Andrews v. Estes

Weston J.

delivered the opinion of the Court, at the ensuing October term, in Penobscot.

School districts are quasi corporations for certain purposes; and among others, for the building and repair of school-houses. Rev. laws, ch. 117, sec. 8. The plaintiff claims of the defendants compensation for building a school-house, in the first school district, south side in Bethel, in virtue of a contract, dated Nov. twenty-eighth, 1831; and the question is, whether they are thereby personally bound. They offered to prove their authority, to enter into and make the contract in behalf of the district, and to pledge their credit.

It is insisted on the part of the counsel for the plaintiff, that the defendants, not having contracted in the name of their principals, have bound themselves; and for this he cites Combe’s case, 9 Coke, 75 ; Frontin v. Small, 2 Lord Raymond, 1418; White v. Cuyler, 6 T. R. 176; Wilkes v. Back, 2 East, 142; Stinchfield v. Little, 1 Greenl. 231; Elwell v. Share, ibid. 339, and Copeland v. the Mercantile Insurance Company, 6 Pick. 198. These are all cases of deeds, and have their origin in the authority cited from Coke, from which has resulted a technical rule, which has often defeated the apparent intention of the parties. We have not found, nor are we aware of any authority, in which the rule in Combe’s case, hits been applied to an instrument not under seal.

In regard to writings not sealed, it is laid down in Stackpole v. Arnold, 11 Mass. 27, and in Arfridson v. Ladd, 12 Mass. 173, that if one makes a written contract, intending to act therein as the agent of another, and to hind his principal, it is necessary that it should appear in the contract itself, that ho acts as such agent. In Tippets v. Walker al. 4 Mass. 592, which was upon an instrument under seal; in addition to the objection that the defendants had not acted in the name, or affixed the seal of their principal, it appeared that they acted without sufficient authority.

The ground upon which Thacher & al. v. Dinsmore, 5 Mass. 299, was decided, will be found to be, that the guardian had no authority to bind his ward, by any promise which he could make; and was therefore personally bound. In Tucker v. Bass, 5 Mass. 164, the cause turned upon another point, which was discussed and decided. The defendant there acted in behalf of the Bluehill turnpike. The writing he signed is not set forth ; but as no objection was taken to his personal liability, it may be inferred that .he gave the plaintiff his own promise ; and did not engage in his character as agent.

Appleton v. Binks, 5 East, 148, was upon a deed, in which the defendant expressly covenanted for himself, that another, in whose behalf he was acting, should pay a sum of money. Nothing is more common than for one man to covenant, that certain things shall be done by another. In Clap v. Bay, 2 Greenl. 305, the plaintiff represented a voluntary association, and he was described in the note declared on, as their treasurer; and it was holden, that the addition was a mere description of the person.

Mayer &f al. v. Barker, 6 Binney, 228, has been cited. It was an action of covenant upon a charter party. The defendant described himself as agent in the body of the deed, but he executed it in his own name. It did not therefore, according to the rule before adverted to, bind his principals. And the Court were of opinion, taking the whole instrument together, and especially its close, that he meant to bind himself personally.

It has been properly contended, that whether the defendants intended to bind themselves or others, must be determined by the terms of the agreement itself, and that it cannot be made out by extraneous evidence. But it does appear to us that the defendants acted throughout as agents. The service was to be performed for the district, which constituted the consideration; the defendants describe themselves as their committee; they promise in behalf of the district, and they sign as a committee.

Not being an instrument under seal, we are of opinion, that the technical rule deduced from Combe’s case does not apply. But if it did, that rule has been modified by the statute of 1823, ch. 220. That statute could not operate retrospectively; but it affects instruments subsequently made; and the contract in question was made since the passage of that act. It was a very proper subject for the interposition of the legislature. It relieved the Courts from the obligation of an arbitrary rule, which often defeated the lawful intention of the parties. They are, by the legislative rule, to look to the instrument to learn what that intention is ; and if it thus appear that it was intended, that the principal or the constituent should be bound, such shall be the effect of the contract; if the agent, attorney, or committee had sufficient authority. Of this the defendants offered competent proof; and we are satisfied that they intended to bind their principals, and not themselves.

Exceptions sustained.