Hall v. Cockrell

RICE, C. J. By the act of 2d January, 1841, entitled “ an act to incorporate the town of Eutaw in Greene county,” it is declared, among other things, that certain parcels of land therein described shall constitute the corporate limits of the town of Eutaw; that the free white inhabitants, dwelling within the said corporate limits, and their successors forever, shall be a body politic and corporate, by the name of “ the town of Eutaw”, and by that name may have and use a common seal, which they may alter at their pleasure, and may sue and be sued, implead and be impleaded, in any court, and may receive, purchase, and hold property, real or personal, not exceeding fifty thousand dollars in value, and may lease, sell, use or dispose of any such property, in any manner they may-think proper for the use and benefit of said town; that the corporate powers of said town shall be vested in, and exercised by and through, an intendant and four councillors, who, when qualified and elected as prescribed in said act, shall constitute a board, to be called “the intendant and council of the town of Eutaw”; and that the intendant and council of said town are authorized and required to cause the roads, streets, and alleys in said town, to be kept in good order and free from obstructions, &c., &c. — Pamph. Acts of 1840-1, pp. 26-31. The ODly corporation created by that act, was “ the town of Eutaw.” Although the persons who, during any particular period, were the intendant and councillors of said town, were, during that period, authorized to exercise the corporate powers thereof; yet these persons were but the directors and agents of the corporation. In making contracts under color of their authority as such agents, they are not to be considered as public, or government agents, contracting in behalf of the public; but, at most, as agents contracting in behalf of a corporation capable of making contracts, and liable to an action on its contracts. — Simonds v. Heard, 23 Pick. Rep. 120; Story on Agency, (ed. of 1851,) §§ 282, 285, 305; Meriel [512] v. Wymansold, Hardres, 205; Furnivall v. Coombes, 5 Mann. & G. 736-752; Grill v. Brown, 12 Johns. Rep. 385. The instrument executed by them, as the same is set forth in the complaint in the case at bar, is under seal, and to it their names and seals are affixed. It does not purport on its face to be the deed of the corporation, nor to have been executed in its name and behalf. It does not contain any covenant on behalf of the corporation, that it will pay or do any thing. The seal of the corporation is not affixed to it. But, after setting forth in its commencement that the agreement contained in it was made and entered into “ by and between Joseph W. Hall, of the first part, and the intendant and council of the town of Eutaw, of the second part”, and then setting forth the covenants of “the party of the first part”; the instrument proceeds as follows — to-wit: “ In consideration of which said services, the parties of the second part agree to pay the said Hall the sum of three hundred dollars on the first day of January, 1855,”-&c., &c. * * * “The street horse and cart are hereby reserved by the parties of the second part, to be disposed of as they may deem expedient and proper. In testimony whereof, the said parties have hereunto set their hands, and affixed their seals,” &c. Conceding that the corporation may be liable in some mode and in some form of action, yet it is clear it cannot be sued on the instrument, as its deed, — it not being in the name, nor under the seal, of the corporation. — Story on Agency, §§ 147, 148, 149, and cases cited in note 2 to section 149; Dawson v. Cotton, 26 Ala. 591. As the instrument cannot be deemed the deed of the corporation, it will be utterly without any legal effect, in favor of “ the party of the first part”, unless it be construed to be the deed of “ the parties of the second part.” The law will not impute to them the intention to do a void act; but, ut res magis valeat, quam per eat, it will rather be presumed that it was their intention, as agents, to be bound for their principal. They have, in the commencement of the instrument, described themselves as “the intendant and council of the town of Eutaw”; which may fairly be construed as a description of themselves as agents. But the covenants in favor of Hall, contained in the instrument, appear on its face to be the [513] covenants of the individuals who, as individuals, and as the parties of the second part,” entered into them, and wbo as individuals “ set their hands and affixed their seals” to them. In the instrument, there are apt words to charge them personally, when construed in connection with their individual names and seals which they affixed.to it, and with the act incorporating the town of Eutaw. The words, the intendant and council of the town of Eutaw”, as used in the instrument, may well be treated as a mere descriptio personarum; as a mere designation of the corporation, by whose authority and for whose benefit they were acting, and not as intended to exclude a personal responsibility. — Story on Agency, §§ 273, 278, 280, 281; Lazarus v. Shearer, 2 Ala. 724; Simonds v. Heard, 23 Pick. R. 120; Rossiter v. Rossiter, 8 Wend. 494; Arfridson v. Ladd, 12 Mass. 173. Without saying more, we sanction, as applicable to the case as now presented, the following doctrine: that where the instrument is under seal, and the agent is a direct party to it, and the principal is not, so that the latter is not, ex directo, suable thereon, there the agent, although he describes himself as agent, is suable upon the covenants and agreements contained therein, as his own personal contract. We admit, that this doctrine is not applicable to a case where the instrument does not contain any apt words to charge the agent personally, as illustrated in Hopkins v. Mehaffey, 11 Serg. & Rawle, 126; Story on Agency, §§ 278, 291, 270; Tippetts v. Walker, 4 Mass. R. 595. See also the authorities cited supra; Whiteside v. Jennings, 19 Ala. 784; Walker v. Swartwout, 12 Johns. R. 444; Aven v. Beckom, 11 Georgia R. 1, and authorities therein cited; Steele v. McElroy, 1 Sneed, 341. The action of the court below, in sustaining the demurrer to the complaint, was in conflict with thé law as hereinabove declared, and was erroneous. Its judgment is therefore reversed, and the cause remanded.