Hinsdale v. Partridge

The opinion of the court was delivered by Redfield, J. The only question raised in the present case is, whether the defendant is to be considered personally bound by all the stipulations in his contract to the plaintiff. Upon this subject each case must rest upon its own peculiar grounds. The decision of one case is hardly a guide for another, unless the cases, in their leading points, are identical. The recent English cases, and many of the American .cases seem to incline very strongly to hold the person contracting personally responsible, unless he be a public agent, or where he had full authority to make the contract on behalf of another, and there was no intention to make himself personally liable. In a case like the present, it must be considered mainly a question of intention between the parties. This intention must be determined by the language of the contract, with reference to its subject matter and contemporaneous circumstances. In the exposition of contracts, the terms in which they are expressedareeMjtleffTtrparamount^n^icreration — —" The terms here made use of are undoubtedly well calculated to induce a belief, that the defendant did intend to assume a personal obligation. The contract is entitled “Articles of agreement between Alden Partridge and Theodore Hinsdale.” The plaintiff was to furnish board to all the cadets “ and the said Partridge is to pay the said Hinsdale at the rate of $1.72 [553] per week for each.” “ No payment is to be considered due until the end of the quarter.” It is then provided “ that if the parents or guardians neglect to pay the bills of the cadets in season, the defendant is not to pay out of his own funds, except for the necessary expenses of the house.” “ At the end of the year the bills of those who have failed or become insolvent are not to be paid by said Partridge, except such proportion, as he may have received, to be averaged on their whole bills.” “ And in case of final loss on said bills, plaintiff is to bear his proportion of the loss.” There being no other stipulation found in the contract imposing the risk of any ultimate loss upon the plaintiff, it would seem natural to conclude, that other losses were to fall upon the defendant. Expréssio unius exclusio alterius. For the provision in regard to final loss “ on said bills,” as it immediately follows the clause in regard to bills of those whose parents or guardians have failed during the year, can only refer to those. I think, too, that the circumstances attending this contract should induce us to adopt the conclusion that the parties to it did consider the defendant personally bound by its stipulations. This was a military school, set on foot by the individual enterprise of the defendant. He furnished every thing for the use of the cadets, unless it be the board. They were not allowed to have funds or to make contracts. Neither the cadets, nor their parents or guardians, in regard to any of the supplies furnished, knew any one but the defendant. The regulations of the school, which were known to plaintiff as well as defendant, required advance pay in most instances, and, in all, pay at the close of the current quarter, fiad these regulations been enforced by defendant, as upon every principle of good faith the plaintiff had a right to expect they would be, the sum which is now due the plaintiff would'bave been in the hands of the defendant^ or.-else these- bills wvould never have accrued. As the plaintiff had no control over these regulations, either to enforce or dispense with them, the defendant, by dispensing with their enforcement, did, on every principle, aside from the contract, make the debts his own. The defendant, too, admitted whom he pleased to the school and thus, in effect, had the control of plaintiff’s table. The plaintiff could not be considered as having any claim upon the [554] parents or guardians of the cadets, as he had consented to ^oard them solely upon the credit of the defendant, knowing a^ facts- The school was in effect a perfect garrison, the defendant the sole and absolute governor thereof, and the p]a¡ntjjj jjjg mere servant. Under such circumstances it is but natural to conclude that the plaintiff would expect the personal contract of the defendant, and that the latter would readily give it, as he did. Now that circumstances have intervened, which were not then anticipated, it is not for the court to impose upon the parties such a contract as they would have made, had they known what we now know. We can only enforce the contract which they did in fact make. The judgment of the county court is affirmed.