Adams v. Whittlesey

Hosmer, Ch. J. This is an action of book-debt for the making and repairing of a high-way. The county court of Fairfield county, on the complaint of the state’s attorney, directed the select-men of Fairfield, within a specified time, to put a certain public high-way within that town, in good and suflicient repair; and in case of their neglect, appointed the defendant “an agent,” to do it, at the expense of the select-men. For the performance of this duty, he was to exhibit his account to the court for adjustment, “ that execution might issue against the select-men for the money” he should expend. The defendant admitted, that he had employed the plaintiff to make and repair the high-way, and that most of the labour had been actually performed. The jury were charged, if the defendant contracted to become personally obliged, or bound, to pay the plaintiff for his services, that he was under a legal obligation to satisfy the debt; but, if they should find, that at [565] Ae time the contract was made, the plaintiff knew, or understood, that the defendant was a public agent, for causing the road to be made, in the absence of a special agreement to pay him for his services, that the defendant was not indebted to him. And this general principle was stated to them, “ that a known public agent, who employs a person to make advances, or perform services, in the matter of his agency, is under no obligation to make payment for the supplies, or services, unless he agrees to become personally liable ; and, in the absence of a special contract, on the part of the agent, that he will be liable for them, they are presumed, in law, to be made or done, on the credit of those who derive the benefit, and who, on this ground, are responsible to pay for them.” A verdict was brought in for the defendant ; and it is a clear presumption, that a promise of personal responsibility, by the defendant, was not proved. There exists no doubt, if the person performing service, on the request of an agent, supposes him to be the principal, not having received information that it was for the benefit of another person ; or if the agent declines to give ány information on the subject ; or if the person who did the service, refused to perform it on the credit of the principal, and did it on the credit of the agent ; that, in all these cases, the agent would be responsible. Owen v. Gooch, 2 Esp. Rep. 567. The case under discussion, is not embraced by either of the classes, which have been mentioned. The plaintiffhad full knowledge of the defendant’s agency; and the defendant derived no personal benefit from the plaintiff’s services, and did not agree to be personally obliged to make payment. The question for decision is precisely this ; whether on the facts appearing, the law implies a contract of personal liability on the part of the defendant. The answer to this inquiry has uniformly been in the negative, unless the case of Sheffield v. Watson, 3 Caines, 69., may be considered an exception ; and whether it be or not, is not worth the examination, as it was doubted, and courteously over-ruled, in the case of Walker v. Swartwout, 12 Johns. Rep. 444. Implied contracts are such as reason and justice dictate, and which, therefore, the law presumes that every man undertakes to perform ; but it never has been supposed, that the dictates of reason or justice require a known agent, to pay for servi [566] ces rendered for the benefit of his principal. The rule on this subject is accurately declared, by Spencer, Ch. J., in S. & J. Rathbon v. Budlong, 15 Johns. Rep. 1. “ The general principle, (said he) is, that an agent is not liable to be sued upón contracts made in behalf of his principal, if the name of his principal is disclosed, and made known to the party contracted with, at the time of entering into the contract.” And in Brown v. Austin, 1 Mass. Rep. 208., it was determined, that “ a public agent, contracting as such, is not personally liable ; and although in ordinary cases, the law implies a promise and personal obligation, as necessarily resulting from services performed on request; yet such implication never arises, when it appears, that the request was made, by a public agent, acting in a public concern.” Had the case called for the remark, it might, and probably would, have been added, “ nor on request made, by a private agent, in a private concern ;” and “ that there is no difference between the agent of an individual, and of the government, as to their liabilities.” See Rathbon v. Budlong, 15 Johns. Rep. 1. In Macbeth v. Haldimand, 1 Term Rep. 172., and many other cases, the same point, in relation to implied contracts, has been adjudged ; and is, likewise, necessarily inferred from determinations, which have gone the length of deciding, that an express promise of a known agent, does not bind him personally, unless it was thus intended ; and that “ the intent of the agent to bind himself personally, must be very apparent, indeed, to induce such a construction of the contract.” Hodgson v. Dexter, 1 Cranch 345. And for this there exist strong reasons 5 the manifest injustice of passing by the person benefitted, and fixing a responsibility on the agent, unless he clearly intended it ; and the public inconvenience of adopting a rule, that, at least, would put in hazard the existence of those friendly acts of one person for another, which are very frequent, and will continue so to be, so long as they are unattended with risk. This subject I will pursue no further, as the exigencies of the case do not require it, and content myself with a reference to some of the principal determinations. Unwin v. Wolseley, 1 Term Rep. 674., Macbeth v. Haldimand, 1 Term Rep. 172., Appleton v. Binks, 5 East 148., Owen v. Gooch, 2 Esp. Rep. 567., Hodgson v. Dexter, 1 Cranch, 345., Walker v. Swartwout, 12 Johns. Rep. 444., Pochin v. Pawley, 1 Bla. Rep. 670., Rathbon v. Budlong, 15 Johns. Rep. 1., Olney v. Wickes, [567] 18 Johns. Rep. 122., Randall v. Van Vechton, 19 Johns. Rep. 60. I feel constrained, by civility, to take notice of an objection, which, if it had not been distinctly made, would never have occurred to me. It has been said, that, from the facts stated, the defendant was not an agent, but the principal. Who, then, is a principal ? 1 answer, one primarily and originally concerned, and who is not an accessary, or auxiliary.—Who is an agent ? A substitute, or a person employed to manage the affairs of another. The test on this enquiry, is, who derives the beriefit ? The person receiving goods, or employing workmen, for his own advantage, is a principal ; and he who receives, or employs workmen for another, is an agent. It contradicts the plainest meaning of language, to assert, that the defendant, who derives no more advantage from the repaired highway, than every other man in the state, and whose only business it was, to act by an appointment, was other than an agent. He performed the business of a surveyor of highways ; and was no more a principal than he is. It has been enquired, if the defendant is only an agent, who, then, is the principal, to whom the plaintiff may look for compensation ? If the question was not susceptible of a satisfactory answer, it would present no dilemma. It matters not, whether there is, or is not a remedy ; and this point has often been decided. (See Macbeth v. Haldimand.) Such is the condition of all the contracts made by the agents of government, the payment of which there is no legal mode of coercing. Besides, the contemplated difficulty is voluntary, on the part of the creditor. He may always shield himself, by insisting on the special liability of the agent, at the outset. But, the principal, in this case, is not concealed. It is the< government, who have required the repair of highways ; and unless the fund for payment is derived in the mode prescribed by law, of which there is no question, the public faith is an adequate security. I am of opinion, that legal justice has been done, and would not advise a new trial. Peters, Chapman, and BraInard, Js. concurred. Bristol, J. expressed some doubt, whether the general doctrine, in the form stated by the Chief Justice, was entire568 Jy correct; but, considering the nature of the transaction, in this case, he acquiesced in the decision. New trial not to be granted.