delivery thereof by all parties prior to him so as to make them liable to him is conclusively presumed (c). And where the instrument is no longer in the possession of a party whose signature appears thereon, a valid and intentional delivery by him is presumed until the contrary is proved (d).

(a) Like other written contracts, a bill of exchange or promissory note has no legal inception or valid existence as such until it has been delivered in accordance with the purpose and intent of the parties. Burson v. Huntington, 21 Mich. 416.

(b) In the North Carolina Act the word "accepting" is omitted. (c) This provision changes the law in some of the States. In some cases it has been held that an instrument in the form of a negotiable promissory note, which has never been delivered by the alleged maker, has no legal existence as such note, and the party sought to be charged upon it may always, unless estopped by his own negligence, defend successfully against it, without regard to the time when or the circumstances under which it was acquired by the holder. Roberts v. McGrath, 38 Wis. 52; Chipman v. Tucker, 38 Wis. 43; Griffiths v. Kellogg, 39 Wis. 290; Burson v. Huntington, 21 Mich. 416. This change, like some others made by the act, is in the direction of facilitating the circulation of commercial paper. The provision does not apply, however, in the case of an incomplete instrument completed and negotiated without authority. See section 34.

(d) Possession of the instrument is prima facie evidence of title. Newcombe v. Fox, 1 App. Div. 389.

§ 36. Construction where instrument is ambiguous.Where the language of the instrument is ambiguous, or there are omissions therein, the following rules of construction apply:

I. Where the sum payable is expressed in words and also. in figures and there is a discrepancy between the two, the sum denoted by the words is the sum payable; but if the words are ambiguous or uncertain, references may be had to the figures to fix the amount (a);

2. Where the instrument provides for the payment of interest, without specifying the date from which interest is

to run, the interest runs from the date of the instrument, and if the instrument is undated, from the issue thereof;

3. Where the instrument is not dated, it will be considered to be dated as of the time it was issued (b);

4. Where there is a conflict between the written and printed provisions of the instrument, the written provisions prevail (c);

5. Where the instrument is so ambiguous that there is doubt whether it is a bill or note, the holder may treat it as either at his election (d);

6. Where a signature is so placed upon the instrument that it is not clear in what capacity the person making the same intended to sign, he is to be deemed an indorser (e);

7. Where an instrument containing the words "I promise to pay" is signed by two or more persons, they are deemed to be jointly and severally liable thereon (ƒ).

(a) The figures in the margin of a bill or note are regarded as simply a memorandum or abridgement for convenience of reference, and form no part of the instrument. Smith v. Smith, 1 R. I. 388.

(b) Knisley v. Sampson, 100 Ill. 54.

(c) But this rule does not permit of the rejection of any of the printed matter which by any reasonable construction may be reconciled with the written part. Miller v. Hannibal & St. Jo. R. R. Co., 90 N. Y. 430; Magee v. Lovell, L. R. 9 C. P. 107; Joyce v. Realm Ins. Co. L. R., 7 Q. B. 580.

(d) Heise v. Bumpass, 40 Ark. 547. Where the instrument ran "On demand, I promise to pay A. B., or bearer, the sum of fifteen pounds, value received," and was addressed in the margin to one J. Bell, who wrote upon it, "Accepted, J. Bell," it was considered to be in effect the note of Bell, as it contained a promise to pay, although, in terms, it was an acceptance. Block v. Bell, 1 M. & R. 149. Where the instrument was in the following form: "London, August 5, 1833. Three months after date I promise to pay Mr. John Bury or order forty-four pounds, eleven shillings, and five pence, value received, John Bury," and was addressed in the lower left-hand corner "J. B. Grutherot, 35 Montague Place, Bedford Place," and Grutherot's name was written across the face as an acceptance, and Bury's name across the back as an indorsement, it was

held that Bury might be held either as the drawer of the bill against Grutherot, or as the maker of the note, and therefore was bound without notice of dishonor. Edis v. Bury, 6 Barn. & Cres. 433. In another case the instrument ran: "Two months after date I promise to pay A. B. or order ninety-nine pounds, H. Oliver," and was addressed to J. E. Oliver and accepted by him. The court said: "It is not unjust to presume that it was drawn in this form for the purpose of suing upon it either as a promissory note or as a bill of exchange." Lloyd v. Oliver, 18 Q. B. 471.

(e) For example, if a person should write his name across the face of a note, he would under this provision be deemed an indorser. There are some decisions which hold that in such case he would be deemed a joint maker. It is, perhaps, not very important which view is adopted, so that the rule upon the subject is fixed and certain. Throughout the act it has been the policy to make all irreg ular parties indorsers. See section 114.

