Hancock v. Yunker

Mr. Justice Soholfield delivered the opinion of the Court: Two questions are presented by this record for our determination: First—Does the covenant in the lease to pay rent purport to be the covenant of the defendants, individually? Second—If the defendants did not, in fact, bind a legally organized corporation by the terms of the lease, are they, themselves, liable to an action of covenant upon it? As to the first point, we think it clear the covenants in the lease, on behalf of the lessee, do not purport to be the covenants of the defendants, individually. N. W. Distilling Co. v. Brant, 69 Ill. 658. The case is not analogous to Powers v. Briggs et al. 79 Ill. 493, and other cases of like tenor cited by the counsel for the plaintiff. The evidence shows that “ The Chicago Literary Association” was organized as a corporation, de facto, at least. It was the lessee, and by it, its associates, successors and assigns, are all the covenants that relate to the payment of rent, taxes, rates, care and repair of the premises, and surrender of possession, etc., to be performed. And, at the conclusion of the lease, it is recited, the party of the first part, the plaintiff, signs in his own proper person, and the party of the second part, which is “ The Chicago Literary Association,” signs “ through its trustees.” It is thus seen, the entire phraseology of the instrument expressly excludes the idea of an intentional personal liability, and is such as is appropriate and ordinarily used to express corporate liability. Upon the second point, there is no doubt that “ the signature of an agent amounts to an affirmation that he has authority to do the particular act, or, at all events, that he, bona fide, believes himself to have that authority.” Story on Agency, § 264. But the question here is not whether these defendants may be held liable to the plaintiff in a proper form of action, but whether they are liable in this form of action—i. e., covenant upon the lease. Story, in the work just quoted from, § 264a, says: “It seems clear that in no case can an agent be sued on the very instrument itself) as a contracting party, unless there are apt words therein so to charge him. Thus, if a person acting as agent for another should, without authority or exceeding his authority, make and execute a deed in the name of his principal, and not in his own name, the agent would not be liable thereon, although it would not bind the principal.” But he further says, where there are apt words which may charge him personally, and yet he signs the same, in his own name, as agent of another, the question may be presented under a different aspect, and he gives this example: “If an agent should, without due authority, make a promissory note, saying in it, ‘ I promise to pay,’ etc., and sign it C D, by A B, his agent, or ‘A B, agent of C D,’ in such a case may the words as to the agency be rejected, and the agent be held personally answerable as the promisor of the note?” “ Upon this point,” he says, “ the authorities do not seem to be entirely agreed.” The same, in substance, will be found in Chitty on Contracts (11 Am. Ed.), 314. See, also, Stetson v. Patten, 2 Greenleaf, 358; Ballou v. Talbott, 16 Mass. 461; Delius v. Canthorn, 2 Dev. 90; Abby v. Chase, 6 Cush. 56, 57; Moor v. Wilson, 26 N. H. 432; American Leading Cases (5 Ed.) Notes to Rathbon v. Budlong, 767, side p. 636. The question under consideration was not before the court in Wheeler v. Reed, 36 Ill. 91, nor in Mann et al. v. Richardson, 66 id. 481, and what was there said affecting it was by way of argument merely, and, so far as intended to announce a principle, must be understood as restricted to cases where there are apt words in the instrument to charge the agent personally, by rejecting the words descriptive of his agency as surplusage. In Duncan v. Niles, 32 Ill. 532, the court quoted with approval, however, this language from the opinion of the court in Abby v. Chase, supra, and predicated the decision upo» it, and upon other cases of like tenor: “ When one who has no authority to act as another’s agent assumes so to act, and makes either a deed or a simple contract in the name of the other, he is not personally liable on the covenants in the deed, or on the promise in the simple contract, unless it contain apt words to bind him personally. The only remedy against him in this commonwealth, is an action on the case for falsely assuming authority to act as agent.” It is true, in that case the agent sought to be held personally responsible assumed to act as the agent of a public corporation, and there is a distinction between the measure of liability imposed upon public and private agents; but the authorities referred to and relied upon apply, so far as the form of the remedy is concerned, as well to private as to public agents. We regard what is quoted from Story, supra, as a correct statement of the result of the authorities, and think it is not inconsistent with anything that has been heretofore decided by this court. Inasmuch, therefore, as the undertaking to perform the covenants in the lease of the party of the second part assumes to be that of “ The Chicago Literary Association ” alone, and there are no apt words from which an individual undertaking can be implied, if we shall reject the name *• The Chicago Literary Association ” wherever it occurs, we must hold that the defendants can not be held individually responsible in the present action on the lease, and affirm the judgment. Judgment affirmed.