
    Lake Shore Nat. Bank v. Butler Colliery Co.
    
      (Supreme Court, General Term, Fifth Department.
    
    January 11, 1889.)
    1. Appeal—Review—Weight of Evidence.
    In the absence of a certificate by the referee that the case contains all thevidence taken at the trial, the court, on appeal, cannot inquire whether his findings of fact are against the weight of evidence.
    •2. Principal and Agent—Indorsement for Principal’s Benefit—Liability.
    Though the note of a corporation be made payable to, and discounted and indorsed by, an agent, in his own name, yet, if it appear from the conduct of the parties that credit was given, not to the agent, but to the corporation, and that it was intended that the corporation should be bound by the indorsement, the corporation is alone liable.
    
    •U. Trial—General and Special Findings—Notice of Protest.
    While a general finding that a notary’s certificate recited that notice of protest was mailed"“for E. S. Hubbell, directed, Buffalo, N. Y.; for B. S. Hubbell, Agt. for Butler Colliery Co., inclosed to E. S. Hubbell, ” is by itself evidence that the latter notice was inclosed in a letter containing the former, properly addressed, yet such finding is overcome by a special finding that the notice to Hubbell, as agent, had no place of address.
    Appeal from judgment on report of referee.
    The defendant is a corporation■ organized under the General Laws of the 'State of Pennsylvania for the purpose of mining for coal, and preparing the same for and conveying it to market. The lands upon which it was authorized to carry on its operations were all located in the state of Pennsylvania. The statute provides that the business of corporations organized under its provisions shall be managed and conducted by a president, board of directors, .a clerk, treasurer, and such other officers, agents, and factors as the company .may authorize to act for it. The company established an office at Elmira, in this state, where its general business was transacted, and the president and ■officers were residents of this state. The company sold large quantities of coal in the city of Buffalo, where it kept an office; Eli S. Hubbell acting as its agent in the management of the business transacted at that place. The .action is upon four several promissory notes, all dated in the months of April, May, and June, 1886, and made payable to and indorsed by Hubbell as agent for the company, all of them being discounted by the plaintiif at his request; -amounting, in the aggregate, to the sum of $2,176.57, for which sum, with •costs, judgment was entered. From this judgment the defendant appeals.
    Argued before Barker, P. J., and Haight, Bradley, and Dwight, JJ.
    
      J. W. Dininny, for appellant. Holt <& Holt, for respondent.
    
      
       As to the proper manner for corporation officers to sign negotiable instruments, and "the liabilities created thereby, see Davis v. England, (Mass.) 6 N. E. Rep. 731, and note; Heffner v. Brownell, (Iowa,) 39 N. W. Rep. 640, and note. Where one merely adds the word “agent” or an official title, without disclosing his principal, he is personally bound. Stevenson v. Polk, (Iowa,) 32 N. W. Rep. 340, and note. See, also, Steam-Ship Co. v. Harbison, 16 Fed. Rep. 681, and note.
    
   Barker, P. J., (after stating the facts as above.)

