Dissenting opinion by
Maxwell, J.:I do not concur with the majority of the court. That the assignment to Conley, so far as legal obligation is concerned, is not in its character such as of itself to bind the corporation does not, I think, admit of dispute. The paper executed for the purpose of assignment is not in the name of the company, and is executed by parties who do not in terms claim authority to make it, and there is nothing in it that makes it the act of the company. Towns and Bushnell “ have transferred ” to Conley. This is their individual act, according to fully established law, notwithstanding the words “ President ” and “ Secretary,” which follow. These in such a connection are only words describing the persons, and do not import representative action — in this case more manifest from the fact that they sign the paper, not in the name of the company, but in their individual names, without any official or other designation of agency, and affix their individual seals thereto. Such an instrument,- regarded upon its face alone, cannot be taken as transferring the property of the company in the note and mortgage. It belongs to the class of transactions in which persons acting, or claiming to act, iu a representative capacity, so discharge their functions as to make themselves individually responsible. Among the numerous cases of this character are Barker vs. Mechanic *941In. Co., 3 Wend., 94; Tafft vs. Brewster, 9 Johnson, 334; Stone vs. Wood, 7 Cowen, 453; Tippetts vs. Walker et al., 4 Mass., 594; Bradlee vs. Boston Glass Manufactory, 16 Pick., 337. See also Story on Agency, Section 276.
The assignment itself being insufficient to bind the corporation, I think the allegations of the bill in regard to authority of the “ President ” and “ Secretary ” of the corporation to make it, are not sufficiently specific to hold the demurrer as admitting the authority. I concede that if they were, the complainant would be entitled to his decree. The infirmity of the assignment is not such as to render it totally void, as against the corporation ; but upon due allegation and proof of proper agency in its execution it should be upheld as the act of the corporation, that this may be done, by evidence aliunde, where the instrument itself is defectively executed, is maintained by abundant authority. See among others, Fleckner vs. Bank of U. S., 8 Wheaton, 338; Everett vs. United States, 6 Porter, 166; McWhorter vs. Lewis, &c., 4 Ala., 198; Milledge vs. Boston Iron Co., 5 Cush., 158; Haile vs. Pierce, 32 Md., 327, and Tippetts vs. Walker et al., supra. In the last case it was decided that the persons professing to act as agents were individually liable, and not the corporation, but the court virtually said that if there had been evidence to show the agency of the persons, its decision would have been different.
My conclusion is that the demurrer should have been sustained, with liberty to complainant to amend his bill, if he can, by more definite and certain allegations of the authority of the President and Secretary to make the assignment in question.