CHAPTER XIII.

AGENT NOT LIABLE ON ULTRA VIRES CONTRACT.

THIRTY-FOURTH SELECTED CASE.

MCCURDY V. ROGERS.*

Contract by agent in name of principal; when agent is bound-Contract of public officer.

1. An agent, who promises in the name of his principal, does not in all cases bind himself if he fails to bind the principal.

2. To make the agent personally liable where he does not so intend, and the credit is not given to him, there must be some wrong or omission of duty on his part, such as affirming that he had authority, when he knew or ought to have known that he had not; or a failure to disclose facts within his knowledge.

3. In the case of a public agent, where his authority, or that of his principal, to contract, is derived from a public statute, the party contracted with is presumed to know the limitations of such authority; and the doctrine that an agent, by contracting for his principal, affirms his authority, does not apply.

4. The agent is not in any case liable in an action ex contractu, unless the credit has been given to him, or he has expressly agreed to be liable; and if there is a written contract it must contain apt words to charge him.

5. There is a strong presumption of law against any credit having been given to a public agent acting within the scope of his authority; and if, in a case where he acted beyond his authority, the defect of the authority was known to the other party, it seems that the same presumption lies against the liability.

* Reported in 21 Wisconsin, 197 (1866).

6. Where defendant, as chairman of a town board of supervisors, obtained a recruit to be credited to the town, upon promise of a certain sum as town bounty, he acted as a public agent, and if the amount promised exceeded that which the town was authorized by law to pay, his personal liability is to be determined by the principles above stated.

7. If otherwise liable, defendant was entitled to show as a defense, that he was not notified within a reasonable time that such recruit had been accepted and credited to the town.

Appeal from the Circuit Court for Winnebago County.

ACTION for bounty money. The plaintiff sued as assignee of one Lent, and averred that defendant, on the 30th of August, 1864, at the city of Oshkosh, agreed with Lent to pay him $300 if he would be mustered into the military service of the United States and credited to the town of Oshkosh; and that Lent duly performed said conditions on the 8th of September following. Answer in denial. The plaintiff's evidence tended to sustain his averments. The defendant's evi

dence tended to show that he made the contract as chairman of the town board of supervisors, and that this was known at the time to Lent; that the only conversation he ever had with Lent was about the 20th of August, 1864; that Lent did not at that time say whether he would accept the amount proposed by defendant, or any other sum, and never had notified defendant that he had been credited to the town of Oshkosh, nor did defendant know of that fact until the subsequent winter or spring; that sometime in September, 1864, the plaintiff (who was treasurer of the city of Oshkosh) told him that Lent was credited to the city; that defendant had means in his hands at the time of his conversation with Lent to pay what he had proposed; and that if Lent had credited himself to the town of Oshkosh, and notified defendant at any time while he was chairman, he could have paid him. The court refused to let the defendant show, either that before he had any knowledge that Lent had credited himself to the town; to-wit., in November, 1864, upon retiring from his office as chairman, he had a settlement with the proper authorities of the town, and did not retain in his hands any money to pay Lent for his credit to said town; or that, before he had any notice of the assignment of said claim to the plaintiff "Lent informed him

that he supposed he had credited himself to the city of Oshkosh, but by mistake was credited to the town." It instructed the jury that if defendant, as chairman, etc., agreed to pay for said town to said Lent $300 for his credit, the contract was not binding upon the town, and the defendant was liable therefor personally. It further instructed them, inter alia, that if the defendant offered Lent to pay him a certain sum if he would credit himself to said town, and Lent did not accept the offer, defendant was not liable, even if Lent did subsequently credit himself to the town, unless defendant knew of such crediting and adopted it.

Verdict for plaintiff for $233; motion for a new trial, on the ground (among others) that the court erred in instructing the jury, denied; and the defendant appealed from a judgment on the verdict.

Gab. Bouck, for appellant, to the point that if defendant made the contract alleged as agent for and in behalf of the town, without authority to bind it, the plaintiff could not recover on the contract, but only by a special action on the case, cited 2 Kent's Com., 631-32; Story on Agency, § 264, a; Fowles v. Shearer, 7 Mass., 14, 19; Stinchfield v. Little, 1 Greenl., 231; Hopkins v. Mehaffy, 11 S. & R., 126; Townsend v. Corning, 23 Wend., 435; Long v. Colburn, 11 Mass., 97; Harper v. Little, 2 Greenl., 14; Stetson v. Patten, 2 Id., 358; Abbey v. Chase, 6 Cush., 54; Ballou v. Talbot, 16 Mass., 461; Delius v. Cawthorne, 2 Dev., 90; Ogden v. Raymond, 22 Conn., 383; Polhill v. Walter, 3 Barn. & Adolph., 114; Dourunan v. Jones, 9 Jurist, 454; 12 Eng. L. & E., 433. An agent who acts without authority is personally liable only when his want of authority is unknown to the other party. Story on Agency, § 264; Jenkins v. Atkins, 1 Humph., 294, 299. A public officer, in making a contract, is not personally liable because he does not so contract as to give a cause of action elsewhere, unless guilty of fraud or misrepresentation. 2 Kent, 633; Story on Agency, §§ 287-8, 302, 306; Ogden v. Raymond, 22 Conn., 379; Tobey v. Claflin, 3 Sumner, 379; Parrott v. Eyre, 10 Bing., 283; Hodgson v. Dexter, 1 Cranch, 345; Mackbeth v. Haldiman, 1 Term, 172; Unwin

