9, ^^^a IMAGE EVALPJATION TEST TARGET (M7-3) 1.0 I" * M 12.5 I.I 2.2 1.25 i ^ IIIM luuu JA lil.6 Hiotographic Sdences Corpomtion 33 WEST MAIN SfREET WEBSTER, NY. I4SM (716) 872-4S03 ,-\ ^^ }S^ §LV "^^ .^ ^^Ja ^^ ^"^ ;\ CIHM/ICMH Microfiche Series. CIHM/ICMH Collection de microfiches. Canadian Institute for Historical Microreproductions / Institut Canadian de microreproductions historiques ^ Technical and Bibtiographic Notes/Notes tachniquet at bibliographiquas Tha Instituta has attamptr.d to obtain tha bast criginai copy available for filming. 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The following Jiagrams illustrate the method: L'exemplaire film* fut reproduit grAce A la g cheque v/as issued and post-dated in obedience to the following resolution passed by the Board of Directors, on the 4th of March, 1887: — " Resolved that a cheque be issued for $50.00, dated 30th of April, Mr. McCulloch." The Defendant signed cheque, as president, according to custom. 'J'he cheque was discounted bv Masson, but dishonored on presentment, there being "no funds." No one was deceived, all the parties. Drawer, Payee, Endorser, Bank, considered they were dealing with the Com- pany's cheque. It was given for work done for the Company, and was not paic^ owing to the misfortune of the Company alone. The Company shoiild have been sued. The cheque was manufactured out of an ordinary blank form issued by the Bank of Montreal, and was a fac- simile of that issued by the presidents of other local companies, notably that of 'The Ottawa Gas Company," who used an ordinary blank, Stamped "The Ottawa Gas Co." across one end of the face, and had it signed "F C , Managing Director, The Ottawa Gas Co." The question of personal liability of the President, could not be raised, inasmuch as all the parties were fully acquainted with the circum- stances under which it was issued: until dishonored, all were agreed that it was the Company's cheque. But even if any person had been deceived as to whose security he |X)ssessed, surrounding facts must determine -the liability of the Drawer. "Whether he is so liable depends upon the " terms of the particular contract construed in connection with the sur- " rounding circumstances, and the relative situations of the parties, at " the time the contract was entered into." (Addison on Contracts, 7th Ed., p. 61.) " When the Directors are expressly authorized to accept bills or " issue promissory notes on behalf of the company, the company will be " bound if the authority is substantially acted upon. It need not be "exercised in the very terms in which it is given, or be strictly or tech- " nically accurate in point of form." — (Ibid. 979.) See also the following American cases : — "When individuals sub- " scribe their proper names to a promissory xvoXq^ prima facie they are " personally liable, though they add a description of "ihe character in " which the note is given, but such presumption of liability may be re- " butted by proof that the note was, in fact, given by the makers as " agents, for a debt of the principal due to the payee, with the payee's "knowledge. — (17 Wend. Rep. 40.) " Where a party dealing with an agent, takes his promissory note, " with a knowledge of his agency, and of the liability of the principal " for the debt for which the note is given, hie, thereby, charges the prin- "cipal.** — (10 Mete. B-ep. Mass. 160.) . "^ In commercial Cases, in furtherance of the public policy of en- " couraging trade, if it can, upon ^he whole instrument be collected, that " the true object and intent were to bind the principal, and not merely ^ ** the agent, couns of justire will adopt that construction of it, however "informally it may be expressed— (22 Wend. Rep., N. Y., 324.) In the present case, however, there has never been any difficulty as to the liability of the company. The debt has always been acknow- ledged to be th£.t of the company, but the company has never been asked to pay. On the 28th September, 1887," it was moved by Mr. Feather- ston and secjnded by Mr. Hope, and resolved : — '*^hat the directors hereby acknowledge that the check issued by the president in favor of W. T. McCuUoch, is a liability of the company, and has always been such." Dr. VVicksteed concluded by citing the judgmen* in "The Bank of Ottawa vs. Hamilton," (U. C. P. reports, voi. 28, p. 488) as the corre'^t judgment in an almost identical [X)sition. W.J. Code., contra, pleaded that the name of the company was not properly attached to the cheque, citing in sup[)o.t the following cases : — Bank of Montreal vs. Depatre, 5 Q. B. ; Foster vs. Geddes, 14 Q. B. : Robertson vs. Glass, 20 C. P.; Haggarty vs. Squier, 42 U. C. R. ; Brown vs. Howland, 9 Ontario reports. LyoH^ C. J. — Judgment for plaintiff. The name of the Coffee House Company should have been introduced into the body of the cheque. The cheque as it stands is an order to the bank cashier to pay the amount of fifty dollars to McCulloch out of the private account of the Defendant. J. The above case was heard on the 2nd December, 1887. The first inkling of such a suit having been determined on by Mr. Code was a letter from him 10 Defendant in June, Your president, the Defendant, often brought up the matter at the Board of Directors and was always met with a smile, and the remark, " that's your cheque Doctor." Thmking it was a good natured attempt at bluff on the part of his co-directors to coax him to pay the debt, and confident that the directors would come forward before the case was argued and pay their shares, your president did not press them further. But when the case was heard on 2nd December, before Judge Lyon, the Defendant's witnesses proved false and traitorous. Mr. Mc-^ Culloch swearing to statements the opposite to those he had made in the same box in August, and Messrs. Hope and Featherston were reticent, shuffling and evasive, doing all the damage to your presidents' position they could. The president's eyes then began to open to the fact that these witnesses were prepared to injure the company provided they could only annoy him. He therefore wrote to Dr. J. A. Macpherson, the late manager, (a man, #ho although unfortunate in his management, is a man of refine- ment, honor and probity,) as follows : — > i 2 i 4 5 6 7 Ottawa, 5th December, 1887. Prof. J. A. Mrtcpiiersoti, . Late Manager (). i'. C H., Sib, — Tlie cheiiue for $50, which, acconling to resolution, I made as President of O. T. C. Co'y in favor of W. T. McC'iilloch was not paid owing to want of funds. Suit has been brought against ine a;, the nviker. I am defending, of course, as the cheque is the company's cheque for company's work. I am lead to believe that the suit has been instigated by Hope and Featherston to |xiv rne otf for some imagined slight 10 them. They have behaved very meanly throughout, and now want to raise the silly (juibble that the cheque is my personal che(|ue because it did not issue first from the tt-easurer (Mr. James Ilojje). With a knowle Ige of the foregoing, please write me a full account of all that transpired respecting the cheque, and answering the following queries: — r Di'l Mr. lIo|)e authorize you lo ask me to sign cheque when you did? Why did you or McCulloch not get it signed by Mr. Hope? What did McCulloch say when you gave it him? Did Masson ever talk to you about it? Would the bank have cashed che(|ue with my signature alone? Were any che(|ues ever casheook, but as it was in my^ p, for T see that several decisions, — in cases, to be sure, very different from this one, but then they are derisions^ — say that the Defendant is personally liable. This I hold to be good law, though, when I reflect on it, it does look even to my