COLEMAN, J.
The first and most important question presented for our consideration in this case is, whether by law tho defendant in the-court below can be charged personally on tho -covenant sued on 1 The covenant is in these words :
c‘ The State of Alabama, Benton County.
"u Know all men by these presents, that we, Joel Graham, •John W» Whiteside and William Champion’, commissioners appointed by the honorable the Judge of the County Court of said county, to sell the real estate of Owen Jenkins, deceased, are held and firmly bound unto John B. Jennir.gs in the penal sum of $998, for the payment of which well and truly to be made, we bind ourselves as commissioners jointly and severally, firmly by these presents. Signed and sealed, this 2d of Oct. 1841.
“ The condition of the above obligation is such, that whereas the above bounden, Joel Graham, John W. Whiteside and Wnt. Champion, have this day sold to John-B. Jennings one forty acre tract of land lying in the south-west corner of the 16th section ; also, thirty acres of land known as the mill place, all in township 14, range 9, east, in the Coosa land district, on a credit'of one and two years, in equal instalments, and have taken [788]*788the notes of the said John B. Jennings, with interest from date,, as securities; one note payable twelve months after date, for the sum of $248 50 cts., with interest from date, and the other for the same amount, with interest from date, due twenty-four months after date; both notes bear date with this obligation. Now when said John B. Jennings pays off said notes and interest, then the commissioners shall make or cause to be made to-the said John B. Jennings, titles in fee simple to said land above described, on the happening of which, then this obligation to be void, and not else.’ Witness our hands and seals, day and date above written. (Signed) Joel Gkaham, [seal.].
John W. Whiteside, [seal.]
Wm. Champion, [seal.]”'
I think it must be admitted, upon a proper consideration of the language of the bond, in connection with the other proof in the case, that it was the intention of the defendant to bind the estate of the deceased, in the event of a failure to make the titles, and not to bind himself personally. I think it also evident, that the plaintiff gave his notes and accepted the covenant under the belief that he received a good and effectual obligation in the covenant to make to him a fee simple title to the land. It will be perceived, upon an examination of the case as stated' in the record, and of the statute (Clay’s Dig. 225,) under which the sale of the land was made, that the defendant had no authority to bind the estate in the manner he attempted to bind it. The question, therefore, occurs, wrhether the defendant thus failing to bind the estate, thereby became personally liable on the covenant!' It is laid down as the general rule of law on this subject, that when a party contracts “in autre droit” and fails to bind his principal, by either acting without authority, or beyond his authority, he is to be held personally responsible. The leading American authority in support of this doctrine, is the case of Sumner, adm’r, v. Williams et al., 8 Mass. 208, in which it was held,, in substance,, that administrators selling real estate by order of court, as in this case, were subject personally to the payment of damages, for defect of title,, contrary to their intention when they entered- into the contract, and when they were to derive no personal benefit from the execution of the trust as administrators by the sale of the estate. There is an able dissenting opinion in the case by Judge Sedgwick, but the doe-[789]*789trine held by the majority of the court was subsequently fully affirmed in the case of Whiting v. Dewey, 15 Pick. 433. In this case it was held, that where the guardians of a minor covenanted, in their capacity as guardian, that the father of the minor died seized of the premises, and that they in their capacity aforesaid, in right of the minor, were lawfully seized of the premises, the guardians were personally liable on those covenants.
The exception to the foregoing general rule is, where the party contracting is a public agent and contracts on the public account* See the cases of Macbeath v. Haldimand.—1 Durn. & E. 172; Unwin v. Wolseley, 1 ib. 674; Hodgson v. Dexter, 1 Cranch, 345; Brown v. Austin, 1 Mass. 208; Walker v. Swartwout, 12 Johns. 444, in all of which the parties sued contracted on the public account, and were therefore held not liable. In all the cases of this class, it will be found that the decisions are based upon grounds of public policy; that is, if agents for the government or the public should be held personally liably on contracts avowedly made by them on public account, few persons would be found willing to undertake such agencies, and the public service might be delayed or prejudiced.' I think it is correctly argued, that if the mere intention of the agents not to bind themselves, as shown in this class of cases, could have been deemed sufficient for their defence, the court would not have resorted to the dangerous ground of State policy to relieve them; and that, placing the exception to the rule on this ground alone, goes far to establish the rule itself.
