Peoples National Bank v. Dixwell

Hammond, J.

The paper purported to be the note of the New England Home for Deaf Mutes, Aged, Blind or Infirm, and *437 to be executed in the name of the maker by the defendants. Had the defendants been duly authorized the note would have been that of the corporation. But the declaration asserts that they were not thus authorized. It was therefore neither the note of the alleged principal nor that of the alleged agents, and no action is maintainable thereon as a note against either party, — not against the principal because not its note in fact, and not against the agents because it does not purport to be their note. Long v. Colburn, 11 Mass. 97. Conant v. Alvord, 166 Mass. 311, and eases there cited. Whatever may be the rule elsewhere (see Dusenbury v. Ellis, 3 Johns. Cas. 70), it is settled in this Commonwealth that “if the instrument purports to express the contract of the principal, the agent is not personally liable on it, but that the remedy in such a case against him is by an action upon the case for falsely representing himself to be authorized to bind his principal. Jefts v. York, 4 Cush. 371. Ballou v. Talbot, 16 Mass. 461.”. Hoar, J., in Dragger v. Massachusetts Steam Heating Co. 5 Allen, 338. And the nature of this liability is stated by Shaw, C. J., in Jefts v. York, 10 Cush. 392, 395, as follows: “If one falsely represents that he has an authority, by which another, relying on the representation, is misled, he is liable; and by acting as agent for another, when he is not, though he thinks he is, he tacitly and impliedly represents himself authorized without knowing the fact to be true, it is in the nature of a false warranty, and he is liable. But in both cases his liability is founded on the ground of deceit, and the remedy is by action of tort. Smout v. Ilbery, 10 M. & W. 1. Jenkins v. Hutchinson, 13 Ad. & El. (N. S.) 744.” Under the allegations of the declaration there can be no doubt that under the well settled law of this Commonwealth the defendants made themselves liable to such an action.

It is urged, however, by the defendants that, even if that be so, the liability is to Mitchell alone, the payee of the note, and that the right to enforce it has not been and cannot be assigned by him. But the representations are made in the document itself, which upon its face is negotiable in form. It is to be assumed that the defendants contemplated that it might pass into the hands of parties taking the same in reliance upon the statements, therein contained, and that the defendants intended that in such a case the statements should stand as made to any rightful holder; or in *438 other words that the statements are to be regarded as continuous. Roberts v. Anheuser Busch Brewing Association, 211 Mass. 449, and cases there cited. The plaintiff appears by the declaration to be such a holder, and as such one of the persons to whom the representations were made.

Demurrer overruled; case to stand for trial.