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the debts referred to. It is therefore a guar- , sonæ, they will be given their proper force and anty within the meaning of the law. As to effect.” 31 Cyc. 1415. what constituted a guaranty, see 5 Elliott on In Avery v. Doughtery, 102 Ind. 443, 2 N. Contracts, 8 3930; 20 Cyc. 1397; 1 Brandt, E. 123, 52 Am. Rep. 680, a lease contract reSuretyship & Guaranty, § 1; Pingree on citing in the introductory clause that the Suretyship & Guaranty (2d Ed.) § 339; and agreement was between “Randolph Marshall, cases cited under title "Guaranty" at sec- agent of Oliver Doughtery," and signed tion 1, 25 Century Digest.

| “Randolph V. Marshall, agent of O. R. DoughThe obligation involved in the case at bar tery," was held not subject to the rule of dewas written upon stationery bearing the scriptio personæ, because: printed letter head of the Citizens' National "While accepting the general rule to be that Bank of Portales, wherein appeared the stated, the American authorities agree that, if names of the officers thereof, including that

the contract itself shows that the words were

not used as merely descriptive of the person, of "J. P. Stone, President. The writing they will not be so regarded, but will be aswas signed by J. P. Stone, to which was add- signed their real meaning." ed the word “President.” Because of this

See, also, other cases cited under text method of execution appellants assert that in 31 Cyc. 1415. The contract involved in the obligation is prima facie that of J. P. this case cannot be held to be the prima Stone. Where a writing in the nature of

facie personal obligation of Stone. An ina contract is signed by a person, and con

spection of the writing makes this manifestly tains apt words to bind him personally, the

apparent. It discloses the utmost informality fact that to such signature is added such on the part of the maker thereoi. The perwords as “trustee," "agent,” “treasurer,” | sonal pronoun "I" is used therein more than "president," and the like does not change ten times, and without doubt refers in each the character of the person so signing, but instance to J. P. Stone, the author of the is considered as merely descriptive of him. writing. The pronoun "me," referring to For a statement of the rule of descriptio Stone, is used several times, as is the perpersonæ see 1 Mechem on Agency (20 Ed.) 88 sonal pronoun "our." The important sen1170, 1408, 1419; 1 Amer. & Eng. Enc. Law tence of the writing is: “Of course, we will (2d Ed.) 1043; 31 Cyc. 1414; 2 C. J. 683. be responsible to you for any loans that I The mere fact that a person sustains an might send you." The objective of the proagency relation to another does not prevent noun "we" is not specifically made known him from becoming personally liable on a in the writing. However, the writing discontract with a third person, and, if it ap-closes a strong probability that the Citizens' pears from the contract that he pledged his National Bank of Portales alone was intend. own credit or bound himself personally, the ed by such language. In several portions addition of such words as “president" and of the letter reference is made to that instituthe like will be considered as mere descriptio tion by using the word "our,” and in no inpersonæ. 2 Clark & Skyles on Agency, 1123. stance does the writer refer to himself as Thus a contract providing that A. guarantees an individual in the plural sense. Because the payment of a certain note of a third per- of the great uncertainty, however, of the real son and signed "A., Agent," would be sub- and true identity of the object of such project to the rule of descriptio personæ, and noun, and because of the fact that we feel the obligation would be prima facie that of that we cannot attach to such sentence any A., notwithstanding the addition of the word sound judicial certainty, because of the am“Agent." But a hypothetical statement of biguity resulting from the use of the word fact

where the rule would not apply would | when considered in conjunction with the be where the contract provided that A., by

entire writing, we hesitate to declare that

the writing on its face discloses an intention his agent, B., guarantees the payment of the

to bind one other than J. P. Stone personally, foregoing note, signed "B., Agent," because

and prefer to hold that resort must be had not only are there no apt words within the

to matter aliunde the body of the instrument body of the writing to bind the agent per

in order to arrive at the true intention of sonally, but the evident intention was to bind

the parties. The only justification for rethe principal. It is thus apparent that that

ferring to the Citizens' National Bank of portion of the rule which requires that be- Portales at all lies in the fact that the writfore the contract can be adjudged to be the ing is upon stationery bearing the letter head prima facie obligation of one signing his own of that institution. name thereto, and adding descriptive words, [3] 3. In the course of their argument the the body of the contract must contain apt appellants contend that the printed letter words to bind the signer personally, and this head is no part of the contract, and that seems consonant to all reason and common reference thereto cannot be made for pur sense.