v. Wolsely, Id., 674; Gridley v. Lord Palmertson, 3 Brod. & Bing., 275; Brown v. Austin, 1 Mass., 208; Daws v. Jackson, 9 Id., 490; Adams v. Whittlesey, 3 Conn., 560; Stinchfield . Little, 1 Greenl., 231; Entoe v. Hall, 1 Humph., 303. The chairman of a town board of supervisors is a public officer. Ogden v. Raymond, 22 Conn., supra; Tutt v. Hobbs, 17 Mo., 489; Olney v. Wickes, 18 Johns., 124; Adams v. Whittlesey, 3 Conn., 564; Perry v. Hyde, 10 Id., 338; Sterling v. Peet, 14 Id., 248; Johnson v. Smith, 21 Id., 627.

Jackson & Halsey, for respondent.

The chairman of the board of supervisors is not authorized to make any contract in behalf of his town. A quorum of the board only can act. R. S., Ch. 15, Sec. 65. The contract alleged in the complaint could not have been made even by a quorum; because the law authorizing towns to pay bounties. limits them to $200. The defendant was therefore liable personally. Story on Agency, §§ 280, 282, 283, 285–6 a, 166–7, 172, 175, 264, 269; 7 Wend., 315; 11 Id., 479; 6 Cow., 354; 3 Johns. Cas., 70; 15 Johus., 44; 18 Id., 363; 2 Id., 48.

Downer, J.—The first question is: Did the county court err in instructing the jury" that if they found from the evidence that the defendant, as chairman of the board of supervisors of the town of Oshkosh, agreed to pay for said town to said Lent $300 for his credit, the contract was not binding upon the town, and the defendant was liable therefor personally?" The town was authorized by law to pay only $200 bounty to each volunteer; and if the defendant, as agent of the town, promised to pay more than that sum, the promise was not binding on the town. The principle of the instruction is, therefore, that an agent who does not give a cause of action against his principal, is of necessity personally liable. This is generally so. Is it so in all cases? Is it so in this? Was there sufficient testimony to base the instruction upon?

It was held in Smout v. Ilberry, 10 Mees. & Wels., 1, that where the wife, acting as agent for her husband, had an original authority, which had been revoked by the death of the

husband, unknown to her, she was not liable by reason of making a void contract in his name after his death. The wellreasoned opinion of the court in that case leads to the conclusion, that to make any agent personally liable, where he does not intend to be, and the credit was not given to him, there must be some wrong or omission of right on his part, such as asserting that he had authority when he knew or ought to have known he had not, or a failure to disclose fully all the facts within his knowledge. To the same effect is Ogden v. Raymond, 22 Conn., 384. See also Story on Agency, S$ 265, 287. It is not claimed that the appellant made any false representations to Lent, or practiced any deception upon him, unless it was done by making a promise in the name of the town which he had no authority to make. His assuming to make a contract which he had no authority to make would ordinarily, in the case of private agents, be equivalent to a representation that he had authority to make it. But not so in this case; or, if so, its falsity was known at the time to Lent. For the authority which the town had was by virtue of a general statute law, which both parties alike are presumed to know. A representation made by the defendant to Lent, and at the time known by him to be false, of course could not be relied on by him, and could not be a wrong to the injury of Lent. The complaint is in assumpsit, and the instruction, taken in connection with the complaint, assumes or is to the effect that if the defendant promised as agent for and in the name of the town, and that promise is void as to the town for want of authority in the agent to make it, it became the individual promise of the agent, on which he was liable in this action. We do not see on principle how an agent can be liable on any contract, unless there are apt words to charge him, or how a promise on his part can be implied, unless the credit was given to him. The authorities are somewhat conflicting as to the liability of an agent in actions ex contractu; but the weight of authority we think is, that to charge an agent in such action the credit must have been given to him, or there must be an express contract, and if there is a written contract there must be apt words in it to charge him. See Story on Agency, § 264 a, and note; Ogden v. Raymond, 22 Conn.,