Stinchfield v. Little , 1 Me. 231 ( 1821 )

Preble J.

at this term delivered the opinion of the Court, as follows.

In this case two questions are presented for the consideration of the Court. 1. Is the deed declared on, the deed of the Pejep-scot proprietors ? 2. Admitting it not to be the deed of the Pe-jepscot proprietors, is it the deed of Josiah Little, the defendant?

Where a contract is entered into, or a deed executed in behalf of the government by a duly authorized public agent, and the fact so appears, notwithstanding the agent may have affixed his own name and seal, it is the contract or deed of the government, who alone is responsible ; and not of the agent. Unwin v. Wolseley, 1 D. & E. 674. Macbeath v. Haldimand, idem 172. Hodgson v. Dexter, 1 Cranch 345. Dawes v. Jackson, 9 Mass. 490. Sheffield v. Watson, 3 Caines 69. But the same rule does not obtain in relation to the agent or attorney of a private person or corporation. It seems to have been settled or recognized as law in Courts of justice byr judges, distinguished for their wisdom and learning, in successive generations, and under different governments, that in order to bind the principal or constituent, and make the instrument his deed, the agent or attorney must set to it the name and seal of the principal or constituent, and not merely his own. In the year 1614 it was resolved in Combes' case 9 Co. 76. that “when any has authority as an “ attorney to do any act, he ought to do it in his name, who “ gives the authority ;-and the attorney cannot do it in his “ own name, nor as his proper act, but in the name, and as the “ act of him, who gives the authority.” There, however, the act, done by attorney, was the sur/ender in Court of certain copyhold lands, in doing which, as is well known, neither signing nor sealing constituted any part of the ceremony. A case where a question, relating to the receiving of such a surrender, was agitated, came before the Court of K. B. in 1701, Parker v. Kett, 1 Ld. Raym. 658. in which Ld. C. J. Holt seems to be dissatisfied with the rule in Combes’1 case, and expresses an opinion that, though the act were done in the attorney’s own name, provided he had sufficient authority, it would be good without reciting his authority, though not so regular and formal. The rule however, as laid down in Combes’ case is cited by Ld. Ch. Baron Comyn, as good law. Com. Dig. Attorney (C. 14.) and 1 Rol. 330. l. 35. is quoted as supporting it. Upon the same authority it is stated, that if an attorney has a power by writing to make leases, if he makes a lease in his own name, it will be void. This latter principle was recognized as law in 1726 in Frontin v. Small, 2 Ld. Raym. 1418. In that case also the attorney in the body of the instrument for, and in the name, and as attorney of the principal, demised, &c.; but the Court held, that a person, empowered by warrant of attorney to execute a deed for another, must execute it In the name of the principal. In conformity with this decision is the language of Ld. C. J. Kenyon in 1795 in White v. Cuyler, 6 D. & E. 176. “ in executing a deed “ for the principal under a power of attorney, the proper way “ is to sign in the name of the principal.” And at a still later period in 1802 in Wilkes v. Back, 2 East 142. the doctrine, that an attorney must execute his power in the name of his principal, and not in his own name, was recognized by the whole Court, as sound law. The same rule seems to obtain also in the courts of law in this country. Thus in Simond v. Catlin, 2 Caines 66. C. J. Kent not only admits the authority of Frontin v. Small, but adds “ when a man acts in contemplation of law by the author- “ ity, and in the name of another, if he does an act in his own “ name, although alleged to be done by him as attorney, it is void.” So also in Fowler v. Shearer, 7 Mass. 14. C. J. Parsons in delivering the opinion of the Court says, “ if an attorney has

