Noyes v. Loring

Walton, J. The remedy against one who fraudulently represents himself as the agent of another, and in that capacity undertakes to make a contract binding upon his principal, is an action on the case for deceit, and no an action of assumpsit upon the contract. Long v. Coburn, 11 Mass., 97; Ballou v. Talbot, 16 Mass., 461; Jefts v. York, 4 Cush., 371; Abbey v. Chase, 6 Cush., 54; Jefts v. York, 10 Cush., 392; Smout v. Ibery, 10 Mees. & Welsb., 1; Jenkins v. Hutchinson, 13 Ad. & El., N. S. 744. The gist of the action in such cases is not a failure to keep and perform a promise, but a false representation. Why then should the injured party be allowed to bring an action of assumpsit? If one without authority undertakes to make a contract for another, the contract is necessarily void. It is not the contract of the principal, for the pretended agent had no power to bind him. It is. not the contract of the agent, for in making it he did not attempt to bind himself. How then can such a contract be the basis of a suit? Very clearly it cannot. Nor should the injured party be allowed to waive the special contract, waive the tort, and recover upon an implied assumpsit, for such a form of declaring gives the defendant no notice of the real cause of complaint against him. Take, for instance, the declaration in this case. It contains nothing but general indebitatus assumpsit counts on an account annexed. Who, on reading such a writ, would ever suppose that the real ground of complaint against the de [412] fendant is- that he undertook to make a contract for the town without authority ? It may not indeed seem unjust that the party who has undertaken to contract for another without authority should be held to perform the contract himself. In fact the law seems to have been so held in an early case in New York. (Dusenberry v. Ellis, 3 Johns. Cas., 70.) It was there held that one who without authority signed a promissory note as attorney for another was personally bound to pay it. But the inconsistency of such a doctrine, to use no stronger term, will be apparent by supposing that instead of a promise to pay money, the pretended agent had signed a promise that his principal should marry the plaintiff within a given time, or do some other act which it was perfectly competent for the principal to perform, but which the agent could not. What would be thought of a declaration charging the pretended agent as a principal in such a case? It is undoubtedly true that if a person falsely represents that he possesses an authority which he does not possess, and another is injured by such misrepresentation, he is liable ; but the remedy should be sought in a proper form of action. The plaintiff should not be allowed to allege neglect to keep and perform a promise, and then recover for a false and fraudulent allegation of authority. But the plaintiffs claim that, inasmuch as the labor which they performed was beneficial to the defendant, he ought to pay for it; and that they may waive the tort, if any, which the defendant committed, and recover the value of their services in an action of assumpsit. No case has been cited in which such a course has been allowed; and, in Jones v. Hoar, 5 Pick., 285, the Court say that the doctrine, that the injured party may waive the tort and bring assumpsit, is allowed only to this extent, that one whose goods have been taken from him or detained unlawfully, whereby he has a right to an action of trespass or trover, may, if the wrongdoer sell the goods and receive the money, waive the tort, affirm the [413] sale, and have an action for money had and received for the proceeds. So, if one acting as the agent of another without authority, receives money, and has not paid it over to the principal, it may be recovered back in an action for money had and received. Jefts v. York, 10 Cush., 392. But it is only in favor of the action for money had and received, which has been likened in its spirit to a bill in equity, that the rule is relaxed that the evidence must correspond with the allegations, and be confined to the matter in issue, and this relaxation, by which a party is allowed to aver a promise and recover for a tort, being a departure from principle and the correct rules of pleading, ought not to be extended to new cases. Our conclusion therefore is, that the ruling of the presiding Judge, to which exception is specially taken, namely, " that, if the defendant represented himself as an agent of the town, authorized to contract for them, and did so contract, and was not so authorized, he might be liable in another form of action, but not in this,” was correct. The other rulings of the presiding Judge, reported in the bill of exceptions, seem to require no further notice than to say that they are in accordance with well settled principles of elementary law, and, so far as we are able to judge from the brief report of the evidence contained in the bill of exceptions, were pertinent to the issue. Exceptions overruled. Judgment on the verdict. Appleton, C. J., Kent, Barrows, Daneorth and Tap-let, JJ., concurred.