13 Johns. 307 | N.Y. Sup. Ct. | 1816
delivered the Opinion of the court, The law is well settled, that one person cannot seal for another, without express authority, and; it is also settled, that if a person execute a bond as attorney for another, without authority, such person so assuming to act is personally bound, as though he had covenanted in his own name simply, (7 Term Rep.. 207, 3 Johns. Cas. 180. 2 Caines’ Rep. 254. 5 East, 148,).
The case of Tippets v. Walker and others, (4 Mass. Rep. 595.) is similar to the present, in almost every feature., There, a com-' mittee of a turnpike corporation covenanted in their own names, as a committee, to pay far making a road for the corporation, and the question was whether they -werepersonally liable ? Ch. J. Parsons, in delivering the opinion of the court, says, “ if any individuals, who are agents for the corporation, or of any officers of it, will voluntarily stipulate with workmen for .their payirient, it is reasonable that they should be holden to their pon»
Testing the defendant’s plea by these rules, I think it is bad, and the demurrer is well founded.
The defendant represented himself, and assumed to act, as the agent of the directors of the manufacturing company. He is now sued in his private individual capacity; and to exonerate himself, he was bound to aver and prove, that he had authority to seal for his co-directors.
The covenant is not to he regarded as a nullity. The, plaintiff relied on this specialty security. If it does not bind the directors, for whom the defendant represented himself as agent, then it is personally obligatory on the defendant alone; and it is incumbent on the defendant, not on the plaintiffs, to aver and prove the authorization, if any, by which the defendant contracted for Raymond 8/ Hitchcock, or for the company. Whether he had such authority is a. fact for which the defendant alone is responsible ; and he has no right to call on the plaintiffs to prove either the negative or affirmative. The plea Is, therefore, bad, because it contains no such averment, upon which the plaintiffs might have taken issue. If the defendant is not personally bound, he ought, by his plea,, to have shown, that upon this covenant the plaintiffs had a right of action against some other person.
That the plaintiffs were stockholders, or partners, in this manufacturing company, affords no ground to defeat their claim under this covenant.
The plaintiffs are entitled to judgment on the demurrer.
Judgment for the plaintiffs.