poses of construing it, because of the incon. [2] 2. The application of the rule of de- sistency between the written and printed scriptio personæ is also subject to the rule portions thereof. The rule is invoked upon that:

the theory that the written portion of the "Where the instrument on its face shows contract is inconsistent with the letter head. that such words are not simply descriptio per- which, as we have shown, is not the case, At least, in the absence of explanation as , bank or for himself, but must say that the to the meaning of the pronoun "we," the instrument and the meaning of the parties written portion cannot be said to provide for to be gathered therefrom are too uncertain the personal liability of Stone; hence, admit- to declare liability either way; hence reting that the printed letter head is some sort must be had to evidence aliunde the in. evidence on the subject, the rule is not ap- strument to ascertain the true intention of plicable. The appellant cites a number of the parties. cases sustaining the rule, with which cases we In 1 Mechem on Agency (2d Ed.) § 1176, do not quarrel. One of them is that of R. G. it is said: Menz Lbr. Co. v. McNeeley, 58 Wash. 223, 108 “* * Where the contract is so framed as Pac. 621. 28 L. R. A. (N. S.) 1007. There to render it uncertain whether the agent or the

principal was intended to be bound, parol eviappellant sued to recover damages for fail

dence may be received to show that it was the ure to deliver lumber and shingles according intention to bind the principal, and not the to contract. The acceptance of the order agent." for such materials was written upon sta. The text is supported by several cases, tionery bearing the letter head of the ac- l among them being Mechanics' Bank of Alexceptor and other matter concerning its busi- andria v. Bank of Columbia. 5 Wheat. 326. ness, including the following:

5 L. Ed. 100, where the court said: "Quotations subject to change without notice. “But it is enough for the purposes of the deContracts made at home office and contingent fendant to establish that there existed on the upon exigencies of transportation and accidents | face of the paper circumstances from which it beyond our control."

might reasonably be inferred that it was either The written portion of the acceptance was one or the other (meaning either a bank or inabsolute, and no reference was made therein

dividual transaction). In that case it became

| indispensable to resort to extrinsic evidence to to the printed conditions contained within

remove the doubt." the letter head. Manifestly the rule applied to that sort of a case, but is not applicable

In Eddy V. American Amusement Co., 9 to this case. In 4 Elliott on Contracts, sl

Cal. App. 624, 99 Pac. 1115, the court said: 2837, it is said:

"The rule is well settled that, where a reading

of a simple contract, however inartificially it "But a simple contract may be ambiguous as may be drawn, discloses that it is executed for to the real parties. When it is so the court will and on behalf of a principal, or discloses an insolve the ambiguity, if possible, from the instru tent to bind such principal, or even leaves the ment itself, taking into consideration not only matter one of doubt, parol evidence may be emthe words and figures in the body thereof, and ployed to determine whose contract it the signatures and additions thereto, but any is. printed or written headings, memoranda in the margin, or other indicia which may serve to

In Southern Badge Co. v. Smith (Tex. Civ. throw light upon the question of intention. | App.) 141 S. W. 185, 188, the court said:

See, also, section 2841 of the same volume "If, however, the suggestions furnished by the and work, and the following cases: Ander- instrument render it ambiguous, so that it is

uncertain whether it was intended to bind the son v. English, 105 App. Div. 400, 94 N. Y.

