Moran v. Risley , 1 N.Y. City Ct. Rep. 229 ( 1879 )

McAdam, J.

Mr. Risley, in his representative capacity as assignee, had no power to bind the bankrupt estate by promissory notes or other like obligations, and in consequence charged himself personally, upon the familiar principle that he who is capable of contracting and does contract in his own name, although as the agent of another, who is incapable of contracting, is held to intend to bind himself; since in no other way can the contract possess any vitality, but would perish from its own intrinsic infirmity (Story on Agency, §§ 273, 280, 281; Story on Promissory Notes, 7 ed. § 63; 1 Daniel on Negotiable Instruments, p. 201, §§ 261, 262). Thus, for example, where a person signed a note “ as guardian of A. B.,” he was held personally liable on the note ; for he could not make his ward personally liable therefor, nor his ward’s assets (Hills v. Bannister, 8 Cow. 31 ; Sumner v. Williams, 8 Mass. 162). So, where a person signed a note “as trustee of A. B.,” he was held personally liable, for it was not primarily binding upon his cestui que truest {Ib.). So, where a person signed a note “as executor or administrator,” it was held that he was personally liable, because it would not bind the estate of the deceased; and to give it any validity, it must be construed to be a personal obligation of the maker (Burrell v. Jones, 3 B. & Ald. 47; Roberts v. Button, 14 Vt. 195; Foster v. Fuller, 6 Mass. 58 ; Childs v. Monins, 2 Brod. & Bing. 460; Tassey v. Church, 4 Watts & Serg. 346 ; 34 Legal Intelligencer [Penn.] 382). There is no peculiar hardship in the application of this principle to aid in determining the maker’s personal liability upon the note,, because, independently of it, he was personally liable for the services which formed the consideration for it (Wilcox v. Smith, 26 Barb. 316 ; Bowman v. Tallman, 2 Robt. 385; Mygatt v. Wilcox, 1 Lans. 55; Ferrin v. Myrick, 41 N. Y. 315 ; 7 Weekly Dig. 390). No other construction than that before declared can consistently be placed upon the instrument in suit, and however hard it may seem, the defendant is supposed to have known the legal effect of his act, and to have contracted with reference to it (see New v. Nicoll, 73 N. Y. 127). The plaintiff is entitled to judgment for $157.59, the amount claimed, and interest, with costs, and the defendant must seek reimbursement out of the funds of the bankrupt estate (Bump on Bankruptcy, §§ 5099, 5100).

Note.—The judgment was paid without appeal.