24 Vt. 222 | Vt. | 1852
The opinion of the court was delivered by
It is admitted in this case, that the services were rendered, and expenditures made by the plaintiff, as allowed by the auditor. But the defendants claim that they are not account■able to the plaintiff; that they never employed him, and.that no privity of contract exists between them. We learn from the case that the plaintiff was employed by one John M. Burdick, to perform these services, but it is insisted that Burdick acted as the agent of the Bank in so doing, and was authorized to employ him for that purpose, and whether he was such agent or not is the question in the case. If he was the agent of the Bank and employed the plaintiff as such, the account was properly charged to
Regarding this question in that light we are led to see whether the facts reported by the auditor, authorized Burdick to employ the plaintiff to perform those services for the Bank. We find 'from the report that the Bank first applied to Burdick to get the stone conformable to a model which he had furnished, and also to ■do the work. Burdick refused either to get the stone or do the Work, as he was at work upon the Railroad and could not do it. In this, it is evident that Burdick refused to place himself in the position of a contracting party in relation to that work.- When therefore, they next inquired “ if he could not see to the getting out the stone and doing the job” they could not have intended to have made a virtual renewal of that proposition which he had just declined, and when Burdick replied, “ that he knew men whom he could employ to do the work and would see to it as much as he could without neglecting his business on the Railroad,” he evidently did not suppose he was contracting a relation which he had just before refused to take upon himself. It could not have been so understood by either of the parties, and when the Bank told him to go on, get out the stone, and do the job, they could have expected only that he should employ these men for them, and give such ■oversight as he should be able, consistent with his other engagements. If the work on the road prevented him from ever going near the Bank or the work, they had no reason to complain, for he had made no engagement inconsistent therewith. The Bank desired him to employ the men, as better knowing those best qualified and competent for that purpose, and his obligation extended no further than to exercise his best judgment in that respect, and to extend that oversight over the work, that his engagements with the Railroad would permit. ' On these facts, can it be supposed that if the men had refused to do the work, or had done it in an -unsuitable manner, Burdick would have been responsible. He would, if he is to be considered as a contracting party, and to say that he wóuld be liable, would be placing him in a position which he had positively refused to take. He manifestly undertook simply to exercise his best judgment in employing men for them to’ do that work, and to see to the manner in which it was done, if his other engagements would allow.
The law is well settled that “ where an agent makes known his “ principal, or where thez-e az-e circumstances showing at the time, “ that it was understood that he intended to make the contract on “ behalf of his principal, the contract is ezztirely the principal’s, and “the agent incurs no liability.” “And where an act of the agent “ will admit of more than one construction, the court will adopt “ that which will bind the principal, and not that which will bind “the agent only.” Dyer v. Burham, 25 Maine Rep. 13. Story on Agency, § 154. 2 Kent’s Com. 631, 830. 22 Wend. Rep. 244.
The fact stated in the auditor’s report, that other persons employed by Burdick in the same work, wez-e paid by the Bank, exerts a very con'troling influence upon this question. Its effect might possibly have been lessened, if not destroyed, if it had appeared that the payment was made on the account of Burdick. But standing as it does, it is a direct ratification of Burdick’s agency in making such employments, and of their obligation to pay those thus employed. Boulton v. Arlsden, 1 Salk. 234. Paley on Agency, 139. 32 Com. Law Rep. 338, by Tendal, Ch. J.
We think, therefore, Mz\ Burdick must be regarded as the agent of the Bank, and as having been empowered to employ the plaintiff to perform those services for them, for which this action is brought, and that the judgment of the county court must be re