Rollins v. Phelps

[466] By the Court. FlANdrau, J. The paper books fur-nisbed us in this case contain simply a copy of the contract on which the suit was founded. The pleadings are omitted as well as all the proceedings on the trial. It seems that the Plaintiffs obtained a verdict against the Defendants, the Court holding them personally liable upon the contract, and it is this ruling that they seek to re - view, upon the ground that they acted as agents, and their principals alone incurred liability. ¥e are necessarily confined in our examination to this one question, and in that to the face of the contract alone. The portion of the contract that is supposed to disclose the representative capacity in which the Defendants acted is this: “ Contract between Calvin Potter, party of the first part, and John Rollins, J. Gf. Rowe, Jonathan Chase, and Gilbert Hanson, as agents, authorized by the log-owners, parties of the second part.” The substance of the contract is, that the first party agrees to raft certain logs in Vermillion Slough, and the second party agrees to pay him for it, and furnish him money and supplies while at work, &c. It also appears from the contract that the logs were marked with the several marks of the owners. The Defendants sign the contract with their proper names, with the addition of “ agent ” to each name-The contract is not signed by Gilbert Hanson, and nothing appears to explain why his name is omitted. The contract upon its face is that of the Defendants, and not the log-owners. First, because it is not disclosed who the log-owners are ; and, second, it appears that the log-owners had constituted four persons their agents to make the contract, and only three of them had joined in it. “In order to confine the credit to the principal, it is in general necessary that he should be known as the responsible person.” Dunlap's Daley's Agency, 370; 12 Ves. 352; 2 Kent's Com. 630. There is nothing in this contract that would lead the mind to suppose that the party of the first part gave the credit to the log owners, parties unknown to him, and who, if he should seek them out, might have been so numerous and so widely separated as to render the enforcement of his claims [467] against them impracticable, while the whole tenor of the instrument indicates that the employment was a personal one, and so understood between the parties. Although the parties of the second part describe themselves as the agents of the log owners, they make all the promises contained in their part of the contract in their own behalf, and not in the names of their principals, and sign the same with their own names. We think the authorities are clear that in contracts of this character the addition of the word “ agents” to their names, is a mere descripUo personaa'.um, and the obligation is a personal one. Taft vs. Brewster, 9 John. Rep. 334; White vs. Skinner, 13 Ib. 307; Stone vs. Wood, 7 Cowen, 453; Barker vs. Mechanics' Ins. Co. 3 Wend. 94. The case of Sanborn vs. Weal, et al, 4 Min. Rep. 126, involved the consideration of questions somewhat analogous to the one here presented; but in that case the instrument did disclose the name of the principal, and also, that the parties signing were public agents, and it was upon these features of the case that the signers were exonerated from personal liability. It is a general rule that where a private agent so executes his authority as not to bind his principal, he will be himself liable for his acts. Dunlap's Paley's Agency, 386; Dusenbury vs. Ellis, 3 John. Cas. 70; Stone vs. Wood, 7 Cowen. 453; Palmer vs. Stephens, 1 Denio, 471-480. An authority conferred upon several agents must be executed by them all, and any act done by a less number will be void 'as against the principal. “ An authority given to two cannot be executed by one, though one die or refuse. If an authority be to A, B & C, to sell after the death of D, and one die before D, the others cannot sell. An authority to three jointly and separately is not well executed by two.” Dunlap's Raley's Agency, 177, and notes. This rule is of general application to all matters of private concern, but does not extend to publip affairs. In the case of public agents a majority may usually act. Green vs. Miller, 6 John. Rep. 69. As we have seen, the contract shows that the authority was [468] conferred upon four and was executed by but three. Had it been properly executed in the names of the principals, it would have failed to bind them under such an execution; and when such fact is apparent, the party contracting with the agents may resort to their personal liability in the first instance. The Defendants’ counsel attempts to do away with the force of the objection that the principals were not disclosed, by the fact that the logs being marked, the Plaintiff could resort to the books of the Surveyor General, and there ascertain to whom the marks belonged. The law in foree at the time of this contract on the subject of marks, was section 16, of chapter 16, of the Laws of 1854. This section only makes it the duty of the Surveyor General to keep a book for the record of marks, and to record such as are filed with him. These marks may or may not have been recorded, from anything that appears; but we are not willing to allow the force claimed for these marks, even had it appeared that they were duly recorded. A party is not obliged to follow up every channel of information to discover a principal, when contracting with parties who are willing to place themselves in the position of principals, as these Defendants have done by their contract. The order denying a new trial is affirmed.