19 Barb. 74 | N.Y. Sup. Ct. | 1854
By the Court,
There is no evidence tending to show that the defendant, when the account charged against his mother commenced, consented that it should be charged to. him, or said any thing tending to make him liable for the carding or cloth dressing. He stated that the wool belonged to his mother, and the account for the carding and cloth dressing was opened with her, and so continued until 1849, when it was settled by her note, executed in her name by him as her agent. The evidence then shows simply that the defendant took wool to the shop of the plaintiff to be carded and cloth to be dressed, and stated that they belonged to his mother; the work was executed, and charges made against the mother of the defendant. Upon the trial no evidence was given, other than the declaration of the defendant, tending to show whether he was or was not the agent of his mother authorized to make her liable for the carding and cloth dressing. The plaintiff’s counsel insists that when any one w'ho has professedly acted as an agent is sued, touching the contract so made, he is to be held liable, unless he shows in his defense that he was such agent, and had authority to bind his principal, thus giving a cause of action against his principal. In short, that the onus is upon him to' show his agency and authority, and not upon the plaintiff to show that he acted without authority. The counsel cited several cases. Mauri v. Heffernan (13 John. 58) is not in point. The reporter extracts from the case that “ a party who would excuse himself from responsibility, on the ground that he acted as the agent of another, ought to show that he communicated to the other party his situation as agent, and that he acted in that capacity, so as to give a remedy over against his principal.” In White v. Skinner, (13 John. 307,) the action was covenant upon articles of agreement inter partes. The names of the defendants and two other persons present were inserted in the agreement as one party, adding, “ as directors of the Granville Cotton Manufactory.” It
In Randall v. Van Vechten and others, (19 John. R. 60,) cited by the plaintiff’s counsel, the question ure are considering did not arise. The defendants were a committee of the city of Albany, and the court held that enough was shown on the trial to make the city liable. True, it was shown by the defendants, that the form of the contract was sufficient to make them liable; but the principles of the contracts of public agents were applied to them, and they having shown that they acted for and in behalf of the city, were held not to be personally liable, though the form of the contract was sufficient to make them liable. Hothing can be extracted from this case applicable to the question we are considering. Judge Platt delivered the opinion,
These cases do not decide the question presented in the present case. The books are full of cases showing the duties and liabilities of agents. An agent may make himself personally liable, by entering into the contract himself, personally. He is personally liable for contracts which he makes, without disclosing his agency. Story says, that when ■ an agent executes a deed or other instrument, in the name of his principal, he is not personally bound. And that when he makes an oral or verbal contract as agent for another, and at the same time names his principal, he is not personally bound. (Story on Agency, § 263.) Here the fact of agency is assumed. In - the next section he says, whenever a party undertakes to do an act, as
Suppose the contract in this case should be stated in the complaint, with an averment of the. want of authority, and the defendant should deny the allegation of the want of authority, and
Marvin, Bowen and Greene, Justices.]
Again, suppose the action against the defendant, as in this case, upon the account for the work and labor, and the plaintiff proves the agreement made by the defendant, assuming to act as the agent of Alida, and then stops, can he recover ? I think not. (See Id. §§ 253 to 257.) Ex parte Hartop, (12 Ves. 350,) is referred to by Story and other writers on agency. The chancellor says, when the agent names his principal, the principal is responsible, and not the agent. This does not reach the difficulty.
In Wilson v. Barthorp, (2 Mees. & W. 863,) the defendant had drawn a bill in the name of a firm, and the court held that he could not be made liable, without some proof that he had no authority to draw the bill, or that he had not acted bona fide. This case is in point.
In the present case, the evidence showed that the charges were made against Alida Milk, and that the defendant executed, in 1849, a note in her name, for the balance of the account. Up to this time the defendant’s statements were, that the wool and cloth were his mother’s; that he lived with her and carried on the farm. There was no evidence to negative the truth of these statements. But the plaintiff was permitted to prove, under objection, that in 1852 he said he owned the farm and all the property, and that his mother stayed with him and did his work. For what purpose was this evidence given? Was it to show fraud by the defendant ? This might all be true in 1852, and not affect the truth of his representations prior to 1849. I think this evidence was improperly received.
I think the judgment of the justice was properly reversed, and that the judgment of the county court should be affirmed.
Judgment affirmed.