Burrington Anthony v. William Comstock

The opinion of the Court was delivered by

Haile, J.

The points stated by the counsel in this cause, and distinctly made in the statement of the case, relate to the legal construction of the paper or receipt signed by the defendant, and a copy of which is annexed to the agreed statement of facts.

By the judicial decisions in New-England, it may be considered as settled law, that this receipt is a legal contract between the plaintiff and defendant; and such a contract as the plaintiff, as Marshal of the District of Rhode-Island, by long usage, might with propriety make with the defendant, under the circumstances of the case.

What then is the legal liability of the defendant in this contract, and the extent of this liability ?

This must be determined by a fair and reasonable construction of the contract, and the proper application of adjudged cases to its interpretation.

The contract of a receiptor of property held under an attachment by an officer, says Chief Justice Parker, in the case of Whitney vs. Farewell, (10 New-Hampshire R. 11,) is a contract sui generis, and the rules which govern it are framed to suit the exigencies of the case.

It is a settled rule of construction of contracts, that the intention of the parties must govern when that in tention can be clearly inferred from the terms of the contract, and can be fairly carried out consistently with the settled rules of law. Now, the intention of the parties to this contract is clearly and definitely expressed ; it is that the defendant should return the identical coal mentioned in said receipt to the plaintiff, on demand, or pay the amount that might be awarded on final judgment in the case referred to in said receipt, together with costs growing out of the libel therein mentioned.

Can this intention of the parties b.e carried out and legally enforced ?

From a careful examination of the authorities, we are of opinion that it may and ought to be ; that there was a valuable and sufficient consideration for this contract.

It was at the option of the defendant to stipulate to return the property to the plaintiff on demand, to respond to the judgment which might be recovered in the suit in which it was attached, or to pay the amount of the judgment.

If he had stipulated simply to return the coal, it would have been .at his option to return the coal, cfc to pay the value of the same.

But the defendant has stipulated to return the coal, or pay the amount of the judgment which the attaching creditor might recover.

The payment of the value of the coal would not, therefore, be a performance of this contract. It is the duty of the court so to construe this contract, as to give legal effect to the whole contract, and to every part of it.

The legal construction of a similar receipt was settled by this court at the September term thereof, 1828, in this county, on petition of Joshua B. Wood vs. Sylvester Hartshorn.

This was a receipt for' printing types attached by Hartshorn as Deputy Sheriff. The types were of the value of $200; and the judgment recovered by the attaching creditor was $ 165.

The receiptor stipulated to return the types or pay $300.

It was decided that the receiptor having refused to return the property attached, was liable to pay the $300.

The whole current of adjudicated cases in the courts of New-England, sustain the decision of this court as law ; and we find no reason for reversing it.

It is competent for the officer and receiptor, as between themselves, to fix upon the value of the property attached ; and the receiptor -is estopped from denying either the attachment of the articles, or their value as specified in the receipt.

The receipt is principally designed for the security of the officer. Clarke vs. Clough, (3 Greenleaf R. 357.)

It was contended by the counsel of the Defendant at the trial, that the liability of the receiptor is limited by the liability of the officer, not exceeding the value of the property attached. But we are of opinion that the authorities cited do not sustain this point.

The valuation fixed by the receiptor and officer, is conclusive as between themselves, whether such valuation be more or less than the actual value of the property ; and parol evidence is not admissible to show that the value is different from that expressed in the receipt in an action by the officer against the receiptor. Parsons vs. Strong, (13 Vermont R. 235.)

■ But the officer’s liability to the attaching creditor is the actual value of the property attached, or the amount of the judgment received by him.

But if the officer passes over the receipt to the attaching creditor, and the creditor accepts it, he thereby ratifies the act of the officer, and substitutes his claim against the officer for a claim on the receipt, and is entitled to the benefit of the judgment which may be recovered against the receiptor, to the extent of his own judgment against the debtor.

It was further contended, that the coal, being a consumable article, was received to be burned, and that the offer by the defendant to return to the Marshal the same quantity of coal, of the same kind and quality, was a performance of his stipulation in the receipt.

There is no doubt that when the owner of a consumable article loans it to another, under an agreement that it shall be returned in a given time, the return of an article of the like kind and quality within the time, is a substantial performance of the contract of the bailee, where the circumstances are such, as that from them it can be fairly inferred such was the understanding of the parties.

But it is competent for the bailor and bailee to contract that the specific article shall be returned. (Story on Bailments, sec. 416.)

And such being the contract of the parties in this case, it should be so construed as legally to carry their intention into effect, and to accomplish the object for which the receipt was taken ; security to the officer.

For it should be borne in mind that the officer was not the owner of this property ; he had only a special and qualified interest in it by virtue of his office, and by force of the attachment. If other than the identical coal should be returned to him, he could not hold it by virtue of the original attachment to respond to the judgment of the attaching creditor; nor could he levy the execution upon it, unless it was the property of the debtor.

It was contended that upon this receipt, taken in connexion with the agreed statement of facts, the defendant was not personally liable ; that he acted as agent of the New Jersey Steam Navigation Company, and that the Company alone were liable.

But though the decisions upon this subject are somewhat conflicting, we think the weight of authority is decidedly against this position.

The defendant by this receipt, does not purport to contract for this company ; nor does the receipt name or refer to the company, except as to the title to the property ; but the defendant stipulates personally, to perform this contract. The word agent;, added to his name, is merely a descriptive epithet, and can hare no definite reference or meaning, unless it can be explained and rendered certain by parol evidence.

If the agent would exonerate himself from personal responsibility, he must at the time of the contract and when the credit is given, disclose the name of his principal.

In contracts under seal, the agent must execute the contract for and in the name of the principal, or the contract will be void. And in written contracts, not under seal, either the agent should execute in the name of the principal, or the body of the agreement should purport, that he contracts in behalf of his principal; otherwise, the agent makes himself personally liable.

And if the agent binds himself personally, and engages expressly in his own name, he will be held re sponsible, though he should give himself the description and character of agent. (2 Kent’s Com. 631, last ed.) Taber vs. Cannon et al., (8 Metcalf R. 456.)

But if parol evidence were admissible to explain this receipt, we do not think that,the facts disclosed in the agreed statement of facts, would legally change the personal liability of the defendant. These facts do not render it probable that the credit was intended to be given to this company and not to the defendant. And it is no way probable that the plaintiff, as Marshal of RhodeIsland, with his customary care and prudence, intended to give credit to a foreign corporation, rather than to a responsible citizen of this State.

But there is no latent ambiguity in this receipt which can be explained by parol evidence. And, if an agent contract in such a manner as to make himself personally responsible, he cannot afterwards by parol evidence, relieve himself from that responsibility, whether the principal were or were not known at the time of the contract. (Chitty on contracts 106.) Thompson vs. Davenport, (2 Smith’s leading cases, notes 254.)

The defendant submits to judgment for $6,386 06 and costs.