| Ill. | Jan 15, 1873
delivered the opinion of the Court:
It is sought to hold plaintiffs in error personally liable to perform the award upon which the action is brought, mainly on the ground that the parties to the submission, by deed inter partes, contracted as principals, and are thereby estopped to deny that they contracted in that capacity. As tending to strengthen this view it is insisted they had no authority to submit the controversy to arbitration except for their own' purposes and on their own responsibility, and the law presumes that they only intended to do what they lawfully might. The position assumed involves a question of fact and one of law.
There is nothing on the face of the papers that indicates that they were executed by plaintiffs in error in any other than their individual capacity. The admitted facts, however, show they acted as commissioners of highways in the steps they took concerning the road referred to in the arbitration proceedings, and that the controversy submitted to the arbitrators related only to the taking of the land of defendant in error for a public highway, which was so taken, all of which was known to him and the arbitrators at the time.
The statute makes it the duty of the highway commissioners, in case they can not agree with the owner, to assess the damages that he will sustain by reason of the construction of a road across his lands. It is a personal duty imposed upon them by law, and they can not delegate it to others. They can not submit such matters to arbitration, simply for the reason the statute has conferred no such power upon them. It is- quite clear the town of which they were officers was in no way bound by theii: action.
There was a total want of authority to bind the town, and both parties are presumed to have been aware of it at the time they entered into the arbitration. The controversy submitted was of a public, not private interest. Plaintiffs in error had no more personal interest in it than any other citizen of the town. They acted in behalf of the public, whom they represented, and they will not be held personally liable unless they have in the agreement used apt words to charge themselves, that manifest a clear intention to do so.
Was there a personal undertaking on the part of plaintiffs in error to perform the award ? It is obvious that no such agreement is contained in the submission itself. That simply submits the interest of the town to arbitration, which it is conceded they had no right to do. Their undertaking is to be found alone in the arbitration bond, and nowhere else. It contains an express covenant to abide by and perform the award, if it shall be made in writing under the hands and seals of the arbitrators and by-the day stated.
It is a proposition too plain to require the citation of authorities to support, that if the award was not made by the day fixed and in the manner prescribed in the conditions annexed to the bond, the obligors would be under no legal obligation to perform it.
No doubt is entertained that the action can only be maintained on the bond, if at all, for it contains the only express agreement to perform the award. If the first count in the declaration is intended to be a count on the bond, it is defective in not averring that the award was made under the seals of the arbitrators, and there is no proof in the record that would sustain such an averment. This was one of the conditions upon which the obligors agreed to perform the award, and the defect is fatal to the right of recovery.
The second count is upon the award as having been made in accordance with the terms of the submission, which does not show any undertaking to perform it such as would support an action. It is not perceived how plaintiffs in error can be held personally liable under the admitted facts, on the principle announced in Wheeler v. Reed, 36 Ill. 91. On the authority of Motts v. Hicks, 1 Cowen, 513, and other cases cited, it was held that where a person undertakes to contract as agent for an individual or corporation, and contracts in a manner which is not legally binding upon his principal, he is personally responsible. This is unquestionably good law, but has no application to the case at bar. A distinction has been taken, which has its foundation in reason and is supported by authority, in favor of public agents acting within the scope of their general powers. When such agents in good faith contract with parties having full knowledge of the extent of their authority, or who have equal means of knowledge with themselves, they do not become individually liable, unless the intent to incur personal responsibility is clearly expressed, although it should be found that through ignorance of the law they may have exceeded their authority. It was so held in Sandborn v. Neal, 4 Min. 126 ; see also Parks v. Ross, 11 Howard, U. S. 374.
The rule established by these cases is a reasonable on'e, and, in our judgment, tends to promote justice. Inferior officers, like commissioners of highways, may be honestly mistaken as to the extent of the power conferred upon them by statute. When such officers, and persons with whom they have official business, in ignorance of the extent of their powers, contract in reference to the duties of their office, and it afterwards turns out that the town, on behalf of which they were acting, was not bound by their action, to hold them personally liable, would be to adopt a most unconscionable rule, that would ensnare honest men who undertake to perform these onerous duties for the public interest without any adequate compensation. The more reasonable doctrine is, to hold that such contracts are not binding on either party; and we think these principles were recognized by this court in Duncan et al v. Niles, 32 Ill. 532" date_filed="1863-11-15" court="Ill." case_name="Duncan, Sherman & Co. v. Niles">32 Ill. 532.
In this instance, it may be all parties concerned believed it was within the just exercise of the powers conferred upon the commissioners of highways to submit the question of damages to arbitration, and when the amount should be found it could be certified to the proper officers for alloivance. This view is strengthened by the fact that one of the commissioners did make a certificate, as in the case of assessment of damages, and gave it to defendant in error to be presented, but for some reason the other refused to sign it, and by the further fact the award is against plaintiffs in error by the description of “commissioners of highways, etc.”
For this mistake in judgment, honestly entertained by both parties, it seems to us it would be a harsh rule that would hold these officers personally liable for the amount of the award. If the town did not adopt the award and pay the damages, defendant in error was under no sort of obligation to surrender his land for public use, and if he did so without first demanding his damages, it was his own folly.
This case bears no analogy to that class of cases where the agent contracts on behalf of an individual or corporation, where the agent is presumed to know the exact extent of his authority in the premises. In the one case his authority is derived from private instructions, and in the other from public laws. The principles which control this class of cases can have no application to the case at bar.
For the reasons given the judgment must be reversed and the cause remanded.
Judgment reversed.