J. & J. Proctor v. Webber

| Vt. | Aug 15, 1822

By the Court.

This case comes .before the Court on a motion for a new trial, made by the defendant, on- two grounds:

1st. That on the trial the Judge admitted the note on which tile plaintiffs had declared, to be given in evidence to the Jury, to which the defendant had objected, on account of a variance between the note described in the declaration, and the note produced on trial.

2dly. On an exception to the charge of the Judge, who charged the Jury, that in point of law the Corporation were not made liable by the execution of the note, as it was not under their seal. That a Corporation can be bound only by their seal, or by a vote duly recorded ; and, of course, cannot be liable in an action of assumpsit on a special contract. And that whenever a person undertakes to bind a Corporation as their agent* either by specialty or simple contract, and fails of rendering the Corporation liable, for want of authority in himself, as their agent, he renders himself liable in his private capacity.

The question arising from the exception to the evidence, the reading of the note to the Jury, is involved in the question arising under the exception to the charge of the Judge. For if the defendant did not, as agent of the Corporation, render them liable to pay the note, he rendered himself liable, and the plaintiffs properly declared on the note according to its legal effect. If by the execution of the note the defendant did render the Corporation liable to pay it, he is not himself personally liable, and the plaintiffs are not entitled to recover. For, as remarked by the plaintiffs’ counsel, no distinction can be taken in this respect, between the execution of a specialty and a simple contract. In both cases alike, if the person executing the instrument, as agent, do not bind his principal, he binds himself personally; and the statement in the contract that he is agent, shall be taken as descriptio personae, or as surplusage. And as the evidence given to the Jury on the part of the defendant, to prove his agency and authority to bind the Corporation, was by the charge of the Judge -withdrawn from the consideration of the Jury, and rendered of no importance in making up their verdict, it is unnecessary to inquire into the sufficiency of that evidence; ancj the only question presented for the consideration of the Court under the motion for a new trial is, can a Corporation by their authorized agent, make a promissory note or other contract, not under their seal, on which a special action of assumpsit will lie against such Corporation ?

The Court are unanimously of the opinion, that if the defendant was, in point of fact, directed by the Corporation, as their agent, and in their behalf, to make and execute promissory notes, for the payment of demands against the Corporation, he was duly authorised, in point of law, to do so; and the Corporation are liable to pay the note in question. Consequently, this action cannot be maintained against the defendant.

New trial granted.

N ote. — This case having been decided before provision was made for the reporting of the decisions of the Supreme Court, the opinion of the Court al length could not be obtained. This is a subject of regret, as the question involved in the case is of great importance. It is one of those cases involving the question, shall the Engli; h common law prevail, or the American law ? and what is the American law as applicable to the case? I have therefore thought that it would not be wholly useless or unacceptable to the profession, to subjoin a note, setting forth tie rule of the ancient common law as applicable to this case, and containing a number of modern cases decided in the Courts of Great Britain, shewing a progressive alteration of the rule, together with a collection of American case*, shelving that the ancient rule of the common law has been wholly set aside, and a new rule settled, better adapted to the present stale and condition of our country. Agreeably to this rule the above case was decided by the Court. See the note at the end of the reports in this volume.