(dissenting). I dissent and vote to affirm. We all agree that the bargaining agreement executed in the name of Weiss & Schwartz Fur. Corp., a new York stock corporation, by its president, Harry Weiss, and its secretary, Ben Schwartz, was fully binding on the corporation.
We disagree as to whether the signature of Harry Weiss concededly affixed in his representative capacity as president of the corporation also had the effect of binding him personally so as to render him individually liable for the default of the corporation in meeting its contract obligation to pay its employees vacation time. The answer depends on the effect to be given the word “ Member ” appearing as part of the printed form contract. A majority are about to decide that the juxtaposition of the printed word11 Member ” to the corporate signature creates a personal liability.
Although the contract document supplies no definition of the term “ members ” as used therein and although the usual meaning attributed to a member of a stock corporation is a stockholder entitled to vote (General Corporation Law, § 3, subd. 15), a majority nonetheless assert that “ Furriers may attach in their contracts a different meaning to member of a corporation than legislators ’ ’; that ‘ ‘ What the union wanted was some responsible person, individual or corporate, who would pay in case of breach of contract.” (P. 6.)
On this record we must disagree with such premise. We do not deny the desirability of the salutary purpose to be served but as the court at Trial Term succinctly pointed out: “ it is the contract which is before the court that must be construed and not a contract which could have effectively done so.”
*10It is axiomatic that to bind one as an individual, acting in a representative capacity, the proof must be clear and convincing that he intended to assume and create such an individual obligation — it is not what the other party may have thought or expected — absent which the parties with whom he deals may look only to the principal for performance (Keskal v. Modrakowski, 249 N. Y. 406; Ell Dee Clothing Co. v. Marsh, 247 N. Y. 392). As we .long ago said, and have had no occasion to repudiate: “ When an agency is disclosed, and the contract relates to the matter of the agency, and is within the authority conferred, the agent will not be personally bound, unless upon clear and explicit evidence, of an intention to substitute, or to superadd his personal liability for, or to, that of the principal.” (Hall v. Lauderdale, 46 N. Y. 70, 74.)
Here the document on its face indicates that it was signed in a representative capacity only, bearing, as it does, the corporate name, the signature of the authorized officer and his designated title of president. The juxtaposition of the printed word ‘ ‘ Member ’ ’ appearing on the document in front of the signature does not change the situation so as to create individual liability, particularly, since the parties made no attempt to define the word ‘ ‘ member ’ ’ and in the light of the uncontradicted testimony that at the time of execution of the instrument Weiss intended to sign only on behalf of the corporation. The latter testimony, although received over objection, was entirely competent since the plaintiff was attributing significance to the word “ Member ” so as to qualify the signature as creating individual liability (Thurston v. Cornell, 38 N. Y. 281, 287; Hernandez v. Brookdale Mills, 194 App. Div. 369, 380).
The remaining point — that the agreement, when executed, had the effect of binding Weiss as a “ member ” because the corporation was acting as Ms agent — is wholly without merit under the circumstances of this case. It is true that a corporation may act as agent for an individual principal (Jones v. Gould, 200 N. Y. 18; Meyer v. Redmond, 205 N. Y. 478; Shoenthal v. Bernstein, 276 App. Div. 200). However, such rule is not available here. We are bound by the language of this contract. We may not supply deficiencies. There is nothing within its terms indicating that the Weiss & Schwartz Corp. was acting as *11agent for Weiss as a disclosed principal, absent which Weiss may not be held in his individual capacity.
If this be not enough, it may also be noted that no consideration whatsoever runs in favor of Harry Weiss as an individual, absent which no enforcible obligation was created.
The judgment appealed from should be affirmed, with costs.
Lewis, Ch. J., Desmond, Froessel and Van Voorhis, JJ., concur with Conway, J.; Dye, J., dissents in opinion in which Fuld, J., concurs.
Judgments reversed, etc.