Opinion of the Court. that such judgment is erroneous, and oral argument has been addressed to us on that point. For the purposes of this decision we do not deem it necessary to review seriatim all the errors assigned. In our opinion the first question to be considered is: Does the indorsement on the notes involved in this case, in terms, purport to be that of the Peninsular Cigar Company, or does it purport to be the personal indorsement of Moebs? In other words, can it be clearly ascertained from these instruments themselves who is, in law, the indorser of them? Is the indorsement plain and clear, or is it ambiguous? It is contended on behalf of the plaintiffs in error that the indorsement, in terms, is that of Moebs personally; or, at most, that it is ambiguous and may be construed to be either that of the Peninsular Cigar Company, or the personal indorsement of Moebs. They, therefore, contend that the correspondence leading up to the making of these notes (and which is embraced in the deposition of Arnold Falk, before mentioned) should be considered and read with the notes and the indorsement upon them, not so much for the purpose of varying the terms of the contract embraced in the notes, as for the purpose of elucidating that contract, and for the purpose of showing who was in fact the indorser; - not for the purpose of showing what is the true construction of the language of the contracting party, but who is the contracting party. On the other hand, it is insisted with equal earnestness by the defendant in error, that the indorsement is unambiguous, and is in plain terms that of the Peninsular Cigar Company, and is not the personal indorsement of Moebs. He, therefore, contends that the evidence contained in the said deposition of Arnold Falk was rightfully rejected; and that to have admitted it as legal evidence would have been in effect to allow a contract in writing to be changed and modified, in an action at law, by extrinsic evidence, contrary to the rule of law which forbids such change or modification. Upon this question it may be said that the authorities are not entirely harmonious. Indeed, there is much conflict among them. We do not find it essential, or even useful, Opinion of the Court. to discuss minutely every authority cited by the respective parties to this controversy, some of which are believed to have little relevancy to the subject under consideration. A discussion of a few of the leading ones which are believed to embody all the principles involved in this case, and to control it, will perhaps be sufficient. Hitchcock v. Buchanan, 105 U. S. 416, is a case much in point on this subject. Indeed, it was considered by the learned District Judge below (who, nevertheless, disapproved of the ruling therein and dissented from the opinion of the court below) as practically controlling this case adversely to the plaintiffs in error. In that case a bill of exchange, as follows: $5477.13. OFFICE OF BELLEVILLE NAIL MILL CO., Belleville, Ills., Dec. 15th, 1875. "Four months after date, pay to the order of John Stevens, Jr., cashier, fifty-four hundred and seventy-seven dollars. value received, and charge same to account of Belleville Nail Mill Co. "WM. C. BUCHANAN, Pres't. "JAMER C. WAUGH, Secy. "To J. H. Pieper, Treas., Belleville, Illinois." was held to be the bill of the company and not that of the individual signers; and it was also held that a declaration thereon against the latter as drawers, setting forth the instrument, and alleging it to be their bill of exchange, was bad on demurrer. In Carpenter v. Farnsworth, 106 Mass. 561, a check drawn on the Boston National Bank, a copy of which is as follows: "$19.20. "ETNA MILLS. BOSTON NATIONAL BANK, Boston, September 9, 1869. "Pay to L. W. Chamberlain or J. E. Carpenter or order nineteen 20 dollars. "I. D. FARNSWORTH, Treasurer." was held to be the check of the Etna Mills, and therefore binding upon the corporation, and not the treasurer, Farnsworth, personally. Opinion of the Court. In Sayre v. Nichols, 7 California, 535, a draft, of which the following is a copy: "$3000. "ADAMS & Co.'s EXPRESS AND BANKING HOUSE, No. 2123. Mormon Island, Feb. 21, 1855. "Pay to A. G. Sayre, or order, three thousand dollars, value received, and charge same to account of this office. "C. P. NICHOLS, "per G. W. COREY, Agts. "To Messrs. Adams & Co., Sacramento. "Indorsed: A. G. Sayre, G. W. C." was held to be the draft of Adams & Co., and not the personal draft of the persons who signed it as agents in this case. In Garton v. Union City Bank, 34 Michigan, 279, it was said: "A promissory note made payable to C. T. Allen, cashier, or order, indicates that it was made to him not as an individual, but as a bank officer, and that it was a contract with the bank; and in a suit upon it by the bank no indorsement by such cashier is necessary to the admission of the note in