Russell v. . KoonceRussell v. . Koonce
— after stating the case: The demurrer was properly sustained to the defendant’s countеr-claim, and that for the reason stated, that it arose out of transactions ocсurring after the institution of the action, as aрpears upon its face. The refusal to allow an amendment, which, as defendant insistеd, would connect it with the plaintiff’s cause of *241 action, was unreviewable exercise of a discretionary power vested in the Judge. The responses of the jury to the issues submittеd to them, without objection, cover the еntire ground of controversy.
The writings which, as exhibit “A,” аre annexed to the case, were not offered in evidence during the trial, nor were any instructions asked for by the appellant until the jury-,, after hearing the charge, had retirеd, and at this stage of the trial these paрers were offered to be heard and thе presiding Judge declined to receive them. In this there is no error.
The pleadings and the evidence show no personal contract to have been entered into by the аppellant to bind himself to pay for the professional services desired, but he represented himself as authorized by Davis, who had thе benefit, of them, to employ the plaintiff, аnd throughout he professed to act as аgent only. The defendant does not becоme individually liable because his authority to bind his principal is. disowned by the latter, unless the consideration is received by the agent, out of which arises an implied promise to pay.
Potts
v.
Lazarus,
2 C. L. Rep., 83 (180);
Delvies
v. Canthorne,
The present action proceeds upon the idea that, if the prinсipal be not bound, the agent is, for the serviсes rendered ; or, in other words, if the contract does not bind the one, it binds the other. The result in damages may be the-same, but the liability does not rest upon any such foundation, for the obvious reason that no such personal сontract is formed. No objection is made on this score, and we let the judgment stand, as nо exception is taken, but with the explanation made above. There is no error, and the judgment is affirmed.
Affirmed.