It is strongly urged that the rule bears hardly in this case, as the defendant received no benefit from the contract, and did not intend to bind himself; but the rule has stood the test of time, and is well sustained by reason and authority. The legal presumption is, that the plaintiff was induced to pay the purchase money for the land in consideration of the defendant’s undertaking to make a good title, and if the defendant neglected to inform himself as to his personal liability, the defendant, and not the plaintiff, ought to lose by. that negligence.
There are many analogous cases going strongly to sustain the foregoing general rule. As in the case of Appleton v. Binks, 5 East, 148, where the attorney without any authority stipulated for his principal, and was held personally liable. In Thatcher v. Densmoore, 5 Mass. 595, it was decided that the guardian of an [790]*790insane person, who had given promissory negotiable notes to .the plaintiff for the proper debt of his ward,, and' expressed in the notes that he did it as guardian, was bound in his private capacity. In Barry v. Rush, 1 Durn. & E. 691, where the defendant bound himself, as administrator to abide by an award- to ■ be made touching matters in dispute between his intestate and another, and the arbitrators awarded that he as administrator should pay,, &c.,.it was held that he could not plead plene administra-vit to debt on the bond-.. In these cases it is plain that the parties contracted with the- intent not to bind themselves, but to bind their principals only, and yet they were held personally liable, because they had-no-authority to bind their principals; nor-does it appear that they personally received any consideration-, for their undertaking..
Secondly, it is contended that there was no sufficient consideration for the execution of the bond sued on, &c. In addition to the cases already referred to, I think it is only necessary to advert to the definition of a legal consideration, to see that this objection is untenable. — Story, in his work on Contracts, § 113,. says, that u
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COLEMAN, J.
The first and most important question presented for our consideration in this case is, whether by law tho defendant in the-court below can be charged personally on tho -covenant sued on 1 The covenant is in these words :
c‘ The State of Alabama, Benton County.
"u Know all men by these presents, that we, Joel Graham, •John W» Whiteside and William Champion’, commissioners appointed by the honorable the Judge of the County Court of said county, to sell the real estate of Owen Jenkins, deceased, are held and firmly bound unto John B. Jennir.gs in the penal sum of $998, for the payment of which well and truly to be made, we bind ourselves as commissioners jointly and severally, firmly by these presents. Signed and sealed, this 2d of Oct. 1841.
“ The condition of the above obligation is such, that whereas the above bounden, Joel Graham, John W. Whiteside and Wnt. Champion, have this day sold to John-B. Jennings one forty acre tract of land lying in the south-west corner of the 16th section ; also, thirty acres of land known as the mill place, all in township 14, range 9, east, in the Coosa land district, on a credit'of one and two years, in equal instalments, and have taken [788]*788the notes of the said John B. Jennings, with interest from date,, as securities; one note payable twelve months after date, for the sum of $248 50 cts., with interest from date, and the other for the same amount, with interest from date, due twenty-four months after date; both notes bear date with this obligation. Now when said John B. Jennings pays off said notes and interest, then the commissioners shall make or cause to be made to-the said John B. Jennings, titles in fee simple to said land above described, on the happening of which, then this obligation to be void, and not else.’ Witness our hands and seals, day and date above written. (Signed) Joel Gkaham, [seal.].
John W. Whiteside, [seal.]
Wm. Champion, [seal.]”'
I think it must be admitted, upon a proper consideration of the language of the bond, in connection with the other proof in the case, that it was the intention of the defendant to bind the estate of the deceased, in the event of a failure to make the titles, and not to bind himself personally. I think it also evident, that the plaintiff gave his notes and accepted the covenant under the belief that he received a good and effectual obligation in the covenant to make to him a fee simple title to the land. It will be perceived, upon an examination of the case as stated' in the record, and of the statute (Clay’s Dig. 225,) under which the sale of the land was made, that the defendant had no authority to bind the estate in the manner he attempted to bind it. The question, therefore, occurs, wrhether the defendant thus failing to bind the estate, thereby became personally liable on the covenant!' It is laid down as the general rule of law on this subject, that when a party contracts “in autre droit” and fails to bind his principal, by either acting without authority, or beyond his authority, he is to be held personally responsible. The leading American authority in support of this doctrine, is the case of Sumner, adm’r, v. Williams et al., 8 Mass. 208, in which it was held,, in substance,, that administrators selling real estate by order of court, as in this case, were subject personally to the payment of damages, for defect of title,, contrary to their intention when they entered- into the contract, and when they were to derive no personal benefit from the execution of the trust as administrators by the sale of the estate. There is an able dissenting opinion in the case by Judge Sedgwick, but the doe-[789]*789trine held by the majority of the court was subsequently fully affirmed in the case of Whiting v. Dewey, 15 Pick. 433. In this case it was held, that where the guardians of a minor covenanted, in their capacity as guardian, that the father of the minor died seized of the premises, and that they in their capacity aforesaid, in right of the minor, were lawfully seized of the premises, the guardians were personally liable on those covenants.
