Harkins v. Edwards

Woodward, J. The sole question is, whether Edwards & Turner are personally liable on this undertaking ? It will be observed, that the first petition recognizes the agency of E. & T.; or, at least, recognizes their claim to be agents of the Franklin Marine and Fire Insurance Co. of New York. The amended petition probably recognizes the same fact; but it alleges that plaintiff refused to take the insurance company for his lien, when Edwards requested him to do so, and deliver up the goods. Whereupon Edwards and Hawley gave him an obligation to pay bis charges on delivering up the goods; and that Edwards afterwards requested him to give up that obligation, and take a “similar” one from E. & T. and W. H. Earner, which he assented to, and they accordingly executed the obligation attached to the amended petition. The defendants, E. & T., demur, and claim that they are not liable. A demurrer, so far as it is an admission at all, is so of that only which is well pleaded. And one of the offices of the demurrer is, to inquire whether the matter is well pleaded, or can be pleaded. One of the objects of this demurrer is, to see if the plaintiff can aver these facts against the face of the contract; in other words, it raises the question, whether the plaintiff could be permitted to prove these facts. If the plaintiff can show that a contract, appearing to be executed by one as agent, was not intended to be so executed, but was intended as a personal undertaking; then he can show that one purporting to be executed by one personally, was, in fact, done by him, as agent, and so charge the principal. But the rule is, “ that in suing on a written instrument, such as a promissory note, the whole liability must be made out on the instrument itself, and that parol evidence is not admissible to alter, or add to, a written agreement which is made the ground of the action; and therefore, a principal cannot be made liable on a written instrument, or by mere force of a [431] written agreement, when bis name does not appear in the instrument or agreement, as a party to the contract.” The same rule must apply, when a party wishes to get rid of the principal, and render the agent personally liable. See 1 Am. Lead. Cases, 602, note, citing Pentz v. Stanton, 10 Wend. 271; Stackpole v. Arnold, 11 Mass. 27; Mayhew v. Prince, 12 Mass. 54; Austin v. Sawyer, 9 Conn. 39; Thurston v. Mauro, 1 G. Greene, 231; Kellogg et al. v. Richard et al., 14 Wend. 116; 1 Pet. Cond. Rep. 197, note, and 345, note. These cases hold, that parol evidence, explaining and showing the real nature of the transaction, is inadmissible. It is to be understood that the agent’s authority may be denied; and be, therefore, rendered liable. See Am. Lead. Cases, 606, note, for the rule in some cases, in which similar evidence may be received; but not, indeed, says the note, “ to show the intention of the parties to the contract.” Among the cases, we find no one where the contract is signed with words expressive of an agency. On the contrary, they are placed upon the very ground that the agent signs his name, without words showing an agency. If the plaintiff, then, could not be permitted to prove the facts alleged in his petition, his averment of them is nugatory, and the question of the defendant’s liability rests upon the face of the instrument only. Upon this question, were it a new one, the court would not, probably, be unanimous. And it is certain that the facts alleged in this petition, if shown to be true, would not incline the mind to exonerate the defendants, E. & T., if it were possible to hold them. The case of Baker et al. v. Chamblis, was determined in. this court at the June term, 1854. The instrument sued on in that case, ran in these terms: “We, the undersigned, directors of school district No. 4, &c., promise to pay,” &c., and was signed by the individual names, without any addition. The court decided that the signers are not personally liable. The court say, “ the rule is well settled, that if the name of the principal, and the relation of agency, be stated in the writing, and the agent is authorized, the principal alone is bound, unless the intention is clearly expressed to [432] bind tlie agent personally.” A majority of tbe present court are of tbe opinion, that tbis decision is amply supported by tbe authorities, whilst -those who differ on tbis point, yield to tbe above case. Tbe instrument in tbe case at bar, comes clearly within tbe rule of that above. Tbis subject is fully discussed in Am. Lead. Oases, 603, where numerous authorities and instances will be found. Tbe question of liability does not turn, generally, upon tbe form of signature, but upon tbe fact whether tbe relation of principal and agent is fairly disclosed upon tbe face of tbe paper. See N. E. Man. Ins. Co. v. De Wolf, 8 Pick. 56; Kirkpatrick v. Stainer, 22 Wend. 244; Evans v. Wells, 22 Wend. 324; 2 Kent, 629; Stackpole v. Arnold, 11 Mass. 27; Johnson v. Smith, 21 Conn. 627. Tbe defendants, Edwards & Turner, cannot be charged upon tbe face of tbis contract. Tbe judgment of tbe District Court must be reversed, and 'a procedendo will issue.