Randall v. Van Vechten

Platt, J. delivered the opinion of the Court. Without scrutinizing the evidence, I incline to the opinion, that there has been no breach of the contract on the part of the plaintiff, and that he has been willing to proceed in the proposed work, without unreasonable delay. The fair construction of the evidence, I think, warrants the conclusion, that the change of times had produced a change of views and wishes on the part of the corporation: that in fact it was inconvenient to make the progressive advances of money ; and deeming it an improvident undertaking, they were willing and desirous to get rid of the contract. But the real question is, whether this is a personal covenant, binding the defendants individually ; or is it a contract which binds the corporation only ? There is a distinction between the contracts of public agents who assume to act on behalf of government, and the contracts of private agents who represent individual persons or corporations. In the first case, although the government cannot be sued, yet the agent is not personally liable ; the public faith is the only security. But in the latter case, the person who assumes to contract as agent for an individual ora corporation, must see to it that his principal is legally bound by his act. For if he does not give a right of action against his principal, the law holds him personally liable. (Tippets v. Walker, 4 Mass. Rep. 595. White v. Skinner, 13 Johns. Rep. 307. 7 Term Rep. 207. 3 Johns. Cas. 180. Caines, 254. 5 East, 148.) In this case, it is perfectly evident, that the defendants contracted in the character of agents for the corporation, in relation to a subject exclusively appertaining to the corporation ; and according to the familiar and well settled rules, applicable to agents and principals, the defendants are not [64] ’personally bound in this case, unless the nature and form ;of the contract be such, as to create no liability on the part of the corporation. The defendants signed and sealed this covenant, and the plaintiff was induced to enter into very onerous engagements, and to make large expenditures. The law will not, therefore, allow the defendants to treat this contract as a nullity: and in order to excuse them from personal responsibility, it is incumbent on them to show, that the plaintiff has a legal remedy against the corporation. In my judgment, they have shown, that for any breach of this agreement, in refusing to pay, orto make advances, the plaintiff has a remedy, by an action of assumpsit, against the corporation. In the case of White v. Skinner, (313 Johns. Rep. 307.) a similar question arose; but there it was a point of special pleading; and the defendant was held liable, because he merely styled himself agent, and did not aver that he had authority to make the contract as agent. Here the question arises as a matter of evidence, under the general issue and notice. At the trial, it was not made a question, whether the corpora ti on had originally appointed the defendants their agents for making this contract. If that point had not been tacitly conceded, we must now presume that a formal power of attorney, or, at least, a resolution of the board of the Common Council, for that purpose, would have been shown. But it is abundantly proved, by several formal resolves of the Common Council, that they recognized, adopted, and ratified this contract, by a variety of acts in express reference to it. They paid 1,000 dollars, in various payments, to the plaintiff, on his presenting his bills for services anA expenses, under this agreement; and these bills were charged, not to the defendants, but- expressly against the corporation. That the corporation, on the one part, and the plaintiff, on the other part, have mutually understood and acknowledged, that they were reciprocally bound, and that they were the real and only contracting parties, is apparent from the whole case. I cannot entertain a doubt, therefore, that these defendants have proved, under their notice, what, in the case of White v. Skinner., the defendant was required to aver in his plea; to wit, that they had law [65] ful authority to bind their principals, according to the terms of the agreement. But it has been contended, that the action against the corporation cannot be in covenant, but can only be in assumpsit, because, it is not a contract under the corporate seal; and that if assumpsit were brought against the corporation, then it would be a good objection, that this contract is under seal; and that the assumpsit is merged in the specialty. This argument, however, is not solid. It cannot be, that the corporation is absolved, because their agents used their private seals, in executing their agency. It is important here, to remark the difference between a corporation and an individual person, acting by an agent. In the one case, there is a corporate seal, which is the only organ by which the body politic can covenant. The seals of these defendants are not, in any sense, the seals of the corporation; but the seal of an agent for an individual person, as his principal, is, in law, the seal of his principal ; and, therefore, it is, that the form of action against the principal, in the one case, (that of a corporation,) is not determined by the form in which the agent contracts ; while in the other case, (that of an individual,) the action against the principal, must correspond with the form by which the agent contracts; whether by seal or by simple contract. Nor will it make any difference, whether the agents for the corporation were appointed under the corporate seal; or by a resolution in their minutes. It may legally be done in either mode ; arid whether it be in the one mode or the other, cannot vary the form of action against the corporation. Where the real party to the contract has affixed his seal, the specialty implies a merger ; and the opposite party cannot waive the covenant, and resort to the assumpsit. But this rule has no application here ; because the corporation have not affixed their seal to this contract. The seals of the agents, are not seals, as regards the corporation. I, therefore, see no bar to a remedy by an action of assumpsit, on this agreement, against the corporation. The old doctrine, that assumpsit will not lie against a corpora [66] tion, is now exploded. (Bank of Columbia v. Administrators of Patterson, 7 Cranch, 297. Danforth v. Schoharie Turnpike Company, 12 Johns. Rep. 227. Dunn v. Rector, &c. of St. Andrews, 14 Johns. Rep. 118.) We are, therefore, of opinion, that the verdict in this case ought to be set aside, and a non-suit entered. Judgment of non-suit.