Rogers v. Coit — 6 Hill & Den. 322

Majority

p. 322

Rogers vs. Coit and others.

Headnote

The agent of a company, with the assent of his principals, and in order to discharge their debt, drew a bill of exchange in his own name on a part of them, payable to the creditor, which, after being accepted, was endorsed and delivered to a third person, who brought an action against all the members of the company to recover the amount. Held, that there was no privity between them and the plaintiff, and that action was not maintainable either upon the bill itself or the original consideration.

Otherwise, had it clearly appeared that the name in which the bill was either drawn or accepted was one of those by which the company allowed themselves to be known and represented. Ptr Cowen, J.

Assumpsit, tried at the Monroe circuit in February, 1843, before Dayton, C. Judge. The action was brought against the same persons who were defendants in Allen v. Coit and others, (ante, p. 318;) and the two cases were substantially

p. 323

alike, except as to the following particulars. In the present case, the plaintiff sought to recover, under the common counts, the amount of two hills of exchange drawn by Griffith & Fish, on G. P. Griffith & Co., and payable to the order of W. T. Battle. The bills were drawn by Griffith <fc Fish as agents for the New-York and Erie Line, in order to pay Battle the purchase money of certain stock sold by him to the line. After the bills were accepted by the drawees, Battle endorsed and delivered them to the plaintiff. The circuit judge ordered a non-suit, and the plaintiff now moved for a new trial on a bill of exceptions.

F. M. Haight, for the plaintiff.

H K. Smith, for the defendants.

The want of privity between the defendants and the plaintiff, makes a difference between this case and that of Allen v. Coit and others, (ante, p. 318,) which the judge properly considered as fatal to the present action. There is no pretence for saying that the defendants were parties to the bills, though they may have been considered as parties to the sale of stock for which they were drawn; and so liable to Battle in an action to recover for stock sold. The defendants were neither members of the firm of W. P. Griffith & Co., the acceptors, nor that of Griffith & Fish, the drawers, who alone could be sued as parties.

It is indeed true, as insisted by the counsel for the plaintiff, that the defendants might bind themselves by what'name they pleased; that they might do one part of their business in the name of the Troy and Erie Line, and the other in the name of the Griffith firms. (Bank of South Carolina v. Case, 8 Barn. Cress. 427.)^[1] But there is no evidence that they were ever represented by those firms in any thing. They were agency firms; and the giving of their bills, we have just seen, would

(a) (a) See also Ex parte Bolitho, (1 Buck’s Cas. 100,) S. P.

p. 324

not preclude the creditor who made advances on them from passing hy the bills and suing the principals. The evidence, however, calculated to establish that right, comes altogether short of showing that the Troy and Erie Line ever intended to hold themselves out as dealers under the name and firm of G. P. Griffith & Co.,, or Griffith & Fish. To subject them on such a signature, clear evidence should be given that they had adopted those names and intended to be bound by them. All the evidence in the case is susceptible of another and a more natural construction. The judge was right in acting upon that construction ; and a new trial is therefore denied.

New trial denied.