Burlingame v. Brewster

Mr. Justice Scholfield delivered the opinion of the Court:

Suit was brought against the appellant, Burlingame, alone, on a promissory note, of which the following is a copy:

“Earlville, III., Jan. 1, 1871.

“One year after date I promise to pay Joseph Brewster, or order, the sum of four hundred and sixty 70-100 dollars, at the office of the Exchange Bank, Earlville, 111., with ten per cent interest from date, until paid.

“C. C. Warren,

“Thomas Pendieu,

(Signed.) “Chas. M. Smith,

“A. C. Burlingame.”

Defense was interposed bv pleas filed for that purpose, setting up, in substance, that the consideration of the note was building material purchased by the signers of the note as trustees of the First Universalist Society of Earlville ; that after the note was signed by Warren, Pendieu and Smith, they appended, below their signatures, leaving a blank for appellant’s signature, the words, “as trustees of First Universalist Society,” and in this condition placed the note in the hands of appellee, to obtain appellant’s signature ; that appellee fraudulently, etc., and without informing appellant thereof, tore from the note the words “as trustees of the First Universalist Society,” before presenting the same to appellant for his signature. Demurrer was sustained to the pleas, and the question is whether the defense should have been allowed.

■There being no pretense that the note has been altered or changed since appellant’s signature was affixed to it, the only inquiry is, did the tearing of the words “as trustees of First Universalist Society of Earlville” from the note, materially change or alter it, so as to discharge the previous signers from liability on it? If it did, it is evident that appellant’s liability is affected, for lie signed upon the assumption of the co-liability of these parties; if it did not, he is unaffected by the alteration, and the defense was properly disallowed.

The body of the note shows a personal undertaking. Its language is, “I promise to pay,” etc., which is inconsistent with the idea of corporate liability ; and while the words torn from the note, following the signatures, would show that it was as trustees they were induced to make the note, they do not show any attempt, by words usually deemed apt for that purpose, to bind the corporation. Such notes have been repeatedly held to be the mere personal undertaking of the signers. Hills v. Bannister, 8 Cowen, 31; Eaton v. Bell, 5 Barn. & Adolphus, 34; Sturdivant v. Hall, 59 Me. 172 ; Barlow v. Congregational Society in Lee, 8 Allen, 460 ; Andrews v. Estes, 11 Me. 270 ; Slawson v. Loving, 5 Allen, 342 ; Draper v. Mass. Steam Heating Co. 5 Allen, 338 .

Our conclusion is, that the alleged alteration of the note in nowise affected the liability of any of the signers to it, and that there was no error in the ruling of the court below.

The judgment is affirmed.

Judgment affirmed.

Mr. Chief Justice Scott, and Mr. Justice Sheldon, dissenting.