Deming v. Bullitt

1 Blackf. 241, 1823 Ind. LEXIS 3

Opinion

Blackford, J.,

delivered the opinion of the Court in this case, in which the following points were determined:

1. A writing cannot be considered as a deed, unless there he a seal actually made upon the instrument. The circumstance of its containing the words sealed with my seal, &c. is not sufficient. Perk. sec. 129. — Moore v. Jones, 2 Ld. Raym. 1536. — Warren v. Lynch, 5 Johns. R. 239.

2. If a bond he described in the declaration as the Cause of action, and the writing produced on oyer have no seal; the variance is fatal, and may he taken advantage of on demurrer. Holman v. Borough, 2 Salk. 658. — Cooke v. Graham, 3 Cranch, 229.

3. Where a bond upon which a suit is brought, is alleged in the declaration to have been executed for the defendant by his agent, oyer of the' agent’s authority cannot be required. If, however, upon oyer’s being demanded, the plaintiff thinks proper to give it, he thereby makes the power of attorney, in extenso, a part of his declaration. Smith v. Yeomans, 1 Will. Saund. 317, note 2. — Jeffery v. White, Doug. 476.

4. In private contracts, when a man describes himself as an agent, but covenants that he himself, or that his principal, will perform a certain thing, and executes the deed in his own name, the term agent is considered merely as descriptive of the obligor; and the person so covenanting for himself, notwithstanding ^is description of agent, is personally and alone responsible. Appleton v. Binks, 5 East, 148. — Burrell v. Jones, 3 Barn. & Ald. 47 (1). On the other hand, when a man with the requisite authority, as agent for another, executes a bond, not for himself) but for and in the name of his principal; and in the body of the obligation enters into no covenant for himself, but binds his principal alone for the performance of the contract; the agent, in 'such a case, is exempt from responsibility, and the obligatory effect of the deed upon the principal is the same as if he himself had executed it. Combes's case, 9 Co. R. 75. — Wilks v. Back, 2 East, 142.

5. A bond which sets forth, that A. B. as agent of C. D., legally appointed for the purpose, hinds the said C. D. to make a title, &c., and which is executed as follows, A. B. (seal,) agent .for C. D., is the deed of C. I),, provided the authority of A. B. be sufficient. C. D. is here alone bound for the performance of the covenants, and the bond is executed for him by his agent. If, instead of expressly binding C. £)., A. B. had obligated himself, in the body of the deed, for the performance of the contract by C, &., it would have been the deed of A. B. and not that of C. D.t notwithstanding the words agent, tyr. attached to the signature ' and seal. But, in determining who are the parties to a deed,as in ascertaining the nature and effect of it, we must have recourse to the whole of the instrument. On the face of this bond it appears, that A. B. as agent of C. D., legally authorized for the purpose, hinds his principal for the performance of a contract,, and as his agent seals it, adding immediately after the seal the words agent for C. D. &/c. Here the covenants in the deed explain the nature and effect of the signature and seal, and distinctly point to the intention of the parties. They show that the words agent, Sjc. attached to the signature, are not merely descriptive, like that of solicitor ‘ in Burrell v. Jones, but were intended to explain that A. S.’s execution of the deed was not for himself individually, hut for and in the name of him whose covenants are contained in' it.jfThe bond in Wilks v. Back was executed very much like this, and that was'adjudged binding on the principal. So in' Jones' devisees r. Carter, 4 Hen. &, Munf. 184, the execution of a deed of partition by B, Washington^ attorney •of R. Carter, was exactly the same with this, and it was considered the deed of Carter (2).

6. Where C. D. authorizes A. B. to execute a bond in his (C. D.’s) name for a title to certain land, but on which no suit is to, be instituted until a patent is obtained, and until C. D. has neglected or refused to make a title after being specially requested to do so; and, under that special authority, A. B. enters in to an obligation, rendering his principal liable to an action at once, after receiving the patent, for not making a title to the purchaser, without his being previously requested to make it; the agent does not pursue his authority, but undertakes to bind his. principal in a bond which the latter never authorized him to execute. The agent may be liable himself on the obligation; White v. Skinner, 13 Johns. R. 307; but it is not obligatory upon his principal.

Footnotes

(1)

Another case on this subject has recently occurred in England. Assumpsit by Norton against Herron for a breach of the following simple contract: — “Memorandum of an agreement made this 14th day of April, 1824, between George Herron, on the behalf of Edward Barron, of the one part, and James Norton of the other part, to wit, first, the said George Herron doth hereby agree to execute unto the said James Norton a lease of all that messuage, &c. situate, &c., late in the possession of Nicholls, to hold from the 12th. of May, being the half-quarter between Lady-day and Midsummer now next ensuing, for seven, fourteen, or twenty-one years, at and under the annual rent of 1301.” &c.: Held, on the authority of Appleton v. Binks, and Burrell v. Jones, cited in the text, that Herron was personally liable. Norton v. Herron, 1 Carr. & Payne, 648. Vide Duvall v. Craig, 2 Wheat. 45, 56, and note. — M’Clure v. Bennett, ante, p. 180.

There is a considerable difference, on this subject, between these private contracts, and those made by agents of government. Vide Macbeath v. Haldimand, 1 T. R. 172. — Unwin v. Wolseley, Ibid. 674. — Myrtle v. Beaver, l East, 135.— Rice v. Chute, Ibid. 579. — Prosser v. Allen, 1 Gow’s R. 117, and note. — Jones v. Le Tombe, 3 Dall. 384. — Hodgson v. Dexter, 1 Cranch, 345. — Brown v. Austin, 1 Mass. 208. — Freeman v. Otis, 9 Mass. 272. — Sheffield v. Watson, 3 Caines’ R. 69. — Adams v. Whittlesey, 3 Conn. 560.-Gill v. Brown, 12 Johns. R. 385. — Walker v. Swartwout, Ibid. 444. — Swift v. Hopkins, 13 ib. 313. —King v. Butler, 15 ib. 281. — Olney v. Wickes, 18 ib. 122.

(2)

It is most advisable, however, when the principal alone is to be bound, to write the deed as if it were to be executed by the principal in person, without inserting the attorney’s name in it at all; thus, “This indenture made, &c., be-, tween John Doe, of, &c., and Richard Roe, of, &c., witnesseth,” &c.; and to have it executed in this form, — John Doe, (seal.) by Richard Fern, his attorney. 2 Wheat. 56, note.