behalf of a principal, or in a representative capacity, he is not liable on the instrument if he was duly authorized, does not under all circumstances impose a personal liability on one who without authority signs a promissory note in a representative capacity. p. 260
    The statute does not prevent persons wdth full knowledge of all material facts dealing with one acting in a representative capacity, from agreeing with him that he shall not be personally bound by contracts executed by him in that capacity, p. 260
    In eases where the rights of a holder in due course are not' involved, persons who take a promissory note signed by one in a representative capacity, with knowledge that he was not authorized to sign it, may agree that he shall not be personally liable thereon. - p. 261
    One who accepts a note signed by a receiver, knowing that the receiver executed the note only as receiver, and had no intention of binding himself personally, cannot hold the receiver personally liable because it subsequently appears that he and the receiver were mistaken as to the receiver’s authority to execute it. p. 261
    In an action on a promissory note, executed by the receiver of a corporation for a debt of the corporation, held that the evidence showed that the note was executed by the receiver as such, that he had no intention of binding himself personally, that these facts were known to the payee and plaintiff indorsee, and that the execution of the note was a mere bookkeeping transaction, which did not affect the rights of the parties. pp. 261-263
    
      The testimony of the payee of a note, signed in the name of a corporation “by C. M. M., Receiver,” that he thought that the signature of the note was the personal signature of C. M. M., held, in view of such payee’s apparent business experience, to be incredible. pp. 263, 264
    
      Decided January 23rd, 1925.
    
    Appeal from the Circuit Court for Montgomery County (Ubneb, C. J., and Wobthington, JJ.).
    Action by the Southern Supply Company against Charles MoO. Mathias. Erom a judgment for defendant, plaintiff appeals.
    Affirmed.
    The cause was argued before Bond, 0. J., Adkins, Op-butt, Digges, PTrke-, and Walsii, JJ.
    
      James Morfit Mullen, with whom were Talbott & Prettyman on the brief, for the appellant.
    
      Leo Weinberg, with whom was Robert B. Peter, Jr., -on the brief, for the appellee.
   Offutt, J.,

delivered the opinion of the Court.

On October 2nd, 1920, Charles MeC. Mathias was, by an order of Circuit Court No>. 2 of Baltimore City, appointed receiver for the Columbian Construction Company, and on October 4th, 1920, he qualified as such receiver by filing in’ that court his approved bond.

The Columbian Construction Company was at that time engaged in the construction of sixteen houses on land owned by it on the Reisterstown Road and Oakm'ont Avenue, in B.altimore City. It had been contemplated that lie cost of constructing the houses would be paid from the proceeds of certain mortgages on the property, but prior to the receivership, when the houses were about half completed, its funds failed and it was unable to go on with the construction.

In that extremity Messrs. Emory L. Goblen'tz and. Charles MdO. Mathias, -who were stockholders of 'the company, came to its aid, and by personally endorsing certain of its obligations, made it possible for tbe receiver 'to complete the bouses.

■When Mathias was appointed receiver’ the company was indebted to Frock Brothers, who had contracted to install the plumbing and heating in the houses for $13,000. Their contract had not then been completed, but they were unwilling to proceed unless they received some assurance that they would be paid for 'their work. The receiver then, according to the testimony of George W. Frock, one of the brothers, said to them: “We 'all wtould be sure to get our money; at that time they owed us in the neighborhood1 of $3,000 on an unpaid note, and 'the balance of the work to be done was about $7,600. Mr. Miatbias said at (the meeting that we would get our money; what we did, was under the jurisdiction of the court, and we thought we' would only have a chance of losing between five and six hundred dollars.” After that they went ahead and satisfactorily completed the installation of the plumbing 'and heating systems in the houses. Some time after the completion of these houses Frock Brothers demanded .the payment of the balance due them under their contract, and informed the receiver that they needed money and were being pressed by the Southern Supply 'Company for payment for materials furnished them by it. It was suggested that the receiver give a note for the balance due them, which could he endorsed to the Southern Supply Company on account of their indebtedness to- it. Mathias went to the Southern Supply 'Company, explained the situation to it and it agreed to' accept a “receivership note,” and Mathias as receiver thereupon executed a promissory note to Frock Brothers for $3,426, dated Janu'ary I7.th, 1921, payable in sixty days, which was signed in the following manner, “The Columbian 'Construction 'Company, by Charles McO. Mathias, Receiver,” which note the payees indorsed to the appellant in this dase, and were credited on its hooks with the proceeds thereof. The note was not-paid at maturity, and it then appeared that the- authority of Mathias to execute the note as receiver was disputed. Thereupon the holder asserted that Mathias was personally liable on the note, on the theory that he had signed it as “receiver” of the Columbian Construction Company without authority, and that, therefore, he was individually bound, and upon his refusal to pay it the appellant brought this suit on it against him in his personal and individual capacity. The action was tried in the Circuit -Court for Montgomery County, and at the conclusion of-the testimony -the court directed a verdict for the defendant,- and from the judgment on that verdict this appeal was taken.

