Mass. 143 [4 Am. Dec. 105], where the promissory note of one, who acted as agent and manager for the others, was taken for a debt due from four, it was held, upon rather slight evidence, that it was not intended, and therefore would not operate, as payment. So in the case of French v. Price, 24 Pick. 13, it was decided, that where several persons were liable for goods purchased by an agent, and the vendors knowing that others were liable, but without insisting on such liability, took the note of the agents alone, this was presumptive evidence of payment. But, said the court, it is competent for the plaintiff to rebut this presumption; and they add, if there was any deception or fraud in the giving of the notes, or if they were accepted under an ignorance of the facts, or a misapprehension of the rights of the parties, the vendors ought not to be bound by the acceptance, but may repudiate the notes and rely upon the original contract of sale. The principle rests on the ground, that if the vendors know that others are liable, whether they know who those others are or not, they voluntarily waive their responsi bility by taking the notes of a part only of those who are liable. So where goods are purchased for a company, and a note given therefor by one professing to act as agent of the company, and supposed to be duly authorized to give the note of the company, when it appeared that the agent was not duly authorized, and the note was unavailing as the note of the company, although the holder might have treated it as the personal note of the agent, yet it was held that the holder was not bound to do so, but might treat the note as void, and recover against the company on the original contract for goods sold: Emerson v. Providence Hat Manufacturing Company, 12 Mass. 237 [7 Am. Dec. 66]. And a receipt of payment given on the bill for goods sold, a receipt being by law explainable by evidence aliunde, does not bar the vendor from recovering for goods sold, where the acceptance of the note is not intended to inure by way of payment and satisfaction: Vancleef v. Therasson, 3 Pick. 12. So, if goods are sold to be paid for by a note made by one person and indorsed by another, and a note of a corresponding description is offered and received, and the goods are thereupon delivered, and it appears afterwards that the indorsement is a forgery, such delivery of the note is no payment, and an action will lie for the goods: Ellis v. Wild, 6 Mass. 321.

With this view of the law as to the presumption of fact, aris ing from the acceptance of a negotiable promissory note for a pre-existing debt, whether it is the note of the same parties

originally liable, or of some of the same parties, or the note, genuine or otherwise, of a third person, we repeat the opinion, that we think the general ruling under which the evidence went to the jury was correct, and was sufficiently favorable for the defendants. Under this ruling, as it appears by the report, the plaintiff took the burden of proof, and attempted to show that the notes were in fact the notes of the defendants, and that they had adopted as their mode of signature to contracts of this nature the form here used; and, secondly, that the plaintiff, having a legal demand against the defendants for goods sold, received the notes in question under a misapprehension, in fact, in respect to the identity of the concern designated by the signature of Horace Gray & Co., with that designated as the Boston Iron Company, and acted under that belief; and that such belief was caused by the acts of the defendants and their agents, to whom was intrusted the superintendence and control of all their purchases and payments, and their business generally.

We are then brought to the consideration of the defendants' prayers for specific instructions, and the action of the judge upon them.

The first was, that the plaintiff, having counted upon these notes, and now seeking to recover on them, can not at the same time aver that he has so surrendered the notes, that they do not amount to payment. The judge declined, but instructed the jury, that the plaintiff was not precluded from now surrendering these notes, and recovering on the other counts, if he was not entitled to recover on the notes; if, in other respects, he was entitled to recover on the other counts for the goods sold. We do not perceive why a person may not declare on the original cause of action for goods sold, and also on a note given for the same cause, which the holder believes that the maker intends to resist, as void for any cause; they are two modes of claiming one and the same demand, to meet the evidence in the case. If he recovers on one of them, he will not on the other. In New York, where a note is not prima facie payment, but may be, if so agreed, the canceling of the note before bringing the action is not necessary to a recovery of the original debt; the rule is, that on the trial the court will not suffer the plaintiff to recover on the original consideration, unless he can prove that the note given for it is lost, or can then produce it to be canceled; but it is no objection to such a recovery that the note has been indorsed to another, if it has been retransferred to the payee, and he has it at the trial ready to be

canceled, if he recover on the original consideration. This is obviously required to secure the defendant from being twice charged: Burdick v. Green, 15 Johns. 247; Hughes v. Wheeler 8 Cow. 77.

