Walker, J.
The appellant urges the reversal of this judgment upon the ground that the appellee’s replication is no answer to appellants’ special pleas. The declaration counted on a contract of appellant, and the filing of the general issue put the appellees upon the proof of the contract declared on, or under the common count, the proof of a contract of appellant, either express or implied. They could not recover on the contract of another.person. These pleas alleged that the work sued for was performed under a contract with Whittle. If these pleas amount to anything, it is an argumentative denial that the contract sued on was that of the defendant, and that fact was directly traversed by the general issue. These pleas, only in a different form, traversed what had been put in issue by the plea of non-assumpsit, and the replication only reaffirmed what had been averred in the declaration. And whether it was an answer to the pleas or not, could make no difference, as neither it, or the pleas, in the slightest degree changed the right of either party, under the issue already formed. And the appellant having proceeded to trial under this replication tendering an issue to the country, and having failed to demur or to move to strike it from the files, must be held to have admitted its sufficiency. This objection is not well taken.
It was again objected that the agreement was improperly admitted in evidence under the declaration in this case, because it was not signed by the company. It is a rule of pleading, that in declaring on a contract executed by an agent, that the contract may be described as having been signed by the principal himself, or as signed by his agent for him. Nickleson v. Croft, 2 Burr. R. 1188-9. It then becomes necessary to determine whether this contract was that of the defendant, or that of Whittle. It seems, from the evidence in the case when taken together, that the intention of the parties was to bind the company, and not Whittle.
But it is insisted that the court could not receive extrinsic evidence to explain that intention, and that the instrument alone could determine the question. The principle is familiar, that the contract made by the agent as such, is the contract of his principal, and that the former is the instrument by which the contract is effected, and he is not clothed with any legal interest in it, which can render him responsible on the agreement, although in some instances he may sue in his own name. 1 Chit. Pl. 34. And it has been held, that where an agent fails to disclose that he is acting merely as an agent, and the principal is unknown, the latter may, when discovered, be sued on the agreement. 1 Chit. Pl. 39. To bind the principal by the contracts of his agent, it is not material whether they are verbal or in writing, unless required to be in writing by the statute of frauds, the question being, to whom was the credit given, to the agent or to the principal. If, from the agreement itself, it clearly appears that the intention was to bind the agent and not the principal, the agent is held to be liable. But when from the whole instrument there is doubt whether it was the intention to bind the principal or the agent, courts have held that extrinsic evidence may be received to ascertain the intention.
In the case of The Mechanics’ Bank v. The Bank of Columbia, 5 Wheat. R. 326, the Supreme Court of the United States held, where the cashier of the Mechanics’ Bank had drawn a check on the Bank of Columbia, signed by him, in his own name, without any addition to indicate that he signed it officially, that as it Avas doubtful on its face whether it was an official or a private act, parol evidence was admissible to show that he signed it in his official character. In that case the circumstances appearing on the face of the check, which must have been relied on to create the doubt, were, the making it payable to order instead of to bearer, and its bearing date, “ Mechanics’ Bank of Alexandria,” as there is nothing else distinguishing it from ordinary checks drawn by individuals. The court say, “ The only ground on which it can be contended that this check was a private check, is, that it had not, below the name, the letters cas. or ca. But the fallacy of the proposition will at once appear from the consideration, that the consequence would be that all of Paton’s checks must have been adjudged private. For no definite meaning could be attached to these letters without the aid of parole testimony.
“ But the fact that this, on its face, appeared to be a private check, is by no means to be conceded. On the contrary, the appearance of the corporate name of the institution on the face of the paper, at once leads to the belief that it is a corporate and not an individual transaction; to which must be added the circumstances that the cashier is the drawer, and the teller the payee; and the form of ordinary checks deviated from by the substitution of to order for to bearer. The evidence, therefore, on the face of the bill, predominates in favor of its being a bank transaction,” etc. “ But it is enough for the purposes of the defendants to establish that there existed, on the face of the paper, circumstances from which it might reasonably be inferred that it was one or the other.”
“ It is by no means true, as was contended in argument, that the acts of agents derive their validity from professing on the face of them to have been done in the exercise of their agency. In the more solemn exercise of derivative powers, as applied to the execution of instruments known to the common law, rules of form have been prescribed. But in the exercise of the duties of a general agent, the liability of the principal depends upon the facts, 1st, That the act was done in the exercise; and 2nd, Within the powers delegated. The facts are necessarily inquirable into by a court and jury, and this inquiry is not confined to written instruments,” etc. “ But to any act with or without writing, within the scope of the power or confidence reposed in the agent.”