The principal question which we are called upon to consider, therefore, is whether the evidence in the case was-legally sufficient to establish a cause of action against Mathias personally on the note sued -on.

The appellant’s contention involves these propositions: (1) That the- appellee had no authority to execute the note in question as a receiver, -and that therefore (2) -he is personally liable thereon under section 39 of 'article 13, O. P.' G. L. In our view of the case it is unnecessary to pass upon the first proposition, and we will for the purposes of the opinion assume th'at Mathias was not authorized to execute the noite in his capacity as receiver, and will pass, there? fore, to the second and controlling question in the case, which is whether he incurred -a personal liability on the note when without authority he signed it as receiver for the Columbian Construction Company. .Section 39, which reads as follow's: ‘■Where the instrument contains, or -a person adds toi his signature, word's indicating- that he signs for or on behalf of a principal, or in a representative capacity, he i-s n-o-t liable on the instrument if he w'as duly authorized, but the mere addition of words describing him as an agent, or .as filling- a representative character, without disclosing his principal, does not exempt him from personal liability,” is identical with section twenty -of the Uniform Negotiable Instruments Act, proposed by the National Conference of Commissioners on Uniform State Laws, and has been the subject of judicial consideration in a number of oases which .are collected in Uniform State Laws, Annotated, and the supplement thereto, annotated by Charles Tbaddeus Terry. We have examined these cases, and in our opinion neither the statute itself nor the oases construing it go- as far as 'the appellant’s contention in this case, which is that “it is an unesieapable alternative of the above quoted section that a. person signing a negotiable instrument in a representative capacity is personally liable, if he had no authority so to do.” The statute does not under all circumstances impose affirmatively a liability upon one who, without authority, signs a promissory note in a representative capacity, fault it exempts from responsibility one who so signs if duly authorized. It therefore leaves the situation in respect to a person signing a promissory note in a representative capacity without authority under the circumstances of this case exactly as it was before the act was adopted. This conclusión seems- inevitable from the language of the statute itself. The question before us, considered irrespective of tbe statute, may be thus- stated: Did Mathias incur a personal responsibility when be signed the note as a receiver without 'authority, if 'the payee and the holder both knew and intended that he should incur no personal responsibility thereby ?

In Boyle v. Rider, 136 Md. 286; Gill v. Carmine, 55 Md, 339, and Knipp v. Bagby, 126 Md. 461, this Oourt recognized and adopted the- principle that, although a trustee even with general powers of management i-s bound personally by the contracts he “may make- .-as trustee, though he designates bimself as such,” nevertheless where the parties to the transaction intended that the trustee should not be personally liable, that the general rule would not -apply.

It seems clear that the statute was intended to reach and correct hardships resulting from the application of the general rule stated iu these oases, -and that it was not intended to prevent persons with full knowledge of all material facts, dealing with one acting in a representative capacity, from agreeing with, him th'at he should not be personally bound' by contracts executed by him in that capacity. American Trust Company v. Canevin, 184 Fed. 657; Gill v. Carmine, 55 Md. 641; Crawford Neg. Inst. 54. There is no- doubt hut that under such circumstances a representative executing -a promissory note would not he personalty bound if he was duty authorized to execute it, and there seems to be no- apparent-reason why the same rule should not apply where he was noit authorized, if the parties so agree with knowledge of that fact, in cases where the rights of a holder in dtte course are not involved. If in such a case -as this the creditor knew that the receiver in executing the promissory note in. question did so only as receiver and had no intention of binding himself personally and accepted the note with that knowledge and that understanding, certainly he ought not to he permitted, when it appears that both he and the receiver were mistaken as to the receiver’s authority to execute it, to hold the receiver liable, on a eontta-ct which he knew the receiver never intended to make, -and which in fact he did not make. Kansas National Bank v. Bay, 62 Kan. 692, 54 L. R. A. 408.

We will now turn to the evidence bearing upon the question of whether the note Was executed by Mathias as receiver.