We have reached the ■conclusion that notice of the demand, non-payment, and protest of the Elieanora B. Grant note was not duly served, so as to charge the defendant.as in■dorser, for reasons hereinafter stated. Upon the facts, as found by the referee and set forth in his decision, the legal conclusion that the defendant is liable as indorser upon each of the other notes is well supported. The evidence, as set forth in the ease, tends to support each fact which it was neces-sary for the plaintiff to maintain to establish the defendant’s liability as indorser upon each of those notes. The referee has not made a certificate that .the case, as settled by him, contains all the evidence produced on the trial. Therefore on this appeal this court cannot look into the evidence for the purpose of determining the point made by the appellant that some of the material -findings of fact are against the.weight of evidence. We can only review the questions of law presented by the exceptions. Porter v. Smith, 107 N. Y. 531, 14 N. E. Rep. 446; Spence v. Chambers, 39 Hun, 193. The makers of the several promissory notes were debtors of the defendant, and the consideration for each note was their respective indebtedness to the company. The-business of the company carried on at Buffalo by the defendant was legitimate, and within the powers conferred upon it by the charter. This business-was conducted by Hubbell as the company’s agent, duly appointed to conduct that branch of its operation. He was in sole charge of the same at that place, and the transactions were of considerable magnitude, and extended through a period of years. Tlie indorsement of the notes in suit were made during the latter part of Hubbell’s agency. The notes were dated at Buffalo, and made payable to the order of E. S. Hubbell, agent, “at E. S. Hubbell’s office, 421 Hamburg street.” The indorsement was as follows: “E. S. Hubbell, Agent for Buffalo Colliery Company.” Before the notes in suit were made- and discounted, Hubbell had been in the habit of receiving from the defendant’s customers, doing business with him as agent, notes in form similar to-those in suit, which he indorsed and procured to be discounted by banks doing business in the city of Buffalo, and at the plaintiff’s bank, the proceeds of which were remitted to the defendant’s chief office at Elmira, which was under the immediate superintendence of the president and directors of the company. The referee in his report sets forth the mode and manner in which the business carried on by Hubbell was conducted and managed, and the extent of the same, and, without restating in full the findings in this respect, in this-connection, that the indorsements in suit were made in the usual course of' business as carried on by Hubbell with the knowledge and consent of the company. These facts found by the referee show conclusively that the indorsements were made by Hubbell as the agent of the company, and the form of the indorsements made the same the act of the company. As to the manner in which agents of corporations must execute contracts, in order to avoid, personal liability, and to bind their principals, the general principle is the-same as with the agents of natural persons; and in general, if from the contract itself, or from the contract coupled with the conduct of the parties-thereto, it appears that credit was given, not to the agent, but to the corporation, and that it was the intent of the parties that the corporation should be bound, whatever may be the particular form of the contract, the corporation is alone liable upon it. Ang. & A. Corp. § 288. The rule is illustrated as the-same is applied* in the case of Bank v. Monteath, 17 Barb. 171, which was-affirmed in the court of appeals, (26 H. Y. 505.) In that case the defendants were copartners, doing business under the name of the “Albany and Canal Line of Tow-Boats,” and Thaddeus Joy and George Monteith transacted the-business of the company at Albany, in the name of “Joy and Monteith, Agents,” etc., and Albert Hoyt was their agent in the city of Hew York.. Joy drew drafts upon the Hew York agent, which were signed “Joy and Monteith, Agents Albany and Canal Line of Tow-Boats,” payable to their own order, and addressed to and accepted by “Albert Hoyt, Agent. ” They were also indorsed by Joy, in the name of “Joy and Monteith, Agents,” and. the drafts were discounted by the plaintiff. It was held that the act of Joy and Monteith, in issuing the drafts under the circumstances mentioned, was binding on their principals, for whom they acted, and that the drafts in the-form in which they were issued were the undertakings of the company. In that case it was admitted that Joy and Monteith were authorized to draw and accept drafts for their principals, and in the case at bar Hubbell’s authority to-indorse notes for the company was established by the proofs. In view of the-nature of the business carried on by the defendant in Buffalo by Hubbell as its agent, and the facts found by the referee and set forth in his report, the-form of the indorsement was merely a convenient mode adopted by the agents with the consent of the principal, and thus the form of the indorsement became the adopted name of the company, for the purpose of realizing on its •commercial paper. The learned counsel for the appellant has cited several cases, and among them Dewitt v. Walton, 9 N. Y. 572, in support of bis •contention that the indorsement bound the agent personally, and not the company, In that case there was an absence, as the court held, of proof indicating any consent or authorization by the principal that his agents might make notes in his behalf and in his business in the form adopted m that case; but the rule was distinctly affirmed that, if the principal had adopted the name used as his business designation, he could himself make contracts in that name, and could authorize his agent to contract for him in the same manner; and Brown v. Bank, 6 Hill, 443, was cited in support of the decision. The case of Moss v. Livingston, 4 N. Y. 208, where it was held that the acceptance of the draft in suit was the acceptance of the agent, and not of his principal, was placed on the same grounds as those stated in Dewitt v. Walton.

