44 N.H. 196 | N.H. | 1860
As we have seen, in Weare v. School District, before reported, the agents had no authority to bind the district by a promissory note, and, striking out those parts which they had no authority to put there, and which represent them as contracting for the district, if such there be, there are clearly apt words to bind them individually, and to bring this case within the principle of our decisions. Underhill v. Gibson, 2 N. H. 352; Savage v. Rix, 9 N. H. 268; Woodes v. Dennett, 9 N. H. 58; Pettengill v. McGregor, 12 N. H. 191; Moore v. Wilson, 26 N. H. 336; Bank v. Flanders, 4 N. H. 239.
But, while admitting the general principle in its full force, the defendant’s counsel suggests a distinction between the case of an agent who exceeds his authority, and a case where he simply executes the authority which the principal attempts to confer, but which he has no power to confer. In the latter case he contends that the agent is not bound, because both parties are able to judge of the capacity of the principal to confer the authority in question. But we are unable to find any authority for such a distinction, or to perceive any sound principle upon which it can be placed. There may be cases where the general principle does not apply, as where the promisee, being fully informed of the facts upon which the assumed authority rests, forms his own judgment, and contracts for and relies upon the engagement of the principal alone. In such a case it would be unjust that the agent should be bound, because such was not the contract; nor could the promisee object that the words purporting to charge the principal were improperly used, inasmuch as they were so used with his own assent, and with a full knowledge of the circumstances affecting the authority so to do. This view finds some countenance from the case of Smout v. Illsbury, 10 M. & W. 1, and also in Story on Agency, sec. 265, and cases cited.
But such is not the case before us, for it is neither shown that the town had knowledge of the true state of the defendant’s authority, or that it contracted only for the promise of the district, but so far as the facts are disclosed it is the ordinary case of a promise by an agent without authority to bind the principal, and in language which, stripped of what he had no right to place there, imports a promise by himself. In such a case, by the well settled law of this State, an action may be maintained against the agent directly upon the promise itself. Such also is said to be the law of New-York; Story on Agency, 3d ed., p. 322, note 2, and cases cited; and the same doctrine is held in other States. Clark v. Foster, 8 Vt. 98;
Judgment for the plaintiffs.