. principal or the agent, or both. parol evidence of Supp. 200, 202; Second National Bank v. the circumstances attending its execution is adMidland Steel Co., 155 Ind. 581, 58 N. E. missible to show the real understanding.'” 833, 52 L. R. A. 307; Sayre v. Nichols, 7 See, also, 4 Elliott on Contracts, $ 2837, and Cal. 535, 68 Am. Dec. 280; Hitchcock v. Small v. Elliott, 12 S. D. 570, 82 N. W. 92, Buchanan, 105 U. S. 416, 26 L. Ed. 1078; 1 76 Am. St. Rep. 630. Gillig Matt Co. v. Lake Bigler Road Co., 2 This is precisely the version of the law Nev, 214, and Carpenter v. Farnsworth, 106 taken by the trial court. It received parol Mass, 561, 8 Am. Dec. 360.

evidence in order to determine whether the In the case last cited the court said that: intention of the parties was to bind the prin"The court has always laid hold of any indi- ' cipal, the bank, or the signer, Stone, individcation on the face of the paper, however informally expressed, to enable it to carry out

ually. It found that there was a conflict of the intentions of the parties."

evidence on the question, and seemingly indiWe are therefore justified in looking to the cated tha

cated that in reality Stone intended to bind letter head as a fact to be considered in de

the bank, while appellants intended that termining the identity of the guarantor, or

Stone should be bound; hence an apparent the intention of the parties with reference failure of meeting of minds. But it resolved thereto. While the letter head makes known the conflict in favor of the representatives of that J. P. Stone was president of the Citi. | Stone, holding, in effect, that there was subzens' National Bank of Portales, it does not stantial evidence to indicate that the writestablish, either conclusively or otherwise, ing was not intended to bind Stone personthat Stone was acting as president of that ally. Appellants do not contend that there bank in this transaction. While the infer- is no substantial evidence to support that ence arising from such fact may strongly finding. As a matter of fact, they made no tend to support the conclusion that he was objection to that finding, or its equivalent. acting for that institution in this transac- We therefore hold that the trial court did tion, it is too doubtful to permit of sound not err in decreeing that the instrument injudicial construction to that effect.

volved in this case was not the personal obli. [4] 4. Looking to the entire instrument, we gation of Stone.

court should have found that the writing, legally binding on either or both in order that bound Stone personally, because, assuming the agent may escape personal liability therethat Stone executed the instrument for and on. When the agent proves agency-his right on behalf of the Citizens' National Bank of to act as agent for another and the fact that Portales, the bank had no power to enter into he did so act in conformity with the intention such a contract, and, the obligation having of the parties-he has gone as far as he need been put out as binding on some one, Stone go in the ordinary case. Because the princishould be held. In other words, we are asked pal had no power to make such a contract, to hold that Stone must be bound because his which is a matter of public law in this case, principal had no power to enter into such a sis no reason for holding the agent liable on contract, notwithstanding that the contract the contract. It is unnecessary to discuss the has been held to negative any personal lia liability of the agent under given circumbility on the part of Stone. It should be said stances independent of the contract. It is here that, while appellants, in making this enough to say that the court is in no position contention, assume that the bank was the to make a contract for the parties which the principal and that the contract was that of writing and evidence disclose they never inthe bank, we do not so find. The bank is not tended to make for themselves. a party to this suit, and nothing said in this "Where the difficulty is that, thougb there is · opinion shall be construed as determining its a principal in existence, that principal does not liability on the writing in any sense. But be conferred upon the agent, a different ques

| possess the power which has been attempted to assuming, as do appellants, that the obliga- tion arises. The typical case is that of acts done tion was intended to bind the bank and was by corporate officers or agents in behalf of the executed for it through the agency of Stone,

corporation but which are really ultra vires of

the corporation. Where the corporation derives should Stone be held personally liable there- its power from some public act or law with on? There are cases in which he would be which everybody is presumably familiar, and so held. Much reliance is placed upon the

the agent has done no more than attempt to

exercise in a corporate capacity a power supcase of Knickerbocker v. Wilcox, 83 Mich. | posed to be conferred by the act or law, no per200, 47 N. W. 123, 21 Am. St. Rep. 595. In sonally liability should ensue. He ought not to that case Wilcox, cashier of a national bank be held to warrant by implication that which

