Opinion · Supreme Court of North Carolina

Delius v. . Cawthorn

13 N.C. 90

Type: Opinion
Court: Supreme Court of North Carolina
Jurisdiction: North Carolina
Date: 1829-06-05
Topic: general

(90) FROM WARREN. "Six months after date I promise to pay G. D. and G. W. G., or order, $78.25 in North Carolina money, for value received, as witness my hand and seal, this 3 June, 1826.

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Cited by: 5 opinions

DELIUSv. CAWTHORN,13 N.C. 90(1829)

GEORGE DELIUS and G. W. GLOSTEIN v. GORDON CAWTHORN.

Supreme Court of North Carolina

(June Term, 1829.)

(90) FROM WARREN.

1. An agent acting under a parol power can not bind his principal by deed.

2. But a bond executed by an agent thus constituted is not the bond of the agent, and the fact that he exceeded his authority does not subject him to an action as the obligor. The only remedy against him is by a special action on the case.

3. A bond is the act of the person whose name and seal are affixed to it, and can not be rendered the deed of another by the averment of a collateral fact. Per HENDERSON, C. J. But he who makes a parol contract in the name of another, without sufficient authority, and receives the consideration, may be declared against as a contracting party, because the promise attaches to the consideration.

DEBT upon bond, and on the trial before STRANGE, J., on the last circuit, on the plea ofnon est factum, the case was that the defendant, being the clerk of one Robert R. Johnson, in the town of Warrenton, was sent by him to Petersburg, in Virginia, to purchase goods. The defendant, as agent of Johnson, purchased goods from the plaintiffs upon the credit of Johnson, and executed to them a bond, of which the following is a copy, and on which this action is brought:

"Six months after date I promise to pay G. D. and G. W. G., or order, $78.25 in North Carolina money, for value received, as witness my hand and seal, this 3 June, 1826. ROBERT R. JOHNSON, By Gordon Cawthorn."

The bond was entirely in the handwriting of the defendant, who had no written authority, under seal or otherwise, from Johnson to execute it; neither did he at the time say or pretend he had such authority. The goods purchased by the defendant, and for which the above bond was given, came to the possession of Johnson.

The jury, under the directions of his Honor, returned a verdict for the plaintiff, and the defendant appealed.

Seawell, for the defendant.

(91) Badger, contra.Hillman in reply.

TOOMER, J.

This is an action of debt, and the plaintiffs declare upon the instrument, as the writing obligatory of the defendant, who pleadsnon estfactum, and issue is thereon joined. The contract must be set forth in the declaration in the terms of it, or according to its legal effect.Page 591. Chitt. Pl., 299. It is usual to follow the words of written contracts.Ib., 302.

Every contract should be so construed as to give effect to the intention of the contracting parties, if such intent can be ascertained from the face of the instrument and be not repugnant to any principle of law. Agreements should be enforced according to the sense in which they were mutually understood, when they were made. This rule for the exposition of contracts tends to advance the ends of justice, (97) and to subserve the purpose of the parties. The nature of the transaction, the language of the specialty, the mode of its signature and sealing, all conclusively show that it was clearly understood by the parties to this suit that the defendant was not to be personally bound by the deed. The defendant did not intend to bind himself, nor did the plaintiffs believe that he was bound. It is said the inquiry is not as to the intent with which the act was done; but what was the nature of that act, and what are its legal effect and consequences. Let it be observed that the act frequently receives its impress and character from the intention of the parties at the time of its execution. It is true, if there be any stubborn principle of law which makes this instrument the deed of the defendant contrary to the intent of the parties, the hardship of the case cannot prevent its application.

This instrument is technically and formally drawn to bind Johnson, the principal, and on its face he appears to be bound. The specialty, on its face, gives no cause of action against the defendant. The intention to find the principal is obvious; and the manner of executing the instrument is in strict accordance with the technical form prescribed, both by law and usage, to give effect to such intent.Wilks v. Back, 2 East., 142. But Johnson, the principal, was not bound by the specialty, because the authority of the agent was not created by deed, and power to bind the principal by an instrument under deed can only be delegated by deed. Coke Lit., 52, a;Shamburger v. Kennedy,12 N.C. 1; 7 Term, 209. "The attorney who executes a power by giving a deed must do it in the name of his principal; and the attorney is not bound, even though he had no authority to execute the deed, when it appears on the face of it to be the deed of the principal." 2 Kent Com., 498. Here the specialty was executed in the name of the principal, and (98) on the face of the instrument that principal was bound. These positions lead to the conclusion that the instrument having been executed in the name of Johnson, without proper authority, is void.