The agreement in the case under consideration, certainly presented on its face as many circumstances to indicate that it was the agreement of the defendant, or to create a doubt as to whether it was theirs, or was that of Whittle, as the case in the Mechanics’ Bank v. The Bank of Columbia. This instrument describes Whittle as the “ resd” engineer of the road. Again, the plaintiffs agree and bind themselves to dig a well for the use of the company, at the side track to be laid by the party of the second part or his assistant, at Middleton depot; the wall of the well was to be built as directed by the engineer in charge of the work, and in another portion of the contract plaintiffs agree to dig and wall the well as required by the engineer. If this language in the agreement does not bear the construction, that the contract was entered into on behalf of, and with the intention of, binding the company, it most clearly leaves it in doubt, whether it is their contract or that of Whittle. And viewing it either way, it was not error to receive parol evidence to explain what was intended by the parties. It is true, that the name of the company was not signed to it; but we have seen by the case of the Mechanics’ Bank v. The Bank of Columbia, that the want of their signature can make no difference, when it appears from the instrument to be their contract, or when it is from its face left in doubt, and extrinsic evidence shows it to have been entered into on their behalf by their authorized agent. And that such signature was not material, was held in the cases of Hodgson v. Dixter, 1 Crunch R. 345 ; Bank of Columbia v.
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Walker, J.
The appellant urges the reversal of this judgment upon the ground that the appellee’s replication is no answer to appellants’ special pleas. The declaration counted on a contract of appellant, and the filing of the general issue put the appellees upon the proof of the contract declared on, or under the common count, the proof of a contract of appellant, either express or implied. They could not recover on the contract of another.person. These pleas alleged that the work sued for was performed under a contract with Whittle. If these pleas amount to anything, it is an argumentative denial that the contract sued on was that of the defendant, and that fact was directly traversed by the general issue. These pleas, only in a different form, traversed what had been put in issue by the plea of non-assumpsit, and the replication only reaffirmed what had been averred in the declaration. And whether it was an answer to the pleas or not, could make no difference, as neither it, or the pleas, in the slightest degree changed the right of either party, under the issue already formed. And the appellant having proceeded to trial under this replication tendering an issue to the country, and having failed to demur or to move to strike it from the files, must be held to have admitted its sufficiency. This objection is not well taken.
It was again objected that the agreement was improperly admitted in evidence under the declaration in this case, because it was not signed by the company. It is a rule of pleading, that in declaring on a contract executed by an agent, that the contract may be described as having been signed by the principal himself, or as signed by his agent for him. Nickleson v. Croft, 2 Burr. R. 1188-9. It then becomes necessary to determine whether this contract was that of the defendant, or that of Whittle. It seems, from the evidence in the case when taken together, that the intention of the parties was to bind the company, and not Whittle.
But it is insisted that the court could not receive extrinsic evidence to explain that intention, and that the instrument alone could determine the question. The principle is familiar, that the contract made by the agent as such, is the contract of his principal, and that the former is the instrument by which the contract is effected, and he is not clothed with any legal interest in it, which can render him responsible on the agreement, although in some instances he may sue in his own name. 1 Chit. Pl. 34. And it has been held, that where an agent fails to disclose that he is acting merely as an agent, and the principal is unknown, the latter may, when discovered, be sued on the agreement. 1 Chit. Pl. 39. To bind the principal by the contracts of his agent, it is not material whether they are verbal or in writing, unless required to be in writing by the statute of frauds, the question being, to whom was the credit given, to the agent or to the principal. If, from the agreement itself, it clearly appears that the intention was to bind the agent and not the principal, the agent is held to be liable. But when from the whole instrument there is doubt whether it was the intention to bind the principal or the agent, courts have held that extrinsic evidence may be received to ascertain the intention.
In the case of The Mechanics’ Bank v. The Bank of Columbia, 5 Wheat. R. 326, the Supreme Court of the United States held, where the cashier of the Mechanics’ Bank had drawn a check on the Bank of Columbia, signed by him, in his own name, without any addition to indicate that he signed it officially, that as it Avas doubtful on its face whether it was an official or a private act, parol evidence was admissible to show that he signed it in his official character. In that case the circumstances appearing on the face of the check, which must have been relied on to create the doubt, were, the making it payable to order instead of to bearer, and its bearing date, “ Mechanics’ Bank of Alexandria,” as there is nothing else distinguishing it from ordinary checks drawn by individuals. The court say, “ The only ground on which it can be contended that this check was a private check, is, that it had not, below the name, the letters cas. or ca. But the fallacy of the proposition will at once appear from the consideration, that the consequence would be that all of Paton’s checks must have been adjudged private. For no definite meaning could be attached to these letters without the aid of parole testimony.