is mere matter of law and as much within the by letter requested another bank to execute,

se, knowledge of one party as the other." 1 Mechas surety, a bond for one of "our" customers. em on Agency (2d Ed.) § 1386. The letter was signed by Wilcox, to which In Thilmany v. Iowa Paper Bag Co., 108 was added the word "Cashier.” The court Iowa, 357, 79 N, W. 261, 75 Am. St. Rep. 259, held that the paper upon its face showed 261, the several distinctions concerning when that it was a transaction in which a national and when not the agent shall be held to have bank could not lawfully engage; that the become personally liable are discussed. It is writing of the letter would not lightly be as an interesting case, and perhaps a leading one sumed to have been a mere idle ceremony, on the subject. It is unnecessary to quote but that the parties intended that it should from it at length. In part the court said: have some effect; that the rule that the writ. “The action is not, then, based upon any mising was not binding on the agent personally, representation as to his authority, but upon the Wilcox, because of a mutual mistake of law invalidity of the contract itself as between plain

tiff and the bank. There was no actionable deconcerning the power of the principal, the

ceit, for the plaintiff is presumed to know as bank, was not applicable because it did not much about the powers of national banks as clearly appear that Wilcox was claiming to the defendant. There is, as we have said, no act for the bank and was not intending to

implied warranty * * * that his principal

has authority to make the contract. As a rule, bind himself. The court thereupon held that

that is a question of law, of which each party the prima facie presumption of personal lia has equal knowledge. In the case against the bility flowing from the writing had not been bank we held that national banks have no au

thority to enter such contracts, and, as the rebutted by Wilcox, and held that he was

plaintiff has no right of action against the bank personally liable thereon. Other cases cited

| uron a contract of guaranty such as the one in by appellants are equally distinguishable suit, no recovery should be permitted against the

agent; for this would hold every agent to a warfrom the one at bar. But the rule for which

ranty of legality of his principal's contracts. appellants contend, under the facts of this | As we have seen, this is not the obligation of case, is unsound in reason. If the writing the agent. The second reason sometimes given

for the general rule of liability of the agent does executed by an agent for his principal is not

not appear to us to be sound. By the applicaof binding force between the principal and tion of this principle a new contract is made the third person, and does not contain apt for the parties. An engagement is created which

the parties did not intend to assume, and the terms to bind the agent personally, or was decided weight of authority is against such never intended to bind him personally, we rule--citing cases." see no good reason for decreeing that the The second reason for the rule, to which agent should be bound, and thereby make a the court in the last-cited case alludes, is contract for the parties. The agent, when that the law assumes that the contract was acting within the scope of his authority, is intended to bind some one, and, if the princithe mere mouthpiece of his principal. It is pal is not bound, the contract must be that not indispensable that the contract between of the agent, which is the argument of apthe principal and a third person should be pellants as we understand it, and which is

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very well answered by the court in the case proposition that if Stone is to be absolved last mentioned.

| of all personal liability in the premises [6] 6. The last question called to our no- through alleged agency existing between him tice is that Stone treated the writing as his and the Citizens' National Bank of Portales own personal obligation by act and conduct, | it was necessary that agency should be propand therefore it should be held to bind him erly alleged, and the liability of the principersonally. It is claimed that both the par-pal disclosed. In the opinion in this case ties to this contract, Stone and Shriver, con

we observed that the question of the bank's I the writing as the personal obligation | liability was not involved in this case, be of Stone, and that their actions all denote

cause we took the view that the appellee dethat view of it, and therefore Stone must

nied personal liability under the guaranty on be held. In Fraser V. Bank, 18 N. M. 340,

the part of testator, J. P. Stone, and that, 357, 137 Pac. 592, it was held that the court

together with the fact that the bank was would not place a different construction upon

not a party to this suit, made the question the contract than that given it by the parties, after rights had accrued thereunder and

of the bank's liability entirely immaterial to when such a construction would plainly be

this case. In paragraph 2 of the complaint at variance with the understanding of the