But the plaintiffs were not without remedy against that person with whom they intended to contract. The defendant had been constituted by Johnson, his agent, to purchase goods. In the execution of that agency he bought goods of the plaintiff in the name of Johnson and forPage 60his benefit, and they subsequently came to his use. The plaintiffs could have recovered the value of the goods in an action ofassumpsitagainst Johnson. The defendant had authority to make the purchase for his principal and to bind him by the contract; and the subsequent acts of Johnson would have confirmed and ratified that contract had the precedent authority been defective. There was nothing, I apprehend, either in the making of the instrument, or in the receiving of it by the plaintiffs, which could extinguish the contract or defeat their right of recovery in an action ofassumpsit.

Had the defendant been guilty of any fraud in making the contract — had he, to obtain the goods, corruptly concealed the truth, or knowingly represented a falsehood, there is no doubt he would have been personally liable to the plaintiff in an action on the case. 2 Kent Com., 494;Long v. Colburn,11 Mass. 97; 16Ib., 461. But the statement of the case imputes no moral guilt to the defendant. The execution of the instrument is ascribable to mistaken notions of his power. But it is to be inferred from some of the cases that the assuming to act without authority is a fraud in the eye of the law. If the mistake be mutual — if it be common to the parties to this suit, each possessing a full knowledge of all the facts and circumstances connected with the transaction — then the plaintiffs, consenting thereto, and being actors and participators therein, cannot complain,volentinon fit injuria. But if the act be exclusively the effect of (99) defendant's mistake, and the plaintiffs, being ignorant of the circumstances, have sustained damage thereby, it is believed a special action on the case can be maintained against him for assuming to act without power. 2 Kent Com., 494;11 Mass. 97; 16Ib., 461. But on this point it is not necessary to express a judicial opinion.

The specialty was signed, sealed and delivered in the name of Johnson, for his act and deed, by the defendant, as his agent. It was accepted by the plaintiffs, and on its face it appears to be the deed of Johnson. The present action can only be sustained by making the instrument the deed of the defendant. Is there any principle of law which can so entirely defeat the intentions of the parties and pervert the truth of the transaction as to change the nature and character of the instrument, and make it the deed of the defendant? The plaintiffs say the instrument is not a nullity; it is the deed of some person; and if not the principal's, it must be the agent's; that the defendant had no authority to execute a deed in the name of Johnson, and by exceeding his power, or by assuming to act when he had no power, he is not only personally liable to make compensation to the plaintiffs, but the instrument becomes his deed, or he is bound in the same way, and responsible in the same form of action, as the principal would have been, had thePage 61deed been duly executed with full power, and was obligatory on him. It is admitted that the defendant had no authority to bind Johnson by deed; and that the defendant for thus assuming to act, had it been done without the full knowledge and consent of the plaintiffs, would be personally liable to compensate them for the loss sustained; but it is denied that the instrument becomes the deed of the defendantbecauseit is not the deed of Johnson; and the action cannot be maintained on the pleadings, unless the instrument is the deed of the defendant.

It is believed the elementary writers, in speaking of the personal liability of the agent, because he has no responsible principal, (100) do not mean to convey the idea that the instrument becomes the deed of the agent when it had been signed, sealed and delivered in the name of the principal, who was bound on its face, merely because the agent had exceeded his authority, or had acted without authority. But they intend simply to declare his personal responsibility, which may be enforced by bill in equity on the ground of fraud or by special action on the case. 2 Kent Com., 494. Formerly the remedy was by bill in equity; latterly by action on the case. This appears to be the ground of proceeding inHorsley v. Bell, Ambler, 769, 772;Meriel v. Wymondsel, Hard., 205;Cullen v. Duke of Queensbury, 1 Bro. Ch. 101;Johnson v.Ogilby, 3 P. Wms., 277; 1 Fonbl., 295.

There are many decisions, both English and American, in which the agent has been personally bound, on the ground that the language of the contract created a personal undertaking — imported a personal responsibility; where the agent bound himself personally, although in the contract he gave himself the description or character of an agent.Appleton v. Binks, 5 East., 148;Tippetts v. Walker,4 Mass. 595;White v. Skinner, 13 Johns., 307. But it is not pretended that this principle applies to the case now before the Court.