But the defendants, as we understand the argument, insist that these two claims are not only inconsistent with each other, but are repugnant to each other, so that the assertion of one is a denial of the other; and thus, if the plaintiff claims for the goods sold, the claim assumes that the notes given for them are not the notes of the defendants; but they are the notes of some party, and if not the notes of the defendants, they are the notes of Horace Gray & Co.; and the plaintiff, after recovering of the defendants for the goods, may recover of Horace Gray & Co. on the notes, who would have no defense against them. But we think this argument is not well founded. It may be true, that if the plaintiff, in the first instance, had chosen to treat the notes as the notes of Horace Gray & Co., the latter might have been barred by the doctrine of estoppel, from denying that they were bound by the notes; but the holder having elected to treat them as the notes of the defendants, made by the instrumentality of Horace Gray & Co., and having declared on them as such, and more especially having obtained judgment on them, or on the consideration for which they were given, the plaintiff would be estopped from proceeding against Horace Gray & Co.; and by a well-known technical rule, there would be estoppel against estoppel, which would let in the truth; or in other words, the plaintiff would be precluded by his own acts from making any such claim. Besides, looking at the subject in a more direct and practical view, if the plaintiff in this suit recovers on the notes, they will be merged in the judgment and effete; if he recovers on the count for goods sold, the notes will be canceled, and impounded here, and can never be used against Horace Gray & Co. Precisely the same course was adopted in the case of Emerson v. Providence Hat Manufacturing Co., 12 Mass. 237 [7 Am. Dec. 66]. There, no doubt, the plaintiff might in the first instance have proceeded againg Roberts, the agent, but having elected to proceed against the company, it was not suggested that he could afterwards proceed against the agent.

The second prayer for instructions was: That the defendants' corporate name not appearing on the notes, and the notes on their face not disclosing any agency, Horace Gray & Co., and not the corporation, were bound by these notes. This instruc

AM. DEC. VOL. LI-5

tion was given, as the defendants insist, with such qualifications and restrictions, as take away the whole legal effect and operation of it. This is true, and it leads to the other principal question in the present case. It is undoubtedly true, that the notes were not signed in the defendants' regular corporate name, by which they were incorporated; that the notes on the face of them did not disclose any agency; and that they were signed by Horace Gray & Co., who had a separate firm and house of trade of that name. If it were an absolute and unqualified rule of law, that upon these facts Horace Gray & Co., and not the corporation, were bound, and the judge was bound so to instruct, of course that would put an end to the question, whether these notes could be the notes of the defendants. The court did give the instructions prayed for, but with this qualification, that the ruling was not to be understood as preventing the plaintiff from maintaining his action, if the jury were satisfied: 1. That these notes were in fact the notes of the Boston Iron Company executed under a name adopted and sanctioned by them as indicative of their contracts; or, 2. That the plaintiff received these notes upon a legal demand against the defendants, under a misapprehension of the facts as to the matter that Horace Gray & Co. and the Boston Iron Company were not the same; the plaintiff acting under the belief that they were, and such belief being induced by the acts of the defendants, or their legal agents.

The effect of the instruction thus given, we think, was, that the facts mentioned in the prayer for instructions, to wit, the corporate name not appearing on the notes, and the notes not disclosing any agency, but signed "Horace Gray & Co.," constituted prima facie evidence, that those were the notes of Horace Gray & Co., and not of the Boston Iron Company; and standing alone would warrant and require the direction, that Horace Gray & Co. and not the Boston Iron. Company were bound by them; but that this evidence might be rebutted, and controlled by proof aliunde that they were in fact the notes of the Boston Iron Company, because executed under a name adopted and sanctioned by them as indicative of their contracts, and it may be added, given in satisfaction of their debt.

The court are of opinion that this direction was correct. If, by any possible proof, the presumption arising from the face of the note, from the form of the execution, from the corporate name of the company not being used, and the use of the name of a mercantile firm, could be rebutted, then the evidence was

prima facie, and not conclusive. It seems to be now well settled in this commonwealth, since the great multiplication of corporations, extending to almost all the concerns of business, that trading corporations, whose dealings embrace all transactions, from the largest to the minutest, and affect almost every individual in the community, are affected, like private persons, with obligations arising from implications of law, and from equitable duties which imply obligations; with constructive notice, implied assent, tacit acquiescence, ratifications from acts and from silence, and from their acting upon contracts made by those professing to be their agents; and, generally, by those legal and equitable considerations which affect the rights of natural persons. We are not dealing here with the weight, force, or effect of the evidence, but only whether any evidence aliunde could control the presumption arising from the notes; and we think there was evidence competent to go to the jury, from which they might infer that the defendants had so adopted a name, other than their corporate name, for the special purpose of giving notes, as to be bound by it, when used by a general agent, in liquidation of their own debts.

This results from a series of decisions both in England and in this country, but particularly in America, quite too numerous to be reviewed here. I will allude to a few. In the supreme court of the United States, in the case of Bank of Columbia v. Patterson, 7 Cranch, 299, it was held that a corporation might be bound both by express and implied provisions, and that by acting on the contracts made by their agents, they adopted and ratified them. In the case of United States Bank v. Dandridge, 12 Wheat. 64, the subject was considered at great length, and it was held that a corporation is bound by the same presumptions which would affect a natural person; that the authority of agents may be proved from their acts, and that corporations may be affected by parol proof and presumptions of fact, in the same manner as natural persons. The case is an instructive one, and though the chief justice dissented, it has generally been acquiesced in as sound law. In Massachusetts, in the case of Canal Bridge v. Gordon, 1 Pick. 297 [11 Am. Dec. 170], it was held that a corporation could be bound without vote or deed by implication from corporate acts. This proceeded on the broad ground, that corporations can be bound by implication as well as individuals. In Minot v. Curtis, 7 Mass. 441, 444, the court say: "We know not why corporations may not be known by several names, as well as individuals." As that case arose on