CARIMJEE JAFFERJEE v. SEBO

118-NLR-NLR-V-02-CARIMJEE-JAFFERJEE-v.-SEBO.pdf


( 280 )
1896.
December 4.
1897.
January 22.
CARIMJEE JAFFERJEE v. SEBO.
D. C., Galle, 2,734.
Signature by agent—Liability of principal—Words of description—Bills ofExchange Act, ss. 23 and 90.
Gira, who was empowered by Sebo “to sign and grant promissorynotes,regarding her trade in her name and for her,” signed apromissory note as follows :—“ Sebo’s attorney Gira.”
Held by Lawrie and Withers, J.J., disserUiente Bonser, C.J.,that Sebo was liable on the note, there being sufficient indicationthat the note was signed by Gira as Sebo’s attorney.
f 11HE facts sufficiently appear in the judgment of Bonser, C.J.
Sampayo, for defendant, appellant.
Domhorst, for plaintiff, respondent.
Cur. adv. wit.
22nd January, 1897. Bonser, C.J.—
In this case I have the misfortune to differ from the rest of theCourt. The question to be decided is, whether the defendantPattiniyadurage Sebo, who is sued as P. S. Sebo, is liable on apromissory note which was made by me Gira. It appears thatthe defendant, who is a widow carrying on business of a generalshopkeeper in Galle, duly appointed Gira to manage the businessfor her, and empowered him to sign and grant “ promissory notes“ regarding the transactions of the aforesaid trade in my name
and for me.” Gira made and gave to the plaintiff on the 1stMarch, 1894, the note now sued on, which (so far as is material)was in the following words and figures:—
“ On the 1st day of April, 1894, I, the undersigned, promise to“ pay to Carimjee Jafferjee, Esq., or order, at the Mercantile Bank,“ Galle, and not elsewhere, the sum of Rupees Four hundred and“fifty and Cents ninety-eight only, currency, for value received.”
The words and figures in italics are in writing, the rest isprinted. The signature of the maker is in Sinhalese, and beingtranslated is “ P. S. Sebo’s attorney Gira.” ■ Now, according toOrdinance No. 5 of 1852, section 2, the instrument is to beconstrued as if it had been made in England. We must thereforeapply to it the provisions of “ The Bills of Exchange Act, 1882,”and the question is, whether the defendant would be liable .on a./'note in this form made in England^
This question is quite distinct frdm the question whether thedefendant is liable for debts contracted by her attorney Gira.
( 287 )
Now, in order that a person should be liable as the maker of apromissory note, it is necessary that the note “ should be signed“ by him as such maker ” (section 23). It is not necessary that he“ should sign with his own hand, but it is sufficient if his signa-“ ture is written thereon by some other person by or under his“ authority ” (section 90).
But it must bear his signature. Nor is it necessary in all casesthat the name which is signed should be his own proper name.It may be a trade name, or a name assumed generally or for oneparticular occasion only (section 23 (1) ).
For instance, Smith may have assumed the name of “ Robinson,”either generally or for trade purposes only, and if he signs apromissory note with the name “ RobinBon,” either with his ownhand or by the* hand of his agent, he will be liable just as if hehad signed , his own proper name. So, if from caprice or for someother reason, he signs a promissory note with the name “ Robinson ”on one occasion only his liability is undoubted. Again, where afirm name is signed that signature is equivalent to the signaturesof all the individual partners (section 23 (2) ), and there wouldseem to be no doubt that a person may sign by affixing a'mark.But, except in the cases just referred to, the signature must be themaker’s own proper name.
It was argued that the signature in this case should be read as“ P. S. Sebo by her attorney Gira.” If this be so cadit qucestio.But that is paraphrase, not translation.
The question is not what Gira meant, but what he has actuallywritten. It seems to me that the case comes within the expresswords of section 26 (1).
Gira signed as maker, and I'read the rest of the signature asbeing “ the mere addition of words describing him as an agent.”I do not see how clause (2) of that section can apply, for, whetherthis signature be determined to be the signature of Gira or of thedefendant, in either case the note is Valid. The name of themaker does not occur in the body of the instrument. Had the.note run thus : “ I, the undersigned, P. S. Sebo, promise,” &c.,that clause might possibly have applied.
I aba of opinion that the defendant is not liable on this note asmaker, because, to use the words of the Act, “ she has not signed“ it as such.”
The power of attorney only authorized Gira to sign notes in thedefendant’s name. So that, unless tjhe' note is made in her ownproper name it is not within the authority.
The order of the Court will be, in accordance with the opinions. .of my brethren, that the appeal be dismissed with costs..
1808.
December 4.1807.
January 22.Bonseb, C. J.
( 288 )
1866.
December
1897.
January 22.
Lawbee, J.—
I read the signature on the promissory note to be “ P. S. Sebo by“ her attorney Gira.” Therefore I am for affirming the judgment.
. Withers, J..—
There can be no doubt as to the law on the point. It is thoapplication of the law to the particular circumstances which hasto be considered. An agent who signs a promissory note for aprincipal does so either by simply writing his principal’s name orby writing that and his own name as well. If the principal’sname does not appear at all in the body of the note or signaturethe principal oannot be bound. Seotion 23 read with section 89of the Bills of Exchange Act declares this to b§ the law: “ No-“ person is liable as drawer, indorser, or acceptor of a bill who“ has not signed it as such.”
Then, section 26 of that Act enacts that “ if a person signs abill as drawer and.'adds words to his signature indicating that hesigns for or on behalf of a principal, or in a representativecharacter, he is not personally liable thereon, but the mere addi-tion to his signature of words describing him as an agent or asfilling a representative character does not exempt him frompersonal liability.”
It becomes, therefore, a question of fact, does the note before usbear Sebo’s signature by procuration ? The signature is in Sinha-lese, and we are informed that the literal translation word forword is “ Sebo’s attorney Gira.” But is this the exac t equivalent inEnglish ? ‘What is the true sense ? Are the words “ Sebo’sattorney Gira ” simply descriptive of Gira and marking him fromothers of that name, or do they signify that Gira signed on Sebo’sbehalf ? We know that at the time of the making of the note Girawas the duly appointed manager of Sebo's trade business, andthat in that capacity he held a power of attorney authorizing himto sign and grant promissory notes in Sebo’s name and for Sebo.The Bills of Exchange Act, section 26 (2), directs that in deoidingwhether a signature on a bill is that of the principal or that of theagent in whose hand it is written, the construction most favour-able to the validity of the note shall be adopted.
If Gira, according to the true sense of the signature, is not liableas agent, the note is in peril of becoming a dead letter.
But as Sebo’s name is on the note, if Gira’s subscriptionsufficiently expresses that he subscribed for Sebo, as ,1 think itdoes, the construction to be adopted is that it is Sebo’s note.
Fer6a sunt ita intelligenda ut res magis valeal quam per eat. Iam for affirming the judgment in consequence.0