Gill v. Brown , 12 Johns. 385 ( 1815 )

Thompson, Ch. J.,

delivered the opinion of the court. This is JO ^ - ■ . . an action ot assumpsit to recover compensation for the use of 1 i y-, 7 7 TT n1 . x ,rw1 the schooner brold Hunter, belonging to the plaintiff. The vessel was, in point of fact, employed in the service of the United States; and the only question in the- case is, whether, under the circumstances, the defendant is personally responsible. It was matter of general and public notoriety, that the defendant was a quarter master, acting in behalf of the United' States. Whether, in this particular case, he contracted in that capacity, is the point under consideration- There can be no-doubt that an agent may make himself personally responsible, if he is willing, and will undertake so to do; and it is equally clear, that if an agent means to incur no personal responsibility', he must act within the scope of his authority, soras to give a remedy against his principal-.

From the facts in this case, it appears that the schooner had been seized by the collector, previous- to her being employed in public service, and was taken by the defendant without the consent either of the collector or the plaintiff, and put into public service, in April, 1813. in September following, the defendant agreed with the plaintiff, that, i-f he would get the vessel into his own possession, exonerated from the seizure, he, the defendant, would purchase her, at the appraisal of men, and would pay him for her previous use in the service of the United States. The plaintiff, accordingly, on paying 400 dollars, procured the schooner, discharged from the claim growing out of the seizure, and she- was delivered to the defendant at the appraisal; and the claim now is for the use of the vessel, according to the defendant’s promise. Here, then, is an express promise by the defendant to pay, and made-under such circumstances as renders him personally responsible. There is nothing in the case showing that it was the understanding of either party, that the plaintiff was to look to the government for payment. The simple facts, that the defendant was quarter master, and that the services performed were for the United States, were not sufficient, when opposed to the express and unqualified' promise of the defendant^ to exonerate him front-personal liability.

■ íñ the. casé of Sheffield v. Watson, (3 Caines’ Rep. 72.) ih& court say it is not enough that the plaintiff kneW the defendant to be. a public agent, and that the frigate built by the plaintiff was to be a public vessel; but it should appear that the defendant contracted in his official capacity, and on áócount of the United States, and that the plaintiff gave credit to, and intended to look to the government alone for compensation- If the principles of this ease be adopted, the defendant is clearly liable ; and, indeed, the present -is a much stronger case, for here is an express promise to pay¿ " i ■

An examination of this class of cases will.show that they all turn upon the question, to whom was the credit intended tti be given ? The reasoning of the court in Callen v. Queensbury, (1 Brown’s Ch. Rep. 101. note,) shows,, pretty strongly, the injustice and unfitness of too easily listening to,an objection like the present, and turning round the party from the person with Whom he contracted, to those he may choose to set up as his principals. In Hodgson v. Dexter, (1 Cranch, 363.) it is státéd and. admitted by the counsel on both. sides,. to be a question of intention; and the court recognise that - position as correct, ,and they go into án examination of the circumstances to ascértáin the intention, and observe that the whole agreement manifests, very clearly, a, contract made entirely on public account, without a view, by either party,, to the responsibility of Dexter ; and this will be found to be the principle which runs -through all the cases in the English courts on this" subject. ■ Independently of the express promise made by. the defendant, this case furnishes, other" strong circumstances to show that he ought tó be personally responsible. The schooner . was; taken out of the possession., of a public officer of. the United States. For. what cause she had been, seized does not appear and it is very questionable, whether the government would have, con-sidered themselves bound to pay for the use of the vessel whilst under this seizure. This, at least, was so doubtful, that it is not very probable the plaintiff meant to look to the government; nor does, the maimer in which this vessel was taken, without the permission of either the collector or the- plaintiff, appear to have been within the scope of the defendant’s authority as a public agent; and, if not, the act might not have been,sanc-> tioned by the government, nor the defendant’s promise ratified and performed. No objection growing out of the statute of frauds can be raised against the right of recovery. If the defendant is personally responsible, there was a sufficient consideration to support the promise. The plaintiff procured the vessel to be discharged from the claim of.the United States by virtue of the seizure, for which he paid 400 dollars; and this1 was done in pursuance of, and according to, the contract between the parties. Here was, then, an actual loss to the plaintiff, in consequence of the defendant’s promise, and as the consideration therefor, which is sufficient to support the promise,, whether the defendant received any personal benefit or not, In whatever point of light, therefore, the case is considered, the plaintiff is entitled -to judgment.

Judgment for the plaintiff.