Fullam v. Inhabitants of West Brookfield

Metcalf, J. The plaintiff cannot support the first count in his declaration. The instrument declared on is not, as is alleged [4] in that count, the contract of the defendants. It is not so executed as to bind them. It is not executed in their names and as their contract, but in the names and as the contract of the individuals who signed and sealed it. Damon v. Granby, 2 Pick. 345. Abbey v. Chase, 6 Cush. 56 ; Huntington v. Knox, 7 Cush. 374, and numerous other cases. As to sealed instruments this is decisively settled. It was suggested, in argument for the plaintiff, that the words “committee for the town,” added to the names of those who executed the instrument, made it a due execution in the name of the defendants, according to the decision in Mussey v. Scott, 7 Cush. 215, where “ John Hammond for B. B. Mussey,” with a seal, was held to be a good execution of a lease in the name of Mussey. But in that case the instrument purported on its face to be Mussey’s contract of letting. It began thus : “ I, Benjamin B. Mussey, do hereby lease, demise and let unto Seth Scott,” &c. That case, therefore, is not relevant. See Haven v. Adams, 4 Allen, 87, and Hutchins v. Byrnes, 9 Gray, 367. The committee, having. failed to bind the town, are themselves liable for any breach of their personal contract. Tippets v. Walker, 4 Mass. 595. Simonds v. Heard, 23 Pick. 120. By Story, J., 7 Cranch, 307. Appleton v. Binks, 5 East, 148. Burrell v. Jones, 3 B. & Ald. 47. Tanner v. Christian, 4 El. & Bl. 591. Parker v. Winlow, 7 El. & Bl. 942. The plaintiff’s main reliance is on his second count, in which he alleges the contract to be that of the defendants, and that they have prevented him from completing it. And he takes the position, that although the defendants may not be liable on the express contract executed by their committee, yet that they are liable ex consequenti, on an implied contract, for the breach of that express contract. The first case in which we find this doctrine advanced is Randall v. Van Vechten, 19 Johns. 60. In that case, the three defendants, who were a committee appointed by the city of Albany, made an agreement with the plaintiff, to which they signed their names and affixed their individual seals engaging to pay to him certain sums for surveying that city making maps thereof, &c. To an action of covenant again» [5] the committee, on that agreement, one defence made by them was, that they executed that agreement as agents of the city, and were not individually liable for a breach of it. And so the court decided, and nonsuited the plaintiff. And it appears, from subsequent decisions cited by the plaintiff’s counsel, and from others referred to in 30 Barb. 223, to be the law of New York — contrary to the law of this commonwealth and of England — that when an agent, whether of a corporation or of an individual, duly authorized to make a contract for his principal, which does not require a seal, makes the contract in his own name and under his private seal, and in terms that purport his private obligation, yet he is not personally liable for a breach of it, if the contract be for the exclusive benefit of the principal. In Randall v. Van Vechten, the court, after deciding that the plaintiff could not recover, expressed an extrajudicial opinion, that as it appeared in evidence that the common council of Albany, by formal resolves, recognized, adopted and ratified the agreement of the committee, and had made various payments to the plaintiff, on his presenting bills for his services and expenses, charged to the city and not to the committee, he had a remedy for any breach of the agreement made with the committee by an action of assumpsit against the city. In the case of Bank of Columbia v. Patterson, 7 Cranch, 299, a duly authorized committee of the bank made an agreement with Patterson, under their private seals, that the work done by him in erecting a building for the bank should be measured and valued by two men named, and that the committee would pay to him the sum found by those two men to be the value of his claim. An action of indebitatus assumpsit for work and labor done, quantum meruit, &c., brought by Patterson against the bank, was sustained on the grounds stated by Story, J., who said that though an action might have lain against the committee personally, yet as the contract was for the exclusive use and benefit of the bank, and as the evidence showed that the bank proceeded on the faith of that contract to pay money, from time to time, to Patterson, the jury might legally infer that the bank had adopted the contract of the committee, and had voted [6] to pay the whole sum which should become due under it, and that Patterson had accepted their engagement. The same doctrine was recognized in Bank of the Metropolis v. Guttschlick 14 Pet. 19. In the case of Damon v. Granby, 2 Pick. 345, a committee of the town of Granby, by their writing obligatory, sealed with their seal, agreed with the plaintiff that he should build a house for public worship, and that they would pay him therefor. In an action of debt against the town, to recover pay for the plaintiff’s services and expenses in building the house, it was decided that the town was not liable on the contract made with the plaintiff by the committee — that the contract could in no sense be construed to be the deed of the inhabitants of the town. But it was said by the court that they were inclined to think that if the plaintiff had brought assumpsit upon the contract, alleging his expenses incurred under it, and that the defendants had prevented his executing it, and that he had acted bona fide, and was in no fault, he might have recovered due compensation for his labor, expenses, &c. And the cases of Randall v. Van Vechten, and Bank of Columbia v. Patterson, were referred to as satisfactory authorities. In Dubois v. Delaware & Hudson Canal Co. 4 Wend. 285, (recognized in Worrall v. Munn, 1 Selden, 229, and Ford v. Williams, 3 Kernan, 585,) it was decided that when an authorized agent makes a contract in his own name and under his private seal, which contract is for the sole benefit of the principal, and which is not required to be under seal, it is to be deemed the simple contract of the principal, on which the proper action against him for a breach thereof is assumpsit. In that case, as in Bank of Columbia v. Patterson, the action was brought to recover pay for services rendered under the agent’s agreement, and the counts were indebitatus assumpsit for work and labor, quantum meruit, &c. We are now asked to adopt the doctrine of the foregoing cases, so far as to sustain the present action of contract against the defendants. This we cannot do. The doctrine is anomalous and was resort 3d to by the courts of New York in consequence [7] of their having rejected the common law remedy against the agent personally, and for the purpose of giving some remedy against the principal, which the plaintiff would not otherwise have. As we adhere to the common law remedy in a case like the present, the plaintiff needs no new remedy and can have none at our hands. The obiter dicta in Damon v. Granby cannot be sustained. No additional weight is given to the decisions on which the plaintiff relies, by the insertion of the doctrine thereof in legal treatises, however eminent may be their authors. We need not express an opinion concerning the extrajudicial dicta in Randall v. Van Vechten, and the decision in Bank of Columbia v. Patterson, because they are not applicable to this case. These defendants have never ratified or adopted the contract of their committee, nor done any act from which their promise to perform it can be inferred. Nor have they received any benefit from it. And if it were possible to maintain an action against the defendants for their preventing him from completing his contract with their committee, by obtaining an injunction against him, it is clear that it could not be maintained on his second count in this action, which alleges that contract to have been made by the defendants. If we had adopted the doctrine which the plaintiff asked us to apply to this case, we see not why the argument of his counsel would not have been satisfactory, that the doctrine is as well applicable to this executory contract as to contracts executed wholly or in part, to which it was applied in the cases cited by them. The plaintiff’s remedy, if he has any, is against the committee. If he shall proceed against them and recover damages, “ they must,” as said by Parsons, C. J., 4 Mass. 598, “ look to their principals for indemnity ’’ . Judgment on the verdict for the defendants.