“ But the fact that this, on its face, appeared to be a private check, is by no means to be conceded. On the contrary, the appearance of the corporate name of the institution on the face of the paper, at once leads to the belief that it is a corporate and not an individual transaction; to which must be added the circumstances that the cashier is the drawer, and the teller the payee; and the form of ordinary checks deviated from by the substitution of to order for to bearer. The evidence, therefore, on the face of the bill, predominates in favor of its being a bank transaction,” etc. “ But it is enough for the purposes of the defendants to establish that there existed, on the face of the paper, circumstances from which it might reasonably be inferred that it was one or the other.”
“ It is by no means true, as was contended in argument, that the acts of agents derive their validity from professing on the face of them to have been done in the exercise of their agency. In the more solemn exercise of derivative powers, as applied to the execution of instruments known to the common law, rules of form have been prescribed. But in the exercise of the duties of a general agent, the liability of the principal depends upon the facts, 1st, That the act was done in the exercise; and 2nd, Within the powers delegated. The facts are necessarily inquirable into by a court and jury, and this inquiry is not confined to written instruments,” etc. “ But to any act with or without writing, within the scope of the power or confidence reposed in the agent.”
The agreement in the case under consideration, certainly presented on its face as many circumstances to indicate that it was the agreement of the defendant, or to create a doubt as to whether it was theirs, or was that of Whittle, as the case in the Mechanics’ Bank v. The Bank of Columbia. This instrument describes Whittle as the “ resd” engineer of the road. Again, the plaintiffs agree and bind themselves to dig a well for the use of the company, at the side track to be laid by the party of the second part or his assistant, at Middleton depot; the wall of the well was to be built as directed by the engineer in charge of the work, and in another portion of the contract plaintiffs agree to dig and wall the well as required by the engineer. If this language in the agreement does not bear the construction, that the contract was entered into on behalf of, and with the intention of, binding the company, it most clearly leaves it in doubt, whether it is their contract or that of Whittle. And viewing it either way, it was not error to receive parol evidence to explain what was intended by the parties. It is true, that the name of the company was not signed to it; but we have seen by the case of the Mechanics’ Bank v. The Bank of Columbia, that the want of their signature can make no difference, when it appears from the instrument to be their contract, or when it is from its face left in doubt, and extrinsic evidence shows it to have been entered into on their behalf by their authorized agent. And that such signature was not material, was held in the cases of Hodgson v. Dixter, 1 Crunch R. 345 ; Bank of Columbia v. Patterson’s Administrator, 7 Crunch R. 299; and Randall v. Van Vechten et al., 19 J. R. 60.
Thomas testifies, that Whittle, when he gave him instructions in regard to closing this contract with appellees, said the chain-pump was to be furnished by the company, and that he believed Whittle directed him to sign his name on behalf of the company. James Higgins testified, that Wyman, the paymaster and agent of the company, told Middleton to come to Xenia, and he would send an engineer and have the work measured and settle for it. Pleasant Middleton testifies, that a man, whose name he did not know, was at Salem settling and giving notes, and seemed to be acting as agent, in settling debts for the company, offered to give Middleton two hundred dollars and settle the matter. Charles Higgins testifies, that a man, whose name he did not know, came on the cars, and left a force pump, to be put in the well. D. J. Middleton testified, that a man came and measured the well, and left. All of these circumstances seem to render it almost certain, that the company considered the contract as made with them and not with Whittle. But it is not material whether they were legally bound by the contract when it was made or iiot, even if Whittle had no authority to bind them by the agreement, the work was performed for them, and they by their various acts adopted and ratified the contract. Had they not ratified it, then his authority should have been shown, to have held them liable. 19 John R. 60.
The objection, that Whittle could not delegate his authority to Thomas, may be disposed of in the same manner. The ratification of the contract waived that objection, even if it had been well taken, which we by no means admit. As Thomas in closing this contract exercised no discretion, but only followed the instructions given him by Whittle. And in doing so, he was no more than Whittle’s scrivener to draw the contract, and procure the signatures of appellees. And having only followed the specific directions of Whittle, he cannot be said to have had power delegated to him by the agent of the company. If so, every employee and cominon laborer of the company, who does not make his contract with the directors, acts under a delegated power from their agents, and this will not be claimed.
Besides all this, the whole of the circumstances of this case, from the time the contract was entered into to the time suit was brought, together with the question of authority of the agent, the ratification of the contract and the reception of the work, were, by the instruction of the judge who tried the case, left to the jury, and the evidence warranted their finding. For these various reasons the judgment should be affirmed.
Judgment affirmed.
Justice Breese having tried this cause in the court below, took no part in this decision.