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duly authorized agent. No particular form of appointment is necessary for this purpose; and the authority of the agent may be established as in other cases of agency.
Sec. 20. Where the instrument contains or a person adds to his signature words indicating that he signs for or on behalf of a principal, or in a representative capacity, he is not liable on the instrument if he was 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.
These sections have not changed the law as above set forth, but merely codify it (69).
$ 32. Certainty of parties: Payee.
“Where the instrument is payable to order, the payee must be named or otherwise indicated therein with reasonable certainty” (70).
Thus, the following paper was held not to be a check, no payee being named: “Lansing State Savings Bank of Lansing. Pay to the order of ........... $970. (Sgd.) John R. Gordon" (71). And an instrument in the form of a note payable to “Charles R. Whitesell and others or order”' is not a note because the payees are not certain (72).
If the payee is designated in the instrument, the mode
of designation, if reasonably certain, is immaterial. Thus, the payee may be described by a name other than his usual name or his trade name. In Willis v. Barrett (73), Elizabeth Willis was allowed to recover as payee on a note payable to Elizabeth Willison, upon proof that she was the person described by the name on its face. And an instrument in the form of a note payable to “F. B. Bridgman's estate” was held to be a note sufficiently designating Bridgman's executor as payee (74). Upon the same principle a bill or note payable to“X, cashier' is presumably payable, not to X, but to the bank of which X is cashier. Business usage makes the words “X, cashier” mean the bank of which he is an officer (75). The same rule of interpretation is applied to a note payable to any fiscal officer of a bank or corporation. The N. I. L. says:
Sec. 42. Where an instrument is drawn or indorsed to a person as “Cashier” or other fiscal officer of a bank or corporation, it is deemed prima facie to be payable to the bank or corporation of which he is such officer, and may be negotiated by either the indorsement of the bank or corporation, or the indorsement of the officer.
§ 33. Fictitious payees. Suppose, however, the name used in a note is not intended by the maker to designate any person bearing that name, or any other person, but that the maker intends to indorse and issue the note himself. Such a note might well be treated as payable to him
(73) 2 Starkie, 29.
self by the fictitious name, but the law seems to be that such a note, when indorsed by the maker, is treated as payable to bearer. The rule is thus stated in Sec. 9, subd. 3 of the N. I. L.:
“The instrument is payable to bearer
when it is payable to the order of a fictitious or non-existing person, and such fact was known to the person making it so payable."
The reason for the rule very clearly appears to be that if the instrument were treated as payable to order, its indorsement and transfer by the maker, who is not named as payee, would not pass title to the instrument, and the transferee would get no rights on the instrument. Thus the maker by transferring the note would be perpetrating a fraud upon the transferee. To avoid this result the instrument is treated as payable to bearer. If the maker supposed that the name in the note designated a particular individual, and intended it to be payable to the person whom he supposed he had designated, but in fact the name did not designate any particular individual, the note is not payable to bearer, and the maker is not liable on the note, if it is negotiated. For example, in Minet v. Gibson (76), Livesey & Co. drew a bill of exchange on defendant payable to “J. White.” The defendant accepted the bill. “J. White" was not intended to designate any person, and this was known to the defendants. Livesey & Co. then indorsed the bill to the plaintiffs. It was held that the defendants were liable on the bill. It was no defense that
(76) 3 Term Rep. 481.
the bill had not been indorsed by"J. White," because the acceptor knew that “J. White" was, as the N. I. L. says, “a fictitious or non-existing person.” In Shipman v. Bank (77) the plaintiff's clerk prepared checks payable to a name which was not intended by the clerk to designate any person, but the plaintiff when he signed them supposed there was a person designated by the name. The clerk indorsed the name on the checks and they were paid by the defendant bank out of plaintiff's account. It was held that the plaintiff could recover the amount of the checks from the bank. The plaintiff did not know that the payee “was a fictitious or non-existing person.”
§ 34. Alternative payees. Before the enactment of the Negotiable Instruments Law it was held that an instrument payable to “A or B, or order” was not a bill or note, an uncertainty as to the payee existing because of the option of the maker or acceptor to pay either one or the other. But the N. I. L. provides that a bill or note may be payable to“One or some of several payees” (78). Of course, there would be no objection to an instrument payable to several jointly, as to A, B, and C, because here the payee of the obligation is the group as a unit (79).
$ 35. Successive holders of office as payees. An instrument payable to “A, executor of B's estate and his successors, or to “ A, treasurer of the B corporation and his successors" is negotiable. Although it may be uncertain who will be the holder of the office when the instrument becomes payable, there can not be more than one
(77) 126 N. Y. 318.
person at any given time who is payee of the instrument, and the paper describes him with reasonable certainty. Accordingly the N. I. L. (80) provides that a bill or note may be payable to “the holder of an office for the time being.” This sub-section, however, does not apply to instruments payable to the officers of unincorporated associations, for in such associations there are no “offices." In consequence, an instrument payable to “A, treasurer of X Society (unincorporated] or his successors,” must be treated either as payable to A, the words "treasurer," etc., being disregarded, in which event it is a valid negotiable instrument (81); or as payable to whomever happens to be the treasurer at the time of payment, in which event it is uncertain as to payee, and so not a bill or note (82). The former construction seems the more reasonable.
$36. Certainty of parties: Drawee. A bill is an order “addressed by one person to another” (83). “A bill may be addressed to two or more drawees jointly, whether they are partners or not; but not to two or more drawees in the alternative or in succession” (84). “Where the instrument is addressed to a drawee, he must be named or otherwise indicated therein with reasonable certainty" (85).
(80) Sec. 8 (6).