The two cases ofDusenberry v. EllisandWhite v. Skinner, which have been referred to by the plaintiff's counsel to support the position that the defendant, having acted without authority, is personally bound by the specialty in the same way as if he had executed it in his own name, without any allusion to his principal, are entitled to much respect; and I differ from them with much hesitation.Dusenberry v. Ellis, 3 Johns. Cases, 70, is a case of parol contract; but otherwise not to be distinguished from the case now under adjudication. It is there said that if the agent sign a note in the name of the principal, (101) but without authority, the agent shall be bound in the same manner as the principal would have been had it been duly made with full power; and the name of the principal shall be rejected as surplusage. Was there no circumstance to make me question the correctness of this decision I should refuse it my assent with great reluctance, and wouldPage 62most unwillingly ascribe to it a departure from principle. But this case was decided in 1802; and in 1814Long v. Colburn,11 Mass. 97, was decided on a note signed in this manner: "Pro William Gill, J. S. Colburn"; and Judge PARKER, in giving the opinion of the Court, says: "The defendant is not the promisor"; "the plaintiff's remedy is against Gill, if Colburn had authority to make the promise for him; and if he had not, a special action on the case might make Colburn answerable;" and a nonsuit was entered. Judge PARKER did not think that Colburn could be made liable as apromiseron thenote, had he acted without power in making it; but he must be made responsible in aspecial actionon the case. This decision occurred twelve years after that ofDusenberry v. Ellis, and is, at least, of equal weight and authority. I can not suppose the New York adjudication was unknown to Judge PARKER, I must, therefore, look upon it as virtually overruled by him.White v. Skinner, 13 Johns., 307, was an action of covenant, brought on a specialty, signed and sealed in this manner: "For the directors, Reuben Skinner, L. S." There was a private association or firm known by the style of "The Granville Cotton Manufacturing Company," of which Skinner was president and director. On the face of this instrument no person was bound but Skinner, the defendant. He did not sign the name of each director and annex the seal to each name. If he had full power to bind them the mode of executing the instrument (102) did not make it obligatory on them. The contract purported on its face to bind the defendant. No other person was bound by its terms. The defendant personally undertook that others should perform, and the judgment was correctly rendered against him. And if you view the defendant as a partner the result must be the same. The name of the firm was not signed; and if signed, copartners have no common seal; the name and seal of each should be affixed by some person specially authorized to do the acts. For being a partner gives no authority to execute a deed for the other members of the firm. The case is unlike the one now under the consideration of this Court. But Judge PLATT, in delivering the opinion of the Court, extra judicially observes: "If a person execute a bond as attorney for another, without authority, such person, so assuming to act, is personally bound as though he had covenanted in his own name." I have found no English Adjudication to support thisdictumof Judge PLATT. He refers to 7 Term., 206, and 5 East., 148. They appear to me to furnish no basis for such a doctrine. However respectable the source from which it flows, I must question its correctness; and the more especially as the decision was made in 1816, and ChancellorKentpublished in 1827 the second volume of his commentaries, in which it is said: "The attorney is not bound, even though he had no authority to execute the deed, when it appears on thePage 63face of it to be the deed of the principal"; "there is a remedy against him by a special action on the case for assuming to act when he had no power."White v. Skinner, supra, so far as it bears on the one now before the Court, contains only anobiter dictumof Judge PLATT. I have found no English decision supporting it; and it seems that eleven years after the opinion was expressed it was not recognized as authority by ChancellorKentfor the purpose for which it has been cited.

The Supreme Court of Massachusetts, at October Term, 1820, inBallou v. Talbot,16 Mass. 461, expressly decided that the (103) defendant having signed a promissory note, and added to his signature the words, "Agent for David Perry," did not make the defendant liable as on his own promise; and if he acted without authority from Perry, that circumstance could not make it the promise of defendant; but he would be responsible for a special action on the case. The decision inLong v. Colburnis reexamined and confirmed. Chief-Justice PARKER delivers the opinion of the Court, and supports it with able reasoning. Let it also be remarked that this adjudication was made more than four years subsequently to the decision of Judge PLATT inWhite v. Skinner, which had been decided at August Term, 1816.

Under these impressions, and with this view of the cases on the subject, I cannot consent to render judgment against the defendant.

HALL, J.

There is no dispute in this case about the sealing and delivery of the bond, but only in regard to signing it. He who signed his name to it,ashis deed, adopted the seal.

If a name appears to be signed to a deed adopting the seal, it must be the deed of such person or the deed of no one. It cannot be the deed of one whose name is not signed to it.

When the principal's name appears to a deed or other instrument, written by his agent, purporting to adopt the seal, that instrument must be the deed of the principal, or the deed of no one. If the agent was authorized to sign it, it is the deed of the principal; if he was not so authorized, it is not his deed. It cannot be the deed of the agent, because it does not purport to be so. On the contrary it purports not to be his deed, and he does not adopt the seal. The terms in which it professes to have been executed declare it to be the deed of the principal, and not that of the agent. Therefore to make it the deed of the (104) agent is against the evidence furnished by the instrument itself.

It has been insisted that the want of authority in the agent to sign the principal's name makes it the deed of the agent.