it was alleged, among other things, that parties to it. See, also, 5 Elliott on Con- Stone executed the letter of guaranty, and tracts, $ 3941. The rule is not applicable "in said letter guaranteed that be, the said to this case. The parties to this writing were Stone, would be personally liable and renever in harmony as to its construction. sponsible to the said Shriver for said proNeither treated it alike, so far as the evi- posed loans and liable for the due payment dence indicates the fact. There is evidence thereof. * * *" The answer of appellee tending to show that appellant Shriver ac- alleged that in the execution of said guarknowledged that the writing was binding on anty Stone was acting solely for the bank, or the bank, and not on Stone. The conduct of rather as its president, and "denies that in Stone throughout the life of the contract did said letter the said James P. Stone guarannot exhibit an acquiescence of personal lia- teed that he would be personally liable and bility. The trial court expressly negatives responsible to the said Shriver for said prothe idea that the parties adopted any uni- | posed loan, and denies that he guaranteed form construction of the contract by saying, that he would be liable for the due payment in effect, that neither party treated the con- thereof, according to the effect and tenor of tract in the same way.

said promissory notes, or in any manner.” [7] 7. Appellants contend that the court! It will thus be seen that, while appellee erred in declining to decide the case upon attempted to evade liability on the ground the pleadings and proof. The point made by that an agency existed between J. P. Stone appellant is that the court in its findings re and the bank, she also specifically denied any ferred to the decision of another trial judge personal liability on her part as administraon a demurrer filed in the case, and declared trix under the letter of guaranty, not essenthat he felt bound by that decision, which tially because Stone was acting as an agent was to the effect that the writing, standing of the bank, but because the writing did not alone, was not the prima facie personal obli- bind Stone. The answer, therefore, cannot gation of Stone. We see no cause for com- be said to be insufficient as stating a deplaint on appellant's part. The court de- fense. It denied what was alleged in the termined all the issues between the parties complaint, and cast upon the appellants the as made by the pleadings and proof, and burden of proving that the letter of guaranthere is no foundation upon which to base the ty constituted a personal contract on the claim they now make.

| part of James P. Stone. In conclusion it might be said that most | 2. The second point made by appellants is of the questions decided by the court in this

that there is no evidence to show that Stone opinion might well be disposed of on techni.

| intended to bind the Citizens' National Bank cal grounds of practice, but we have pre-l of Portales by the letter of guaranty. We ferred to treat them on their merits.

have held that the letter of guaranty is amNo error appearing in the record, the judg

biguous as to who was intended to be bound ment of the trial court will be aflirmed; and

thereby. While we made reference to the it is so ordered.

| fact stated by appellant that perhaps the ROBERTS, C. J., and PARKER, J., concur,

writing was intended to bind the bank, bav

ing been executed by one of its officers, we On Motion for Rehearing.

expressly said that we did not so find, but HANNA. J. 1. Appellants, in their mo- that the writing was of such a character that tion for a rehearing, attack the soundness of resort must be had to proof aliunde the the court's opinion in this case, in three dis writing to determine the fact. It is entirely tinct respects. The first point made is that immaterial that there is no proof sufficient the answer of appellee fails to state facts to show that the bank was intended to be sufficient to constitute a defense, and the ar- | bound by the instrument, for the finding of

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bind J. P. Stone personally, and the bank , though we were to refuse to consider the is not a party to this suit.

testimony of Mears on this proposition, the 3. The third and last proposition argued by appellants thereby would not have sustainappellants is that the court did not consided the burden of proof by a preponderance er the seventh and eighth assignments of er- of the evidence that Stone was personally ror made by them, which are decisive of the liable on the letter of guaranty. In passing, case. The seventh assignment of error is it should be remarked that no exceptions to the general effect that the court erred in properly pointing out any alleged vice were holding "that the extrinsic evidence in said taken to the findings of the trial court, and cause did not warrant the court in changing no proposed findings submitted to the court. the former ruling of said district court upon The motion for rehearing will therefore be defendant's demurrer, because the evidence denied, and it is so ordered. in said cause clearly shows" that the parties interpreted the writing as the contract | ROBERTS, C. J., and PARKER, J., conof Stone personally, and that the 'writing cur. was intended to bind Stone personally. The

