Shoe & Leather National Bank v. Dix

Ames, J.

The question whether the defendants have made themselves personally responsible must be determined by the terms of the note itself. In determining the proper interpretation of any written contract, the court will give full effect to all the terms in which it is expressed. Those terms will not be *150 modified by extrinsic evidence tending to show that the real intention of the parties was something different fimn what the language imports. They will be taken in their plain, ordinary and popular sense, except where it may be qualified by some special usage, or where the context evidently shows that the parties in some particular case had a different intent. It is no part of the business of the court to make or alter a contract for the parties. Even if it be found that the contract, according to its true meaning, has no legal validity, or fails to become operative, it is not for the court, in order to give it operation, to suppose a meaning which the parties have not expressed, and which it is certain they did not entertain. It must be assumed that all the language used in the contract was selected with some purpose and is to be of some effect. If a party, therefore, in a contract into which he voluntarily enters, and not in the execution of any official trust or duty, makes it an express stipulation that he is acting for somebody else, and is in no event to be personally liable, he certainly cannot be rendered so by law. Sedgwick, J., in Sumner v. Williams, 8 Mass. 162, 184 . In a question as to the meaning of á contract, the want of apt words to create a personal responsibility is not to be supplied by the alteration or enlargement of its terms.

In applying these familiar and elementary rules of construction to the case now before us, we find that the defendants promised “ as trustees but not individually.” The construction contended for by the plaintiffs would require us to strike out the words “ but not individually; ” although in so doing we should not only alter the contract, but should impose upon them a liability which apparently they took special pains to avoid.

It is to be borne in mind that this was not a case of agents acting for an undisclosed or unknown principal, and is, therefore, readily distinguishable from Winsor v. Griggs, 5 Cush. 210 , and cases of that class. Neither was it an attempt by the defendants to bind property over which they had no legal control. By the terms of the deed they had 'power to mortgage, lease and manage the property at their discretion, but for the benefit and on the account of the equitable owners, namely, the members of the Brookline Avenue Association. In this respect the case dif fers from Thacher v. Dinsmore, 5 Mass. 299 , Forster v Fuller *151 6 Mass. 58 , and other eases of that class, in which a party promising “ as guardian,” &c., was held to have made himself personally liable.

Neither can it be said that the term “ trustees ” was used as “ a mere description of the general relation or office which the person signing the paper holds to another person or to a corporation, without indicating that the particular signature is made in the execution of the office and agency.” In this respect the case differs from Tucker Manuf. Co. v. Fairbanks, 98 Mass. 101 . It often has happened that an agent for another person, or the treasurer of a corporation, has made himself personally responsible, by the form of words in which he has expressed himself in a written contract, when he may have intended to bind his principal only. Cases in which this question has been raised have often been before this and other courts, and the authorities have recently been collected and reviewed in several of our own decisions. See Slawson v. Loring, 5 Allen, 340 ; Barlow v. Lee Congregational Society, 8 Allen, 460 ; Tucker Manuf. Co. v. Fairbanks, ubi supra. But we believe no case can be found in which a promise “ as trustee,” &c., accompanied with an express disclaimer of personal liability, would fail to exempt him.

It is contended that if these defendants are not liable upon the contract as a note, then nobody is liable. Even if such were the fact, it would not be in the power of the court, as we have already seen, to alter the contract for the purpose of giving it validity. In deciding whether the defendants have or have not bound themselves, we need not decide whether they have or have not bound their principals. Abbey v. Chase, 6 Cush. 54 . But, even if the written contract should fail of taking effect as a negotiable note, it might still be operative as an acknowledgment of unpaid debt, which the mortgage was intended to secure. It may be that this was all that the original parties intended, or supposed to be material. They may have considered the mortgage sufficient security, without the personal responsibility of the trustees.

Our conclusion therefore is that, without proof that the defendants, as trustees, have funds of the association in their hands applicable to this debt, no action can be maintained against them. No evidence to that effect having been offered, we must Vrder Judgment for the defendants.