George L. Henck, -treasurer of the Southern Supply Company, when asked about the note, after referring to the fact that Frock Brothers were indebted to them for materials, said: “Subsequently they brought Mr. -Mialthias in our office and Mr. Mathias -agreed finally to give us a receivership note; we asked for cash ian-d he went away promising to- give us a receivership note for this amount of money, (and a few days afterwards Mr. Frock brought in this note. Q. What, if anything, was said by Mr. Mathias as to him having any authority to sign the note? A. I don’t recall anything he said about the note. My impression was th'at it was a receivership note. I felt that they could not go ahead without due-course, and we were perfectly willing to receive a receivership note.”

George W. Frock, one of the firm of Frock Brothers, testifying* to the same matter, said: “I saw Mr. Mathias in Mr. Hudgins’ office, and Mr. Mathias s'aid- the money gotten ont of the houses had been used for other purposes, and the only source of payment was to take a note; .and when I seen Mr. Mathias he said he would go down to the Southern Supply Company and fix it up; and Mr. Mathias said he was going to give us his note as receiver. I believe Mr. Mathias had to get hack to Frederick that afternoon, .and I think he took the note hack with him to Frederick, from Mr. lugs’s, and after-wards mailed it to m'e, and I took it down to the Southern Supply Company and' indorsed it over to them. * * * That he asked Mr. Mathias to indorse it, .and he said he would; that he trusted the man' to his honesty, thinking that was what he was getting. That he said that in the presence of Mr. Inge. That when the note came it was not indorsed by him on the hack; that he signed as Columbian Construction Company by his name, and witness was so anxious to get it he turned it over to the Southern Supply Company. That Mr. Inge was present; he thinks also Mr. Marshall; he would not say for sure. Mr. Inge was there. That the note did not come, the next day, hut came two or three days later, and was sent from Frederick, that he said expressly that he would indorse it himself individually. 'That witness' had previously seen notes that he had indorsed, and was thinking the same thing was coming to. them. That he did not just infer Mr. Mathias was going to indorse it personally, he just took it at Mr. Mathias’ own word; that the work had then been done; that he did not send it hack for Mr. Mathias1’ individual indorsement, because he drought he had it, that otherwise he never would have taken the note. He said the only thing lie could do is to give his note. He said the money was all gone, and. the only way to pay us was to take his note, and personally indorsed; that he was to give his note as receiver, and then .add his personal indorsement; that he mailed it to witness and witness ¡took it for granted that it was a note as receiver, that witness understood that his signature on the note represented personal liability.” 'On the 20th of M'ay, 1921, Frock Brothers, in a letter to Mathias, in part said: “We remember 'that The Sutheru Supply 'Company asked you for your personal indorsement on the note you gave them on our account, hut we had a glimpse of ta note' you gave another company which undoubtedly bears your personal endorsement, so that we cannot help wondering how much worse off we áre than the favored fellow.”

This testimony, which was offered by the appellant, is not qualified or contradicted by the evidence offered by the defendant, and in our opinion conclusively shows (1) that the note was executed by Mathias as receiver, (2) that he bad no intention of binding himself personally by it, and (3) that those facts were known both to Frock Brother® and to the appellant, and (4) that the execution of the note was a mere bookkeeping transaction which in no way changed or affected the rights of the parties. The statement by the witness, George Frock, that Mathias said he would endorse the note personally, is immaterial, because when the note was received Frock Brothers knew 'that it did not hear his personal indorsement, and long after they had received it they upbraided him because he had not endorsed it personally, since he had personally endorsed notes’ for other creditors.

The conclusion we have stated is moreover supported by the uncontradieted physical facts of 'the case. At the time the notes were given the Work of Frock Brothers had been finished, and the houses completed. Mathias personally was under no obligation either to Frock Brothers or to the Southern. Supply Company, 'and there was no apparent reason why he should personally have assumed the debts of a receivership estate which was, to say 'the least, in a doubtful financial condition. We could not accept the statement of the witness George W. Frock, even if it were relevant, that he thought the signature of the .note was the personal indorse-meat of Mathias. It is' incredible tbait a person with bis apparent business experience and intelligence should have been, so misled as to believe 'that a signature reading “The Columbian Construction Company, by Charles MeC. Mathias, Receiver,” was the individual aud personal signature of Charles MoC. Mathias, and the letter of May 20th, 1921, of Frock Brothers shows that no such mistake was made. There is nothing in the record which could justify us iu imputing fraud to the receiver, ox iu assuming that he personally misled the appellant or Frock Brothers as to Ms right to execute the note. The receivership proceedings were matters of public record, and the extent of Mathias’ authority was known to the appellants as well as it was to Mathias. It knew that the receivership estate had no funds, it gave no new credit on account of the note, but it was willing to take it in the hope that sufficient funds might be realized from sales of its property to make it good. And while it is unfortunate that the contractors who gave valuable labor and furnished material fox 'the benefit of the estate should lose what they had justly earned, that is no reason why they should hold the receiver personally liable on a contract which they well knew he had personally never made.

