Perry v. Hyde

| Conn. | Jul 15, 1834

Daggett, Ch. J.

The defendants, acting, as was supposed by both parties, under the authority of the county court for the county of New-London, employed the plaintiffs to build a bridge in the town of Franklin. The county court had, indeed, appointed them to cause the bridge (o be built ; and they made a written contract with the plaintiffs to perform that service, and to receive a stipulated compensation. It is material to notice, that it appears bn the face of this contract, that the defendants entered into it, as a committee appointed by the county court; and in that capacity, and under, and by virtue of, their appointment ; that the sum stipulated was to be collected of the town of Franklin, and paid by them, in such way and manner as should be ordered and directed by the county court, after the finishing and completing of the bridge, to the satisfaction of the committee; and the whole was to be done at the cost and charge of the plaintiffs and the town of Franklin, and without any expense to the defendants, or either of them.

The only question now is, whether the defendants are personally liable, as the judgment of the county court making this order against the town of Franklint has been reversed, since the expenditures were made.

It will be readily perceived, that this question brings directly into view the doctrine of the liability of agents for contracts made in behalf of others. On this subject, the elementary treatises and books of reports, abound with principles and decisions, which may be deemed to bear, with more or less weight, on the question. A few only of them will be noticed ; and those such as, in my opinion, must decide the point.

1. These defendants profess to act as agents for the public. This was not distinctly denied. They were certainly not acting for themselves, nor for other individuals. They speak of themselves as a committee appointed by the county court, and as contracting to build a bridge for the town of Franklin, and to be paid for, by the town. Indeed, since the case of Adams v. Whittlesey, 3 Conn. Rep. 560. it is impossible to say, that they are not public agents. Whittlesey, in that instance, was declared to be a public agent, by the unanimous opinion of this court ; and all the law regarding that class of agents was applied to him. But he was acting under the authority of the county court, and for the select-men of Fairfield, in relation to a road, which it belonged to them to repair.

It is, however, objected here, that the judgment of the county court was reversed because the process, being commenced and prosecuted by Jacob B. Gurley, as attorney for the State, was void; and being void, all the proceedings under it are void, and cannot, therefore, be said to have existed. The superior court, and this court., in their judgment of reversal, did not so declare. The State v. Franklin, 9 Conn. Rep. 32. It is to be observed, that the county court is a court of general jurisdiction. It could lawfully exercise jurisdiction over the subject matter, and over the person. The process was irregularly issued, and the judgment, therefore, was erroneous. If it be said, as was said in the case of Grumon v. Raymond, 1 Conn. Rep. 40., that the court must have jurisdiction over the process also, the answer is, that this is true only of courts of limited jurisdiction. The doctrine in 10 Coke, 70. (the Marshalsea case,) is, that where there is jurisdiction over the person and the thing, the proceedings are not coram non judice.

But were the defendants bound to exercise more skill and judgment, with respect to their authority, than the plaintiffs ? The authority was publicly given ; the process must be presumed to have been equally within the knowledge of the parties ; and there is no pretence of concealment or fraud. It may then be difficult to declare, that the defendants shall be the sufferers, or that they did not act as public agents.

2. Are the defendants personally bound, acting as agents for the public ? I am aware, that men acting for the public, or for others as individuals, may bind themselves; but I do not believe, that in any case, persons acting as agents for the public, ¡and known as such, and not making themselves liable, by any thing amounting to a personal contract, unless there be fraud, misrepresentation or warranty, can ever be rendered personally liable, even if no other person is liable. I think the doctrine of all the cases supports this position. Paley on Agency 296-7-8-9. Hodgson v. Dexter, 1 Cranch, 345. Macbeath v. Haldimand, 1 Term Rep. 172. Unwin v. Wolseley, 1 Term Rep. 674. Gill v. Brown, 12 Johns. Rep. 385. and especially, the case of Adams v. Whittlesey, 3 Conn. Rep. 560. cited above.

Again ; it is always a question of intention : Is the contract made on public account, or is the individual contracting for himself ? Per Thompson, Ch. J., in Gill v. Brown, 12 Johns. Rep. 388. The learned Chancellor Kent concludes an elaborate examination of the cases, thus : “ But the agent in behalf of the public may still bind himself, by an express engagement; and the distinction terminates in a question of evidence. The enquiry, in all the cases, is, to whom was the credit, in the contemplation of the parties, intended to be given ? This is the general inference to be drawn from all the cases ; and it is-expressly declared, in some of them.” 2 Kent's Com. 633.

But there is, in this case, a controuling fact. The defendants were not only acting fbr the public, and therefore, could not be deemed to contract personally, but the idea of personal liability is excluded. The stipulation on the face of the contract, is, that the bridge is to be built without any expense to them, or either of them. Personal liability is, then, not only not incurred, but expressly excluded. Surely, parties may make such contracts as they please ; and it is the duty of the court to enforce them. In Thayre v. Wendell, 1 Gallis. 40. the attempt was to subject the defendant in his personal capacity, on a covenant entered into by him as executor. The operative words were, “ and in my capacity aforesaid, (that is, as executor,) and not otherwise, I do covenant,” &c. The court held, that the words “ not otherwise," excluded all personal liability ; and Judge Story says : “ The cases which have been cited, seem to me to proceed on this general ground, that no man, acting fairly and openly in alieno jure, and not otherwise, can be made answerable in his private capacity, upon the contract.”

This case was argued at the last term of this court in this county ; and from a desire to come to a satisfactory decision of a case of a novel impression from some peculiarities attending it, we directed a continuance and a further argument. I am now well satisfied, that judgment must be given for the defendants.

The other Judges were of the same opinion.

Judgment to be given for the defendants.