In the case of indorsers of bills and notes the whole doc-

trine of terms descriptio personce seems to have broken down.

The indorsement of the payee or subsequent holder is neces-

sary to transfer the title to the paper ; the addition of the

term " agent " is indicative that the indorsement is in a repre-

sentative capacity for that purpose ; and the courts have prac-

tically arrived at the conclusion that where tlie instrument is

payable to " A. B., agent," and indorsed "A. B., agent," that

it may be shown that A. B. was acting as agent for an un-

named principal: for example, "A. B., treasurer;"" " A. B.,

1 Walker v. Bank, 9 N.Y. .582.

2 Nicholls V. Diamond, 9 Ex. 154; Jones v. Jackson, 22 L. T. R 828.

8 Soughegan Nat. Bk. v. Boardman, 46 Minn. 293, 29G (dictum).

4 Okell r. Charles, 34 L. T. R. 822.

^ Hager v. Rice, 4 Colo. 90.

^ Robinson v. Kanawha Valley Bank, 44 Oh. St. 441.

в– ^ Babcock I'. Beman, 11 N. Y. 200; Soughegan Nat. Bk. v. Boardman,

46 Minn. 293.

248 AGENT AND THIRD TAKTY.

agent of tlie P. Q. Co.;"^ "A. B., cashier." ^ And some cases

have gone to the length of lioldnig that in a note payable to

"A. B., sec. and treas.," signed '' P. Q. Co., A. B., sec. and

treas.," and indorsed " A. B., sec. and treas.," the indorsement

was conclusively that of the P. Q. Co.^

The conrts have not always distinguished between cases in-

volving the liability of a maker or drawer or acceptor, and

cases involving the lial)ility of a payee indor.ser, and needless

"anarchy" has resulted from the confusion.* The distinction

is, however, a valid one and is supported by the decisions.

Indeed, the supposed distinction between "A. B., cashier," and

"A. B., agent," is largely if not wholly explained by the fact

that most of the cases holding the signature " A. B., cashier,"

to be the signature of the bank of which A. B. is shown to be

cashier, are cases of indorsement;^ where this was not the

case the instrument bore the name of the bank upon the

margin;^ or it was a case in which the bank brought suit

upon a bill or note in which "A. B., cashier," was named as

payee."

§ 195. Same. — Summary.

It will be seen that the vexed question is, what creates an

ambiguity on the face of an instrument? In their desire

to render negotiable instruments certain, and to avoid deciding

that an ambiguity exists, the courts have reached exactly

opposite conclusions as to the legal effect of practically

1 Vater v. Lewis, 36 Ind. 288; Nichols v. Frothinghain, 45 Ue. 220.

2 First Nat. Bk. ;;. Hall. U N. Y. 395.

3 Falk V. Moebs, 127 U. S. 597.

4 See Falk v. Moebs, 127 U. S. 507, 60G. See Grafton N. B. v. Wing,

172 Ma.ss. 513.

5 Bank of Genesee v. Patchin, 13 N. Y. 309, 8. c. 19 N. Y. 312; Bank

of New York v. Bank of Ohio, 29 N. Y. 619 ; Folger v. Chase, 18 Pick.

(Mass.) 63; Garland v. Dover, 19 Me. 441; Houghton v. First Nat. Bk.,

26 Wis. 663; Bank of the State v. Wheeler, 21 Ind. 90 ; Arnold v. Swen-

8on, (Tex.) 44 S. W. 870.

6 Mechanics' Bank v. Bank of Columbia, 5 Wheat. (U. S.) 326; ante,

В§ 192.

7 Baldwin v. Bank, 1 Wall. (U. S.) 234; Nave v. First Nat. Bk., 87

Ind. 204 ; ante, В§ 135.

LIABILITY IN CONTRACT. 249

identical instrnmcnts. No stronger evidence is needed to

prove that such an instrument is ambiguous. If reasonable

men may differ as to the meaning of an instrument, a case

of ambiguity is raised which should be determined by the aid

of extrinsic evidence. The following rules seem to be justified

by an examination and comparison of the cases : —

(1) An ambiguity is not created merely by words descrip-

tive of agency added to the signature, except (a) where there

are two signatures and the one with the descriptive words

follows the other, and (6) in cases of indorsement.

(2) An ambiguity may be created by recitals or marginal

memoranda, disclosing the name of the principal, which,