Gillaspie v. Wesson , 7 Port. 454 ( 1838 )

COLLIER, C. J.

— The defendant in error caused to be issued, a writ, in debt, against the plaintiffs and William W. Garrard, returnable to- the Circuit court of Lauder-dale. The writ was executed on the plaintiffs, and returned not found, as to Garrard.

In his declaration, the defendant, inciting that process had not been executed on Garrard, as to him, discontinued his action, and declared against the plaintiff's in three counts. In the first two, tire cause of action is stated to be a “ written undertaking,” entered into on the twenty-fourth day of May, eighteen hundred and thirty. six, by whioh tho plainfifis and Garrard promised to pay the defendant, \\/ tho i wenty-ilfth clay of December next thereafter, the stun of seventy-five dollars, in consideration of a horse sold the former by the latter.

The third count charged the plaintiffs, together with Garrard, of having purchased from the defendant, on the --- day of-, eighteen hundred and thirty-six, a horse, at the price of seventy-five dollars, to be paid on the twenty-fifth day of December next thereafter.

The plaintiffs in error pleaded — I. Nil debet; 2. A special pica, in which it is drcuwscantially alleged, that the executive of A inhuma, did, on the sixteenth day of May, eighteen hundred and thirty-six, make a requisition on Major General iVUcrsoa, for-companies of mounted infantry, to act against the hostile Indians belonging to the Creek tribe, with the least possible delay. That to enable a compliance with the requisition of the executive, Major General k .itemo:;, did on the-day of the same month, by .hie •.widen order, directed to Brigadier General Garrard, (commanding the second brigade of his division,) by which be required him to furnish, so soon as practicable, tv. o companies of mounted infantry, for the purpose designated in the order of the executive. And that in raising the quota of mounted men required of the second brigade, it was absolutely necessary to purchase some horses. To meet that emergency, and for no other cause, the plaintiffs, with Gar-rard, as officers of that brigade, did purchase the defendant’s horse, raid give him a certificate of purchase. The plea then concludes with a verification.

To the second plea, there was a demurrer, which being sustained, the case went to the jury on an issue to the first, and a verdict was found for the defendant in error.

On the trial, a bill of exceptions was taken by the plaintiffs in error, from which it appears, that the only evidence offered, was a writing of the following tenor :

“Brigade Head Quarters, )

Florence, 24th May, 1836. )

“We have purchased of Claibourne W. Wesson, one horse, at the price of seventy-five dollars, which horse we have purchased on account of the United States, for volunteers now ordered to the Creek nation, as mounted infantry, from the second brigade of the militia of Alabama,. to act against the hostile Creek Indians, — said sum to be paid by the twenty-fifth day of December next.

W. W. Garrard,

Brig. Gen’l 2d Brigade.

I. W. Gillaspie, Col. Com.

Michael Waíduof, Capí.

J. W. Powers, Lieut.”

The admission of this evidence was objected to by the plaintiffs in error, but allowed to be read to the jury. The court being moved to instruct the jury, that upon the testimony, they must find for the plaintiffs in error, refused to do so, and instructed the jury, that the “ writing sued upon was sufficient to charge them personally.”

Two questions have been made for the plaintiff's :

1. Is not the declaration defective, and should not the demurrer to the second plea have been visited upon it.

2. Does tlie declaration or the written evidence read to the jury, disclose a personal liability by the plaintiffs in error?

First — Each count contains a sufficient cause of action. It is, however, insisted, that as the third count set forth a liability not embraced by the statute, which authorises a discontinuance against a defendant not served with process, the defendant in error, by ceasing to prosecute his suit as to Garrard, discontinued the action as to the plaintiffs. The statute referred to is as follows:

“Whenever a writ shall issue against any two or more joint and several obligors, covenanters or drawers, of any such bond, convenant, bill, or promissory note, or against two or more of the defendants to any such joint judgment, it shall bo lawful for the plaintiff or his attorney, at any time after the return of said writ or an alias writ, to discontinue such action against any one or more of the defendants, on whom such writ or alias writ shall not have been executed, and proceed to judgment against any one or more of said defendants on whom said writ shall have been executed, or proceed to issue an alias or pluries writ, at his election.”