evidence." To the same effect see Mott v. Hicks, 1 Cowen, 513, and cases there cited; Bank of Genesee v. Patchin Bank, 19 N. Y. 312, and authorities cited in Story on Agency, § 154. In 1 Parsons on Notes and Bills, 92, it is said: "If the agent sign the note with his own name alone, and there is nothing on the face of the note to show that he was acting as agent, he will be personally liable on the note, and the principal will not be liable. And although it could be proved that the agency was disclosed to the payee when the note was made, and that it was the understanding of all parties that the principal, and not the agent, should be held, this will not generally be sufficient, either to discharge the agent or to render the principal liable on the note," citing Stackpole v. Arnold, 11 Mass. 27. That case was an action against the defendant as maker of three promissory notes. The notes were signed by another person in his own name, and there Opinion of the Court. was nothing on the face of them to indicate any agency, or that the defendant had any connection with them. At the trial the person who signed the notes testified that they were given for premiums upon policies of insurance procured by him in the office kept by the plaintiff, at the request and for the use of the defendant, on property belonging to him, and that the witness acted merely as the factor of the defendant, and intended to bind him by the premium notes. The judge instructed the jury that, if they believed the notes to have been made and signed for and in behalf of the defendant, the verdict ought to be for the plaintiff." It was held that the evidence was improperly admitted, and the instruction was erroneous. The converse of the rule laid down in the last two cases cited would seem to be identical with that contended for on behalf of the defendant in error. On the other hand, authorities to sustain the view of the case contended for on behalf of the plaintiffs in error are not wanting, either in number or in pertinence. In Kean v. Davis, 1 Zabriskie (21 N. J. L.), 683, a bill of exchange of the following purport, addressed to William Thomson, Esq., Somerville, New Jersey, and indorsed "The Elizabethtown and Somerville Railroad Company, by John Kean, President:" "$500.00. ELIZABETHTOWN, Sept., 1841. "Six months after date, please pay to the order of the Elizabethtown and Somerville Railroad Company, five hundred dollars, value received, and charge as ordered. "Your obed't serv't, JOHN KEAN, "President Elizabethtown and Somerville R. R. Co." was held to be ambiguous on its face, not clearly showing whether John Kean individually or the railroad company was the drawer, and proof was admitted, in the language of the court, "not to aid in the construction of the instrument, but to prove whose instrument it is." To the same effect see Chadsey v. McCreery, 27 Illinois, 253; Vater v. Lewis, 36 Indiana, 288; Hood v. Hallenbeck, 7 Hun (N. Y.), 362. Opinion of the Court. Mechanics' Bank v. The Bank of Columbia, 5 Wheat. 326, is also claimed to be an authority in favor of the position taken by the plaintiffs in error. This was an action of assumpsit brought by the bank of Columbia against the Mechanics' Bank of Alexandria on the following check: "No. 18. MECHANICS BANK OF ALEXANDRIA, "Cashier of the Bank of Columbia, June 25th, 1817. "Pay to the order of P. H. Minor, Esq., ten thousand dollars. WM. PATON, Jr." It was contended by the defendants that the check on its face was the individual check of Paton, and that evidence could not be received to show that it was in fact the check of the bank, and signed by Paton as cashier. On the other hand, the plaintiffs contended that the check upon its face did not purport to be the private check of Paton, but the check of the bank, drawn by him as cashier, and that the presumption was, that it was an official act. The court, however, decided that the check was ambiguous upon its face, that the marks indicating it to be the check of the bank predominated, and that the only ground upon which it could be contended that the check was the private check of Paton was that it had not below his name the initials for cashier. It was accordingly held that in such case testimony was admissible to explain the ambiguity and establish who was in fact the drawer of the check. The court say: "But the fact that this appeared on its face to be a private check is by no means to be conceded. On the contrary, the appearance of the corporate name of the institution on the face of the paper at once leads to the belief that it is a corporate and not an individual transaction, to which must be added the circumstances that the cashier is the drawer and the teller the payee, and the form of ordinary checks deviated from by the substitution of to order for to bearer. The evidence, therefore, on the face of the bill, predominates in favor of its being |