14 Vt. 195 | Vt. | 1842
The opinion of the court was delivered by
The only question arising in this case is whether the defendants are personally liable upon this note. In order to come at any very satisfactory conclusion in regard
1. And I will say, in limine, that if this is the express personal contract of the defendants, for one I am not inclined to hold that the plaintiff is precluded from maintaining the action, because he is himself a member of the association, and ultimately liable to contribute something towards indemnifying the defendants. I believe this naked proposition not maintainable in its full extent. If the plaintiff were himself liable to refund, in some other form, the whole amount of the judgment here recovered, such liability, to prevent circuity of action, might be relied upon in defence. But that is never the case where he is liable, incidentally, in some way, for a portion only of the amount recovered. I think the modern decisions will justify us in getting over this objection, although there are many cases to the contrary. Such a case is not like one sueing a firm of which he is himself a member, where he must be both plaintiff and defendant. But this point is, perhaps, doubtful in the mind of the court, although we do not lay any stress upon it,
2. Neither do we incline to decide this case against the plaintiff on the ground, that even if the defendants did exceed their authority, the action against them should not be upon the contract, but a special action on the case. We think the better opinion, upon this subject, is, that an agent, who undertakes to bind a principal by simple contract, but without authority, does bind himself. Meech v. Smith, 7 Wendell, 315. This is just and reasonable and most of the cases are in accordance with it; but all are not. Ballou v. Talbot, 16 Mass. 461. In regard to contracts under seal, especially where the agent attempts to convey land without authority, a special action on the case may be the most appropriate, perhaps the only remedy. Clark v. Foster, 8 Vt. R. 98. But this remedy goes upon the ground of a virtual fraud.
3. We come to consider some other grounds, upon which the claim is attempted to be maintained. 1. It is said the question of intention is one of fact, and should have been so decided. This question does not arise in the present case, as the issue of fact was joined to the court, and it does not appear that the court did not so consider the question of in
2. A class of cases is referred to, and relied upon by the plaintiff, where persons have contracted (usually under seal) as administrators, executors, or guardians, and have been held personally liable. These cases, as far as I have examined them, have been cases of covenants in deeds, conveying land. Such are the Massachsetts cases cited. The reason of these- decisions is very apparent. The persons had no authority to enter into any such contracts, in their official capacity, hence they bound themselves personally. But had they had any authority to contract in their official capacity, they could not have been held personally liable. Macbeath v. Haldimand, 1 Term R. 172. Hodgson v. Dexter, 1 Cranch, 345. The case of Bunnell v. Jones, 3 B. & Ald. 47, at first blush, seems a strong one in favor of the plaintiff. But, upon examination, it will be found reducible to the same principle with the others above alluded to. The defendants contracted expressly £as solicitors’ of the assignees of a
3. Another class of cases, very extensive, and of very undeniable authority, has been urged upon our consideration as governing the present case. These .are cases where one contracts under seal, professedly on the part and behalf of another, but signs his own name and affixes his own seal. Here the agent has been held personally liable. This is upon the ground that if one executes a contract, under seal, on the part and behalf of another, and does not intend to bind himself, personally, he must execute the contract in the name and affix the seal of the principal, otherwise the agent will be personally holden. It is upon this ground that the cases of Appleton v. Binks, 5 East, 148, Wilks v. Backs, 2 East, 142, were decided. It is not material whether the contract be signed, ‘ James Brown by Mathias Wilks, or Mathias Wilks for James Brown,’ but the contract must appear to be executed in the name of the principal, else the agent will be liable. Spencer v. Field, 10 Wendell, 88, is of the same character. The contract was under seal, and in the name of the agent. It should be A. B. (the principal) grants &c., by his attorney, C. D., and not C. D., as attorney for A. B., grants. So Stone v. Wood, 7 Cowen, 453, is to the same effect. The contract is under seal, and the agent contracts in his own name and seals with his own seal.
4. The case of Mott v. Hicks, 1 Cowen, 536, cannot be made to operate much in favor of the plaintiff; for the defendant is there made liable upon his special guaranty, and not upon the note which he executed in the name of the company. The court held him not liable upon the note, but that the company were liable.
5. The cases of Hills v. Banister, 8 Cowen, 31, and Brockway v. Allen, 17 Wendell, 40, cannot, I think, be
We return then to the two propositions with which we started. If the defendants are liable, it must be upon one of these grounds; either that they did intend to contract personally, and so expected the plaintiff to understand it, or else, in the contract which they did make, did exceed their authority.
1. Was it the understanding of the parties that the defendants did assume a personal responsibility in regard to this note ? I think nothing more obvious than that no such thing was in the most remote apprehension of any of the parties, i. e. either the plaintiff, or defendants, or the company. 1. The company wished to make the purchase. 2. The plaintiff’s offer in writing to make the sale is addressed to the company, and concludes, £ the property to be considered so much stock, paid in advance.’ Does this seem consist
I come, lastly, to consider what is, perhaps,Jthe most reasonable ground of argument that these defendants should be held personally liable upon this note, i. e. that in giving it they exceeded their authority. For convenience, I have often spoken of the defendants’ contract as a note, which indeed, strictly and technically, it is not. In giving a construction to this contract, we may, and, indeed, must, take into consideration the subject matter of the contract, the time, place, and manner of its execution, and the other writings connected with the same contract, and the defendants’ authority and character.
1 The plaintiffs were willing their property should go as
Judgment affirmed.