As to the service of notice of protest on the Elednora B. Grant note, the .referee has made special findings of fact, and from them it is to be determined whether the referee’s legal conclusion can be supported that they were suffi•cient to charge the defendant as indorser. In the body of this report it is stated as a fact “that notice of such presentation for payment, demand of payment, and that the said maker neglected to pay the same, was given to ■said Hubbell as said agent.” At the request of the defendant the referee made a further finding on the same subject, which is as follows: “The notice •of the protest on the Eleanora B. Grant note was addressed: ‘E. S. Hubbell, Agt. Butler Colliery Company. ’ Ho place of address is given. This is the ■only notice of protest on that note.” It should be mentioned, in this connection, that the agent, Hubbell, indorsed the note individually after the in•dorseraent by the company. The notary’s certificate was read in evidence by the plaintiff, and it is stated therein that the note was protested on the day it fell due, and notice to the maker of the note was served on the same day. He also certifies that he deposited in the post-office at the city of Buffalo, and paid the legal postage thereon, due notice of the demand, non-payment, and ;protest, partly written and partly printed, signed by him, and folded in the form of letters, as follows, viz.: “Notice for Eleanora B. Grant, directed, Buffalo, N. Y.; for E. S. Hubbell, directed, Buffalo, N Y ; for E. S. Hub-"bell, Agt. for Butler Colliery Co., inclosed to E. S. Hubbell.” The counsel for the appellant in his printed points admits that it does appear on the face ■of the certificate made by the notary that the notice to Hubbell, as an individual indorser, was addressed to him at Buffalo. As we construe the special finding, it is stated as a fact that the notice of protest for Hubbell, as •agent for the Butler Colliery Company, was inclosed in an envelope addressed to E. S. Hubbell, without any findings as to the place of address, or in what post-office deposited. If it could be fairly held that the notice for Hubbell as •agent was inclosed in a letter directed to E. S. Hubbell, which contained the notice addressed to him personally, then we think that would have been a good service, for the law' presumes that the letter was received by Hubbell; and, if it contains the notice addressed to him as agent, that would have been •a good service, for he had authority to-receive for his principal notice of the dishonor of commercial paper. 2 Daniel, Neg. Inst. p. 49, § 990; B0l findings of fact made by the referee control the general finding on the same subject, and by them it is stated that, in the notice of protest to Hubbell as agent, no place of address was given, and the service of notice was therefore incomplete; and it must be held, as matter of law, that the defendant was not charged as indorser on that note.

The point made tnat it appears by the evidence that Hubbell had been discharged and ceased to be agent when two of the notes in question were protested, and that Mr. Coleman, president of the bank, was notified of the fact, and for that reason service of notice on Hubbell was insufficient, is not supported by the evidence.

Another point made by the appellant is that, long before the notes in suit were made, the company had ceased to do business in Buffalo, and at that time Hubbell was in fact acting for other parties. There is some evidence-tending to show that, before the notes in suit were executed, the defendant had ceased to do business in Buffalo, and that the same kind of business was-carried on by a firm composed of persons who were stockholders and officers-of the corporation, who did their business in the name of the “Butler Colliery-Company,” being the name exactly the same as the corporate name of the defendant, and t'»at Hubbell acted as their agent, and not the agent of the company. This evidence presented a question of fact, and there was much evidence the other way which tends to support the conclusion of the referee that Hubbell was the agent of the defendant at the time the notes in suit were made; and we are not at liberty to examine the proofs with a view of determining whether the finding of the referee, as contained in his report, is contrary to the evidence as claimed by the appellant. The exceptions taken by the appellant to the reception of evidence offered by the plaintiff have been examined, so far as our attention has been called to them by the brief of counsel, and we find no error. Judgment reversed, and new trial granted before another referee, unless the plaintiff stipulates within 30 days to deduct from the judgment the amount of the Bleatiora B. Grant note and interest; and, if such stipulation is served, then the judgment, as modified, is affirmed,, without costs of this appeal to either party. All concur.  