I have always understood that the question whose a particular deed is (if anybody's) must be collected from an inspection of the paper itself.Page 64But if the rule contended for be correct, the question who is the obligor or grantor depends not upon the instrument itself, but upon matter of fact unconnected with the real execution of the deed. The evidence admissible under the pla ofnon est factumshould be confined to the point whether things apparent on the face of the deed, so far as relates to the execution of it, were true and genuine as they appeared to be. If they were not, in any essential point, it was not the deed of the person it purported to be; and as it was not his deed it could be the deed of no other person, because it did not purport to be so.

It is difficult for me to understand how a deed which has but one seal shall be considered to be the deed of one person or another, as facts shall turn out, which are not connected with the two essentials of a deed, signing and sealing — I mean so far as they appear upon its face.

I am aware that there are authorities the other way. It is said to be right that an agent who signs for another without authority should be answerable himself. As a principle of ethics I subscribe to this rule; but it appears to me that he should be answerable in some other action than in one upon the instrument which he has signed as agent in his principal's name.Long v. Colburn,11 Mass. 97.

I can raise no objection toWhite v. Skinner, 13 Johns., 307. The defendant in that case signed for the directors in his own name, (105) and of course he was bound — he undertook for them. If he had signed the name of the directors, and had affixed a seal to each name, and stated that he did so asagent, that case would have resembled this.

Nor in this case likeAppleton v. Binks, 5 East., 148. There the agent signed and sealed the covenant in his own name and with his own seal.

I think the rule for a new trial should be made absolute.

HENDERSON, C.

J. The question whether an instrument, allowing it to be genuine, be a deed must be determined from its face by an inspection of what it imports to be, not from evidencedehorsthe instrument. So whether it be the bond of A or the bond of B must be decided in like manner. No change of character can be given to it by extrinsic evidence. If this instrument be genuine it is the deed of him whose seal it bears, and as seals at present bear no distinguishing mark it is the seal of him whose it purports to be. If it is not his it is not the seal of another, for that would be to change its character by evidence of a collateral fact. If, therefore, it is not the seal of Robert R. Johnson it is the seal of no one; for it purports to be his seal, and not that of another. If he who affixed the seal of Robert R. Johnson to the paper had no authority to do so the person who has been injured by that act may or may not have a remedy against the party thus affixingPage 65it, according to the circumstances attending the transaction. If he who sealed the bond falsely and fraudulently alleged that he had a power to do so I think that he would be responsible for the fraud. But if in fact he pretended to nothing more than a bare verbal authority, and this was understood by the plaintiffs, they have not been defrauded. It was a mere misconception of the powers flowing from a verbal authority, in which misconception they all participated. I cannot assent to the proposition, supported by some very high modern authorities, (106) that if this is not the deed of the principal, for want of power in the agent to seal for him, it is therefore the deed of the agent; although I can well assent to the proposition that in allparolcontracts if the principal be not bound by the agreement the agent is. I mean lawful agreements; for when the consideration, which is necessary to support all parol contracts, passes from the party to the agent, if from any cause it cannot be carried to the principal so as to bind him, it must of necessity rest with the agent; and with whomsoever the consideration rests from him a promise arises. If in truth a person represents himself to be the agent of another, whether under a mistake or with a design to deceive, and he is not, so that theconsiderationnever gets to the principal tobind him, then itrestswith the agent, and he is bound. If in truth he was not the agent, but the principal knowingly receives the consideration, he thereby ratifies the contract, takes the liability upon himself, and discharges the agent. But this is only in cases where the creditor treats with the agentas agent;for if the agent treats with the creditor without disclosing his character of agent, he is personally bound, whatever he may do with the consideration. But the creditor may, if he will, even in such case, treat the contract as one made by the agentas agent, and follow his consideration to the hands of the principal — to him who receives benefit from it. It is in this way I understand what is to be found in the English books upon this subject — that if the principal be not bound, the agent is — that if the agent does not disclose his character he is personally bound — that if his power be defective to bind his principal the agent is bound. I say this with great deference to the decisions of some of our sister States, who have extended the principal so far as to make a deed executed by procuration the deed of the agent if from defect in the power it be not the deed of the principal. I assent to the proposition that if a parol contract be made by an agent be not the contract (107) of the principal, from a defect in the powers of the agent, it becomes the contract of the agent for the reasons above given. I have examined every English authority which is referred to in support of thePage 66above-mentioned cases. I think that they do not support the position for which they were cited.

PER CURIAM. New Trial.Cited: Hite v. Goodman,21 N.C. 365;Sellers v. Streator,50 N.C. 262;Brown v. Bostian,51 N.C. 3;Fisher v. Pender,52 N.C. 486;Brysonv. Lucas,84 N.C. 683;Burwell v. Linthicum,100 N.C. 148;Russell v.Koonce,104 N.C. 241;LeRoy v. Jacobosky,136 N.C. 448.