It will be observed, that the writ in the case before us, (as appears by its indorsement,) issued against the plaintiffs and Garrard, as the joint makers or “ drawers” of a “ promissory note.” The statute does not require that the declaration should make a literal disclosure, of the cause of action, as it may be shewn by the indorsement on the writ, or the proof given at the trial. It is quite enough, if the cause of action appear from the toril to be such as the statute designates, and the declaration be such as to admit it in evidence. If process issue, ia assumpsit, upon a note, against the mu’xr, a declaration for money had and received, &c. would bo sustained, by the introduction of the note. So, in the ease before ns, the third count might be made out, by the evidence that was offered.— There was then, no error in not sustaining the demurrer to the declaration.

Second. — Talcing, as strictly true, every thing stated in the paper read to the jury, and there is no pretence for saying that the plaintiffs were government agents. Conceding that the first of the promisors was a brigadier-general of tlie second brigade of the militia of the State — the second, a colonel — the third, a captain — ■ and the fourth, a lieu tenant; that the second brigade had its head quartern at Florence ; that the purchase of the horse was made, on account of the United States, for volunteers ei dared, as mounted infantry, to be marched to the Greek nation, to operate against the hostile Creek Indians; — and yet it will not appear, that the plaintiffs contracted as agents, or that the defendant was to look alone to the justice of the government for pay. It is well known, that the organization of the army of the United States does not permit the militia officers of a State, upon a requisition for troops from the War Department, to purchase such supplies as they may deem proper, or even indispensable. The-only duty devolving upon them in such an emergency, is, to comply with the order making the requisition, either by accepting volunteers, or making a draft where a sufficient number cannot be found willing to offer their services. When the troops thus raised are placed under the cont-rol oribe mili Un«Moer.; o- Me s.nMrnl government,then, and not uoo: ter, decs Me <4 ty erd authority of au officer of supplies, acting m.uor M..¿ govu-ameat, directly commence.

In order lo rol i.-ve a w assuming to act as an. agent, from personal res» ousILúliíy, it ia necessary that he should have been authorised to act, and that the credit should have been given to the principal; and there is no difference between the agent of an individual, and the government.—(Daseabury vs. Ellis—3 Johns. Cases, 70 Perkins vs. The Washington Insurance Company—4 Cowen's R. 659; see also. 13 Johns. R. 1; 3 Caine’s 69—1 Cowen's R. 513; 12 Johns. R. 444; 1 Cranch’s R. 345.) Co, if a pwmu a: Wmtahos to contract, as an agent, anti so ooatvm te as to impose no legal obligation upon his principal, he, Mm self, is personally responsible. (Mott vs. Hicks—1 Cowens. R. 513; Sutherland’s opinion, and cases cited by him.) t

But, if the plaintiffs did not intend to assume a personal liability, why do they stipulate with the defendant, that “ said sum (is) to be paid by the 25th December nest ?” No appropriation had then been made to defray the exponeos of tiro CVeeic campaign; and it was quite uncertain whether any would be made by the day the defendant was to be paid, hi view of this circumstance, as well as an absence of nil proof showing the plaintiffs’ authority, wo are constrained to consider their signatures as officers of the militia, as merely a descripiio person anan.

In Taft vs. Brewster, (9 Johns. R. 334,) the defendants executed a bond by the style of the “ iTrustees of the Baptist Society of the lorn. of Richfield.” The court held, that the bond was given in their individual capacities; and that the addition of trustees, &c. was a mere description of the persons. (See also, Thatcher vs. Dinsmore—5 Mass. R. 299; Foster vs. Fielder—6 Mass. R. 58; Wilkes, et al. vs. Back—2 East’s R. 142; White vs. Cuyler—6 T. R. 176.)

Again: We think it dear, from an examination of the authorities, that an agent, when sued upon a contract made by himself can only exonerate himself from personal liability, by showing his authority to bind those for whom he has undertaken. It is ■ not for the plaintiff to show his want of authority by proof — by the contract, the defendant has affirmed it, and it is incumbent upon him, according to a well settled rule, to prove it—(1 Cowen’s R. 536, by Sutherland, J.)

The facts disclosed in the special plea, do not, according to the principles we have laid down, constitute any available answer to the action ; and the contract imposing a persona] charge on the plaintiff, the demurrer was rightfully sustained.

The result of our opinion is, that the procedings in the Circuit court are regular, and its judgment must be affirmed.