The record contains two exceptions. At the close of the whole case the plaintiff offered five prayers which the court refused, and the defendant two which were granted, and these rulings are the subject of the second exception. The granted prayers withdrew the ease from the jury and directed a verdict for the defendant, 'and for the reasons stated we find no error in that ruling, and it therefore becomes unnecessary to discuss the plaintiff’s prayers. The first exception relates to the admission in evidence of a .letter from Frock Brothers to the receiver. The letter was both material and relevant, and we find no error in the ruling admitting it. From what we have said it follows thait the judgment appealed from will he affirmed.

Judgment affirmed, with costs.

Bond, C. L,

filed the following ¡separate opinion, in which P'abke, J., concurred:

■ I agree in the 'affirmance of the judgment on the ground that the undisputed evidence in this particular case shows that the parties all understood that payment of the not© was to he made only out of funds of the corporation which were in the receiver’s hands, ¡or might com© into them, -and that the note was to add nothing to the possibility of payment from tha!t source, but was merely to • put the situation in written form. That being the ease, I think the receiver did not incur personal responsibility on his nbte, even though it was unauthorized. But I have been unable to agree with some of the statements of principle on which the decision' is founded. In the first place, the opinion rejects.the contention that one who signs1 a negotiable instrument in a representative capacity without authority to do so is rendered personally liable by section, 39 of ’article 13 of the Maryland Code, originally section 20 of tbe Uniform Negotiable Instruments Law. The discussion of the several authorities on this law at the time of its first publication makes it clear that the section was framed with the deliberate intention of imposing that personal liability. The discussion, generally known as the Ames-Brewster controversy, will be found reproduced in full in Brannan’s Negotiable Instruments Law (3rd Ed.), pages 418 to 549. It appears that Crawford, who made the first tentative draft, adopted his form of the section from the English law, which made no reference to personal liability, but that the commissioners rejected this and adopted the present form from the German Exchange Law, and that they preferred the latter because of the imposition of personal liability. The Whole discussion assumed this liability to be imposed and proceeded from that point to argue the wisdom of it. All ecscept Ames approved it. So far as I have discovered, the clause has been considered in only three cases. In Tuttle v. First Nat. Bank, 187 Mass. 533, the court construed it as just stated, saying, page 535: “Because of the absence of 'authority, ¡and notwithstanding the recital in the body of 'the note, and form of its execution, the promise was his personal 'obligation' enforceable against-him while living, and after his death against his estate.” And this was the construction adopted in Eisinger v. Murphy Co., 48 App. D. C. 476, and 52 App. D. C. 197. In Haupt v. Vint, 68 W. Va. 657, 661, although dealing with a note executed before the adoption of the statute, so that the question did not -arise, the court, replying to- an argument on it, suggested a contrary eonstnxction. The obligation thus imposed on representatives of one kind and another is an imporbaaxt safeguard for persons with whom they may trade, and I have not seen -any reason for adopting a construction which would do away with it.

The opinion further states that there is no reason to hold the receiver here personally liable if he lacked authority to sign as such, because the parties, with full knowledge of all the material facts, agreed .that he should not be so- liable. The material fact in this situation wo-uld be the fact that the receiver was not authorized to sign. I do- not see any evidence of actual knowledge on the paid of the appellant of that lack of authority, -and I am not ready to- accept as a correct principle that the notice which one dealing with a receiver is in other connections construed to have of the limits of the powers of that receiver can have 'the effect of relieving him of the personal responsibility imposed by 'the statute for executing a note as receiver without authority. See Tuttle v. First Nat. Bank, supra. The only •agreement that the receiver should not be personally liable is, it seems, such as may be deduced from his refusal to add his personal indorsement and the acceptance of the note without it. But if this were sufficient to relieve of the statutory liability, there would be very little effectiveness -allowed to- the provision, for a signing in the representative capacity need's little more in any ease to make it amount to a refusal to sign in a, personal capacity, and that little more must -be present in a large number of oases. As I see it, so long as the- dispensing' with a, personal ■indorsement is accompanied by an assumption of authority 'to execute as representative, the dispensing with the personal indorsement has no effect upon the statutory responsibility. A waiver of the latter liability could be founded only on .an agreement taking account in some way of the possibility of lack of authority, and there was no such agreement here.  