“ authority to convey lands, he must do it in the name of the “ principal. The conveyance must be the act of the principal, “ and not of the attorney; otherwise the conveyance is void. “ And it is not enough for the attorney in the form of the eonvey- “ anee to declare, that he does it as attorney, for, he being in the “ place of the principal, it must be thé act and deed of the prin- “ pal, done and executed by the attorney in his name.” This, it is manifest, is only a combination of the principles of the two cases of Combes and Frontin v. Small, and as such is a recognition on the part of the Court of the law, as laid down in those cases. But in the case of Elwell v. Shaw, 16 Mass. 42. this subject was again brought in review before the court. There the deed in question commenced with a recital at full length of the power of attorney from Jonathan to Joshua Elwell; and the attorney, professing to act only in virtue of that power, proceeds to convey, &x. and then concludes “ In testimony whereof “ I have hereunto set the name and seal of the said Jonathan,” &c. but affixes his oten name and a seal. In delivering their opinion the Court say, it is impossible that any one should doubt the intention of the parties, but, yielding to the weight of the authorities, they held the deed not lobe the deed of Jonathan/ Now, when we advert to the deed under consideration, we find the case of Elwell v. Shaw a much stronger one than the present. There the attorney professing to set the name and seal of the.principal, set a seal, but signed his own name: Here the attorney did not even profess to set the name or seal of the principal but professedly as well as actually set his oxen. It has indeed been intimated in argument that the case of Elwell v. Shaw is an extreme one, bordering at least exceedingly near on the line. Be it so. All cases bordering exceedingly near on the line are extreme cases. We do not rest the decision of this cause upon that case mereljn howrever safely we might do so, but upon ivell settled and established principles in other cases which have been too long and too often recognized to be now called in question. Applying those principles to the case at bar we are of opinion that the deed in question is not the deed of the Pejepscot proprietors.

' This is not the case of a deed good in point of form but void for wrnnt of power in the person assuming to act as attorney. In such a case whether the attorney is bound by the instrument itself, or only responsible in an action on the case, it is not necessary for us now to consider. For the purpose of this inquiry, and in the form in which the question is presented for consideration, it is granted that Little had sufficient authority to bind the Pejepscot proprietors. If he had properly exercised the . powers confided to him, it will be readily admitted he could not have been made personally responsible whatever injury the plaintiff might have suffered for any breach of the covenants contained in the deed. It would then have been the deed of the Pejepscot proprietors and not Little’s ; whereas as the case r.ow j stands', it is not their deed, but his own. Thus C. J. Parker in ‘ Stackpole v. Arnold, 11 Mass. 27. It is also held that, whatever authority the signer may have to bind another, if he does not “ sign as agent or attorney, he hinds himself and no other person.” See also Mahew v. Prince, idem 54. So in Afridson v. Ladd, 12 Mass. 173. “ It is not sufficient that a person in order to dis “ charge himself from a promise in writing, should shew that he “ was in fact the agent of another, but it should be made to ap- “ pear, that he treated as agent, and actually bound his principal by “ the contract.” Nor is it sufficient that the agent describe him-. self in the deed or contract, as acting for, and in behalf, or as attorney of the principal, or as a committee to contractfor, or trustees of a corporation, &c.; for if he do not bind his principal, but set his own name and seal, such expressions are but des ignatio persona , —it is his own act and deed, and he is bound personally. Fowler v. Shearer, supra. Appleton v. Binks, 5 East 148. Tippets v. Walker, 4 Mass. 595. Tucker v. Bass, 5 Mass. 164. Taft v. Brewster, 9 Johns. 334. See also Thacher v. Dinsmore, 5. Mass. 299. Barry v. Rush, 1 D. & E. 691. Sumner v. Williams, 8 Mass. 162. Long v. Colburn, 11 Mass. 97.—Besides, since the deed cannotproprio vigore operate as the deed of the Pejepscot proprietors, the last clause of it might well be considered perhaps as is contended by the plaintiff’s counsel, under a fair construction of it, the personal covenant of the defendant, that the Pejepscot proprietors should acknowledge that instrument to be good and valid, and equally obligatory on them, as though it were their own act and deed. See Mann v. Chandler, 9 Mass. 335.—Appleton v. Binks, and Tippets v. Walker, supra. But without resorting to such construction, we are of opinion that the deed is the deed of Josiah Little the defendant; and accordingly the nonsuit is set aside, and a

New trial granted.

Note. The Chief Justice, having formerly been of counsel with the defend* ant, gave no opinion in this cause.