(22 N. M. 18) eighth assignment is to the general effect that the court should have rendered judg ORTEGA et al. v. VIGIL. (No. 1861.) ment for appellants because the word "pres- (Supreme Court of New Mexico. June 17, ident" was merely descriptive of the person

1916.) of Stone, and because there was no evidence

(Syllabus by the Court.) that Stone intended to bind the bank. 1. JUDGMENT 153(2) - RIGHT TO SET

We have held that the evidence warranted | ASIDE-OPERATION OF STATUTE. the finding of the court to the effect that

Section 4230, Code 1915, which provides

that, "Judgments may be set aside for irreguthe writing did not bind Stone personally, larity, on motion filed at any time within one and have also considered the point with ref- year after the rendition thereof," applies to erence to the interpretation of the contract

judgments rendered out of term time upon deud

fault. by the parties. We also discussed the effect

[Ed. Note.-For other cases, see Judgment, of the use of descriptive words to signatures Cent. Dig. $ 300: Dec. Dig. 153(2). in contracts. It should be remarked at this 2. JUDGMENT C106(2)-DEFAULT JUDGMENT point, we believe, that appellants seemingly -Right to SET ASIDE. lay great stress on that part of the trial An answer filed by a defendant, after the court's opinion in which it is stated that the

time to file the same has expired, and before

judgment of default has been entered by the evidence "squints" both ways as to the per- court, is not a nullity, and so long as answer sonal liability of Stone on the letter of guar- remains on file and undisposed of, plaintiff is anty. The appellants relied on the writing,

not entitled to a judgment by default, and the

rendition of such judgment constitutes an irwhich was ambiguous, to hold Stone person

regularity for which the judgment rendered ally liable thereon. The burden of proof may be set aside upon motion filed at any time was upon them. If the evidence was evenly within one year from the date of the rendition balanced, as the trial court said it was, nec

of such judgment. essarily the appellants did not prove their | Cent." Dig. ss 162, 182, 183; Dec. Dig. Om

[Ed. Note.-For other cases, see Judgment, contention that Stone was personally liable 106(2).] on the letter by a preponderance of the 13. JUDGMENT 106(1), 153 (2) - DEFAULT proof. However, the court found that Stone JUDGMENT-RENDITION. was not personally liable on the instrument,

| Failure of a defendant to serve a copy of

an answer filed by him upon plaintiff's counsel and the record contains no exception there

does not warrant the rendition of a default to on the part of appellants specifically judgment against such defendant. pointing out any error therein. Appellants [Ed. Note.-For other cases, see Judgment, devote much of their brief to the conduct of

Cent. Dig. $$ 160, 162, 180, 181, 193, 194, 300;

Dec. Dig. Om 106(1), 153(2).] T. E. Mears, an attorney, who, it is said, was attorney for one of the appellants prior Appeal from District Court, Taos Counto the institution of this suit, and who sub- | ty; Mechem, Judge. sequently, while representing the appellee Action by Juana Maria Ortega and others herein, testified in this suit as to certain against Trinidad M. Vigil. From judgment matters communicated to him while in the for defendant, plaintiffs appeal. Allirmed. employ of the said appellants. We are ask Catron & Catron, of Santa Fé, for appeled, in effect, to completely disregard this lants. Renehan & Wright, of Santa Fé, for testimony of Mears, in which event it is ar- appellee. gued that there is absolutely no evidence to sustain the finding of the trial court that ROBERTS, C. J. This appeal raises three Stone was not personally liable on the let: questions which may be stated as follows: ter of guaranty. The record, as we view it, First, can a default judgment be set aside is not entirely clear that Mears was the at- for irregularity, on motion filed at any time torney for Shriver at the time Shriver is within one year after its rendition? Secsupposed to have made a statement testified ond, can a default judgment be regularly to by Mears; but, regardless of this, even rendered where defendant has failed to ap

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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