Hicks r. Hinde.

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, without 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 he 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. v. Dayton, Id. 554, 548. Bank of Columbia v. Patterson, 7 Cranch, 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 instru ment 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 VOL. IX.

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Hicks v. Hinde.

order, and indorsed by him "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, viz. that 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 not 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 Lond. 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 liabil

Hicks v. Hinde.

ity 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 flow 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 which admit of precise and definite application by resorting to the circumstances under which 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 Story v. Logan, (9 Mass. Rep. 55,) being an action by the payee against the drawee of a bill of exchange, parol evidence was received of verbal conditions and restrictions, subject to which 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 Mech. 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 without 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 drawing of the draft by Hinde is restrictive; and that

Gilbert v. Gilbert.

the addition of the word agent was, as was held in Mott v. Hicks, equivalent to a declaration that he would not be 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 Kent's 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.

CLINTON SPECIAL TERM, October, 1850. Hand, Justice.

GILBERT VS. GILBERT and others.

G. being seised in fee of a lot of land, made his will, devising the same to the plaintiff, his wife. Subsequently, and before his death, he disposed of the lot to H., receiving, as a part of the consideration, other lands. The plaintiff joined in the conveyance of the lot to H., she as well as the testator, being assured by the person who drew the deeds, and believing, that the exchange of farms would not alter the will, or affect the devise to the plaintiff, except to give her the land received in exchange, in lieu of the lot devised to her. The testator afterwards died, without having altered his will; leaving no real estate, except the lands received by him from H. in exchange for the lot conveyed to the latter. On a bill in equity, filed by the plaintiff against the heirs at law of the testator, praying that she might

Gilbert v. Gilbert.

be declared entitled under the will, to all the land of which the testator died seised; Held, that the court had no power to correct the mistake of the testator as to the effect of the conveyance of the lot to H., it being a mistake of law; and the bill was dismissed.

IN EQUITY. The bill in this cause was filed in 1845. Dwight Gilbert married Laura Gilbert, the plaintiff, in 1815. On the 24th of September, 1836, Dwight was seised in fee of lot No. 31, Dean's patent, containing 200 acres. At that time he made his will, and gave a few legacies; to his brother James, all his wearing apparel; and said lot No 31 and his household furniture, &c. and all his other personal property, including certain notes, cash, &c. to the plaintiff. The will was published on the 24th of September, 1836. On the 17th of April, 1837, he disposed of lot No. 31, to Lucius Heaton. Heaton was to take D. Gilbert's farm at $2040, and of that amount, by an arrangement between the parties, to pay one Hubbell $300, one Denton $820, and one White $920. White conveyed to D. Gilbert 101 acres, for the consideration of $1290; Denton, 37 acres, for $820, and D. Gilbert received only $12 in money, over and above paying for these two parcels. A witness testified that the testator assured the plaintiff that this transfer and purchase would make no difference, and he would make another will if necessary, and also proposed to have it conveyed directly to her; that he intended to will her all his real estate. And the person who drew the deeds, who was not a lawyer, assured both D. Gilbert and the plaintiff, who applied to him for advice, that this was a mere exchange of farms, and would not alter the will or affect her rights under it. The plaintiff alledged that upon these assurances, D. Gilbert conveyed lot No. 31 to Heaton, and she released her right of dower therein. D. Gilbert died in 1842, without children, and without altering his will. He had no real estate at the time of his death, except the lands conveyed to him by White and Denton, of which he left the plaintiff in possession; he having taken possession on the 17th of April, 1837. The bill was filed against the heirs at law of the testator, and prayed that the plaintiff might be declared entitled, under the will, to