Byars v. Doores' Administrator

Scott, Judge, delivered the opinion of the court. 1. It must be confessed that the question involved in this case has received different determinations by the courts in the United States. But the weight of authority is decidedly in favor of the view of the question entertained by the court below. On written contracts made by an agent without authority, if his name does not appear in the contract, and he contracts for his principal only, an action against him on such contract will not lie ; but an action on the case for his wrongful act, in assuming to contract for another without authority, is the only remedy. But if an agent, acting without authority in attempting to bind another, although his name appears as agent for the principal, yet, if he does not employ language which will exclusively bind the principal, or if, rejecting the words which he had no authority to use, enough will remain to create a promise on his part, he will be personally liable on the contract. This seems to be the rule deduced from the American cases, and they clearly overthrow the case of Ballou v. Talbot, (16 Mass. Rep. 461. American Leading Cases, 457.) In the case under consideration, if we reject the false description — the agent appended to his name, there is a contract on his part te pay the money sued for. Judge Ryland concurring, the judgment will be affirmed.