Webster v. Drinkwater , 5 Me. 319 ( 1828 )

Mgiuven C. J.

delivered the opinion of the Court.

The question reserved at the request of the plaintiffs’ counsel, is whether the law implies a promise on the part of the defendant to pay for certain extra work by them done on the vessel, which the jury have found was beyond the terms of the contract, and such as the defendant, as agent, had no right to require. They have found that what,» ever he did in, the premises, was done by him, claiming to act as agent on the part of the United States, though as to such extra work, he exceeded his powers in requiring it; and that he never made any engagement express or implied to pay for it. Still it is contended by the counsel, that in existing circumstances, the law raises a promise to pay this extra expense. It is a principle well settled that a promise is not implied against or without the consent of the person attempted to be charged by it. Whiting v. Sullivan 7. Mass. 107. And where one is implied, it is because the party intended it should be, or because natural justice plainly requires it, in consideration of some benefit received.

The application of these principles is perfectly familiar in those cases where a man is professedly acting in his own behalf, and receives the benefit which is the consideration of promise implied. The point of inquiry is whether the law is the same when the man is acting in a certain transaction as an authorized' superintendent, but in some particular in his demand, exceeds his authority, and yet receives no advantage whatever from those services, for the payment of which it it is contended the law raises a promise; as in the case under consideration.

The terms of the contract, the character in which the defendant was connected with and acted in the transaction we are examining, and, of course, the nature and extent of his authority, were all equally well known to both parties. Both must have supposed that the defendant considered himself as requring no more than he had a right to require, because, after some dispute, his requisitions were complied with. He was the person appointed by consent of all concerned, to superintend the building of the vessel, and see that she should be built in all respects in conformity to the contract. It is not pretended- that in the discharge oi his duty he did not act fairly and faithfully. On the contrary, the proceedings of the plaintiffs in applying to Congress for some allowance, shew that they did not rely on any engagement or liability on the part of the defendant. From these facts tve do not perceive on what grounds a promise can be implied by law. The defendant was in some respects a judge, in business of that kind, and was so considered; and surely his honest opinion and decision ought not to be considered as subjecting him to an action, as upon an implied promise, because he is found to have transcended bis delegated authority in a particular instance. It has, however, been contended by the counsel for the plaintiffs that if an agent, in making a contract, exceed his authority, he must be holden personally as to the amount of the excess ; and sever al of the cases he has cited may be considered as supporting that position, where there is an express undertaking on the part of the agent; and the doctrine so limited, is not contested by the defendant’s counsel. But in the case before us there was no express contract, nor even an implied one, on the part of the defendant, as the jury have found; and his character and duty as superintendant, taken in connexion, with the manner in which he performed that duty, precludes the idea of a promise implied by law, which could bind him. On. what'consideration should such a promise he implied ? The defendant received no benefit from the services performed beyond the written contract; and the plaintiffs were not bound to perform them, and they never pretended that they were performed on the ground of even a supposed liability on his part. It is urged, however, that the defendant may be fairly held chargeable in this action, upon the well known principle, that in many cases a man may, as it is expressed, waive a tort, and seek his remedy for damages occasioned by it, in an action of assumpsit. The general principle is not denied ; nor the authority of the cases cited to this point; but their application to the case before us is denied on two grounds; — first, because in all of them except one, the sum sued for had been actually received by the defendant in money, or in services of which he had received the benefit; and in the excepted case the officer received the tonnage duty without any authority of law, and in the same manner had accounted for it to government; an appropriation he had no right to make, and which sum the party suffering could not obtain from government by any legal process. The second reason is that in the present case there has been no tort committed, and so none could be waived. The defendant-has merely done what ho supposed and believed was his duty, pursuant to the contract, and in the due execution of the powers given him by tbe collector, and assented to by the plaintiff. Again it has been urged that a man cannot be permitted to avail himself of his own wrong; this is a correct general principle; but if he have violated his neighbor’s property or blasted his reputation, he surely may defend himself against that kind of action which the law does not permit to be sustained for redress of the particular injuries complained of.

The jury having negatived the promise alleged, and the facts, as reported, affording no'gróund on which the law will imply a promise, we will merely add that the defendant cannot be adjudged answerable in this action. We have given an answer to each of the arguments which have been urged by the plaintiffs’ counsel, though we might have omitted it; because some of them could have no bearing upon the facts before us; for it must be distinctly remembered,' that the defendant was never the agent on the part of the United States to make a contract with any one ; but was merely constituted, by consent of the -plaintiffs, au agent for the purpose of superintending the execution of a contract, which had been previously made between them and Mr. Collector llsley.

We are all of opinion that there must be

Judgment on the verdict.