Opinion
Argued February 4, 1914
Decided April 14, 1914
H. Snowden Marshall, James A. O'Gorman and Isaac H. Levy for appellant. Emanuel Blumenstiel and Milton M. Blumenthal for respondent.
The sole question to be determined on this appeal is the correctness of the rulings made by the trial justice in the exclusion of evidence offered on behalf of defendant to avoid liability upon the instrument in suit and to establish that the writing in question was the undertaking of the Gore-Meenan Company, of which defendant was secretary, and was not the individual obligation of the defendant; that the plaintiff obligee in the bond understood that the instrument in suit was the undertaking of the corporation, not only from the face of the same but it had treated it as such by subsequently preparing an indemnity bond and seeking to have Meenan individually execute the same in lieu of the bond in suit. For the purpose of establishing the acts and knowledge of plaintiff, defendant called as a witness a representative of the plaintiff and propounded questions to him tending to disclose knowledge on the part of the plaintiff that the bond was intended by plaintiff to be the bond of the Gore-Meenan Company; that it had been treated as such by the plaintiff, and that an attempt had been made by plaintiff after the execution of the instrument in question to secure from defendant individual indemnity in addition to the Gore-Meenan liability. All parol evidence offered by defendant along the line stated was excluded over exceptions by defendant.
If upon the face of the instrument in suit such ambiguity is found as to be consistent with the construction either that the defendant intended to execute the same on behalf of the Gore-Meenan Company or as an individual, parol evidence was admissible to prove the circumstances under which the bond was executed and the character in which the defendant signed the same.
The bond in its entirety, including the acknowledgment of the same, was set forth in the complaint in the action, and was received in evidence upon the trial. It was prepared by the plaintiff and under well-established rules of law must be strictly construed against it. The body of the bond does not contain the name of the defendant. True it does refer to the parties thereto in an individual sense, but it also refers to "successors," thus disclosing the adaptability of the blank form to execution by a corporation as well as by an individual. At the close of the instrument will be found first the corporate seal of the Gore-Meenan Company; this was followed by the signature of the defendant Meenan and the signature of Gore. The acknowledgment was by Gore, "President of the Gore-Meenan Co.;" then follows the acknowledgment wherein appears the name of Meenan who did depose that he was secretary of the Gore-Meenan Company, "the corporation described in and which executed the foregoing instrument; that he knows the seal of the said corporation; that the seal affixed to the said instrument is such corporate seal; that it was so affixed by order of the Board of Directors of the said corporation, and that he signed his name to the said instrument by like order."
The instrument upon the face thereof discloses it was executed the day following the execution by the Gore-Meenan Company of an application (which was placed in evidence by the plaintiff) for a bond substantially in terms the language of the bond in suit.
At common law a contract under the seal of a corporation, attested by the signature of its executive officers, was prima facie the contract of the corporation. The seal of the corporation was its signature. ( Trustees v. McKechnie, 90 N.Y. 618; People's Bank v. St. Anthony's R.C. Church, 109 N.Y. 512-525; Quackenboss v. G. R.F. Ins. Co., 177 N.Y. 71. ) The seal of the corporation having been affixed to the instrument followed by the signatures of the president and secretary, designated in the acknowledgment as such, the presumption follows that the seal of the corporation was attached to the instrument by proper authority.
We are of the opinion that the instrument in suit was not free from ambiguity, and that parol evidence was admissible to prove the circumstances under which the same was executed, also to establish facts disclosing knowledge of the plaintiff that the purpose of the bond in suit was to bind the Gore-Meenan Company and not the defendant in this suit ( Schmittler v. Simon, 114 N.Y. 176); therefore, the trial justice was in error in refusing to receive such evidence and for that reason the judgment must be reversed.
The judgment should be reversed and a new trial ordered, costs to abide the event.
WILLARD BARTLETT, Ch. J., WERNER, COLLIN and CUDDEBACK, JJ., concur; HISCOCK, J., dissenting; MILLER, J., not sitting.
Judgment reversed, etc.