(f) Monson v. Drakeley, 40 Conn. 559; Solomon v. Hopkins, 61 Conn. 47; Dart v. Sherwood, 7 Wis. 523. In the Wisconsin Act another subdivision is added as follows: "8. Where several writings are executed at or about the same time, as parts of the same transaction intended to accomplish the same object, they may be construed as one and the same instrument as to all parties having notice thereof."

§ 37. Liability of person signing in trade or assumed name. No person is liable on the instrument whose signature does not appear thereon (a), except as herein otherwise expressly provided. But one who signs in a trade or assumed name will be liable to the same extent as if he had signed in his own name (b).

(a) Persons dealing with negotiable instruments are presumed to take them on the credit of the parties whose names appear upon them, and a person not a party cannot be charged upon proof that the ostensible party signed or indorsed as his agent. Manufacturers' Etc. Bank v. Love, 13 App. Div. 561; Briggs v. Partridge, 64 N. Y. 363.

(b) A person may become a party to a bill or note by any mark or designation he chooses to adopt, provided it be used as a substitute for his name and he intends to be bound by it. De Witt v.

Walton, 9 N. Y. 574; Brown v. Butchers' & Drovers' Bank, 6 Hill, 443.

§ 38. Signature by agent; authority; how shown.The signature of any party may be made by a 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.

§ 39. Liability of person signing as agent, etc.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 authɔrized (a); 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 (b).

(a) In the original draft submitted to the Conference of Commissioners on Uniformity of Laws this section read as follows: "Where 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; but the mere addition of words describing him as an agent, or as filling a representative character, does not exempt him from personal liability. In determining whether a signature is that of the principal or of the agent by whose hand it is written, that construction is to be adopted which is most favorable to the validity of the instrument." This is the English rule, and was the rule in New York prior to the statute. Under that rule a person signing for or on behalf of a principal was not liable on the instrument, notwithstanding he had no authority to bind his principal. There was an implied warranty on his part that he possessed such authority, and if he did not he became liable upon such warranty for the damages resulting from the breach. Miller v. Reynolds, 92 Hun, 400. But no action could be maintained against him on the instrument when by its terms it did not purport to bind him. And his liability upon the implied warranty did not accompany the transfer of the instrument, unless the claim founded upon the warranty was also assigned to the person to whom the instrument was transferred. (Id.) The effect

of the section, as it now stands, is to permit the holder to sue the agent on the instrument, if he was not duly authorized to sign the same on behalf of the principal.

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(b) Thus, he is not relieved from liability by adding the descriptive term trustee," Bank v. Looney, 99 Tenn. 278, or "administrator," or "guardian," Emm v. Carroll, 1 Yerger, 144; McWherter v. Jackson, 10 Humphrey, 208; Carter v. Wolf, 1 Heisk, 674, or "agent," Sumwalt v. Rigeley, 20 Md. 107. Where a negotiable promissory note has been given for the payment of a debt contracted by a corporation, and the language of the promise does not disclose the corporate obligation, and the signatures to the paper are in the names of individuals, a holder, taking bona fide and without notice of the circumstances of its making, is entitled to hold the note as the personal undertaking of its signers, notwithstanding they affix to their names the title of an office. Such an affix will be regarded as descriptive of the persons, and not of the character of the liability. Unless the promise purports to be by the corporation, it is that of the persons who subscribe to it; and the fact of adding to their names an abbreviation of some official title has no legal signification as qualifying their obligation, and imposes no obligation upon the corporation whose officers they may be. This rule is founded on the general principle that in a contract every material thing must be definitely expressed, and not left to conjecture. Unless the language creates, or fairly implies, the undertaking of the corporation, or if the purpose is equivocal, the obligation is that of its apparent makers. Casco National Bank v. Clark, 139 N. Y. 307, 310; First Nat. Bank v. Wallis, 150 N. Y. 455.

§ 40. Signature by procuration; effect of.-A signature by "procuration" operates as notice that the agent has but a limited authority to sign, and the principal is bound only in case the agent in so signing acted within the actual limits of his authority (a).

(a) The words "per procuration" have a special technical significance. They are an express intimation of a special and limited authority; and a person taking a bill so drawn, accepted, or indorsed, is bound to inquire into the extent of the authority. Byles on Bills, 33. But an indorsement by an agent "per pro" which is within the powers conferred upon him is binding upon his principal as against bona fide holders for value, though the agent