Hewitt v. Wheeler

Ellsworth, J. The main question in this case is, whether the defendants were debtors of Joseph Kinney, by virtue of the contract, entered into for the building of “ a Congrega [562] tional church, in the village of Milltown, in North Stonington.” It is not necessary, in deciding this case, to go through the numerous cases which have been cited at the bar, to show, where agents really or professedly contracting in behalf of others, do not bind their principals, but themselves ; or what should be the form of the agent’s signature, to save himself from responsibility. The books are full of cases upon this refined subject, and are burdened, and overburdened, with elaborate learning, not unfrequently more nice than wise. They show such embarrassing conflict of judicial opinion, that one, in search of- the law, is well nigh tempted to discard the whole that is written, and follow the dictates of his own understanding. The notions too, which prevail in one state or country, and in some cases, in courts of the same country, seem not to be consistent or uniform with themselves. We find one rule applied, in cases of deeds, and another in cases of simple contracts ; one in case of public, another in case of private agents ; and yet they all profess to take the intention of the parties, as the only proper and just rule of construction. Beginning with the case-of Hodgson v. Dexter, 1 Cranch, 345, and following along, through all the cases in the states, down to the present time, we can not fail to be struck with their great want of perspicuity and uniformity. And we have sometimes thought, that men of ordinary observation, would not have hesitated, a moment, in discovering the meaning of the parties, where courts, by reason of certain technical rules, have been perplexed and embarrassed beyond measure. We believe, that our own courts are, to a great extent, disentangled from this confusion and contradiction ; and that here, judges are allowed to see and to think as other men see and think. It ought always to be a rule of construction, that, whether an agent contracts under seal or without one; by writing or by parol; and whether his principal is the state, or other corporation, or an individual; that the intention of the parties, [563] gathered from all the legitimate evidence which belongs to the case, shall be held to be the sure and only criterion of the character and effect of the agent’s act. This is the rule, if I mistake not, of the courts of Connecticut, in those cases where the agent is really clothed with power to act. Undoubtedly, more latitude may be allowed, in cases of parol testimony, than in cases of written instruments, or instruments under seal; and so an act properly done by a public officer, may furnish higher presumptive evidence that he acted in a public capacity; but the intention, when ascertained, is the true and only rule in these, as in other contracts, written or unwritten. We want only to know what the parties, by the language used, intended to declare. The rule of our courts is to be inferred from McGill v. Hinsdale, 6 Conn. R., 464; Stamford Bank v. Ferris, 17 Conn. R., 270; Perry v. Hide, 10 Conn. R., 330; Johnson v. Smith, 21 Conn. R., 633; Shelton v. Darling, 2 Conn. R., 435, and Hovey v. Magill, 680. Now, taking the intention of the parties, as our guide, we are fully satisfied that Mr. Kinney was not building this meeting-house, for the defendants, or on their credit, and we feel confident,- that, had it so happened, in the course of events, that the defendants had failed, leaving this debt unpaid, or that no creditor of Mr. Kinney had laid his attachment on this debt, we should not have heard of any such claim as is now made by the plaintiff. The contract begins, “ This contract,” &c., “ by and between Joseph Kinney, on the first part, and Russell Wheeler and Dudley R. Wheeler, a committee for building,” &c. What means this expression, “ committee,” but to show the character in which the defendants were going on to contract ? So, for “ building a Congregational church in the village of Milltown, in North Stonington.” Was it for the defendants ? No,for the Congregational society. So, again, it is to be built “near the spot where the present house now stands.” Then to conclude, the contract is signed by the [564] defendants, as building committee. Now, can anything be more expressive and satisfactory than this, as to the character in which these defendants were acting ? One of the plaintiff’s counsel, in the argument, admitted, that, if the Congregational society had been named in the writing, the defendants would not be held liable as principals. We think they are, or what is equivalent, by the language just quoted. Mr. Kinney very well knew, that this Congregational society were the principals, who entered into this contract, by their committee, formally appointed. Again, this society passed numerous votes and resolutions, on the subject of a contract, and they appointed these defendants, their agents, to make a contract for building this house, and have, in repeated instances, directly and indirectly, ratified the contract itself. Now, from first to last, the agency of the defendants has been known and recognized, by all com cerned in the business, and we are convinced the defendants could not have had the least idea of being personally responsible for this house of public worship. The nature of the case, too, shows how this was understood. Mr. Kinney was one of the signers to the subscription paper, and, from that circumstance, well knew he contracted with the defendants, as a committee of the society. Since, then, we are satisfied, the parties intended and supposed the contract was made with the society only, and the committee were in fact duly authorized to contract, we are constrained to hold, the defendants must be treated as agents only. ' There is no force in the objection, that only two of three of the committee signed the contract. We are not certain but the power is of such a public nature, that a majority only can bind the society. We think the court so held, in the case of Johnson v. Smith, already referred to ; but, at all events, if there is a difficulty here, the two who acted professed to act, as the committee, and the society have again and again, ratified and confirmed the particular contract; so that Mr. [565] Kinney obtained all the security he originally expected; and, if the society do not complain, he certainly can not. The same may be said, as to the security which the committee were'to exact from the builder. The difficulty, if it ever had any force, which we do not admit, has been waived, by those who alone had any interest to urge it. We therefore advise a new trial. In this opinion, the other judges concurred, except Waite, J., who tried the cause in the court below, and was disqualified. New trial to be granted.