The exception to the foregoing general rule is, where the party contracting is a public agent and contracts on the public account* See the cases of Macbeath v. Haldimand.—1 Durn. & E. 172; Unwin v. Wolseley, 1 ib. 674; Hodgson v. Dexter, 1 Cranch, 345; Brown v. Austin, 1 Mass. 208; Walker v. Swartwout, 12 Johns. 444, in all of which the parties sued contracted on the public account, and were therefore held not liable. In all the cases of this class, it will be found that the decisions are based upon grounds of public policy; that is, if agents for the government or the public should be held personally liably on contracts avowedly made by them on public account, few persons would be found willing to undertake such agencies, and the public service might be delayed or prejudiced.' I think it is correctly argued, that if the mere intention of the agents not to bind themselves, as shown in this class of cases, could have been deemed sufficient for their defence, the court would not have resorted to the dangerous ground of State policy to relieve them; and that, placing the exception to the rule on this ground alone, goes far to establish the rule itself.
It is strongly urged that the rule bears hardly in this case, as the defendant received no benefit from the contract, and did not intend to bind himself; but the rule has stood the test of time, and is well sustained by reason and authority. The legal presumption is, that the plaintiff was induced to pay the purchase money for the land in consideration of the defendant’s undertaking to make a good title, and if the defendant neglected to inform himself as to his personal liability, the defendant, and not the plaintiff, ought to lose by. that negligence.
There are many analogous cases going strongly to sustain the foregoing general rule. As in the case of Appleton v. Binks, 5 East, 148, where the attorney without any authority stipulated for his principal, and was held personally liable. In Thatcher v. Densmoore, 5 Mass. 595, it was decided that the guardian of an [790]*790insane person, who had given promissory negotiable notes to .the plaintiff for the proper debt of his ward,, and' expressed in the notes that he did it as guardian, was bound in his private capacity. In Barry v. Rush, 1 Durn. & E. 691, where the defendant bound himself, as administrator to abide by an award- to ■ be made touching matters in dispute between his intestate and another, and the arbitrators awarded that he as administrator should pay,, &c.,.it was held that he could not plead plene administra-vit to debt on the bond-.. In these cases it is plain that the parties contracted with the- intent not to bind themselves, but to bind their principals only, and yet they were held personally liable, because they had-no-authority to bind their principals; nor-does it appear that they personally received any consideration-, for their undertaking..
Secondly, it is contended that there was no sufficient consideration for the execution of the bond sued on, &c. In addition to the cases already referred to, I think it is only necessary to advert to the definition of a legal consideration, to see that this objection is untenable. — Story, in his work on Contracts, § 113,. says, that u a- valuable consideration is-a legal consideration emanating from some injury or inconvenience to the one party, or from some benefit to the other that, in order to constitute a sufficient consideration, it is sufficient that sométhing valuable flows from the person to whom it is made, and that the promise is the inducement to the transaction.-2 Black Com. 297; Story on Part. 183; Violett v. Patton, 5 Cranch, 142. I think it cannot be doubted, that the execution of the notes by the plaintiff for the purchase money in this case, constituted a sufficient consideration.
Thirdly, it is urged that the true measure of damages in this -case is the purchase money and' interest thereon from the date of its payment, and that the court erred in instructing the jury to the contrary.
There is some contrariety in the decisions of the courts of the different States on this question. In Kentucky, it has been held that on a covenant to convey, where the vendor is, without fraud, incapable of making a title, the rule of damages is the purchase-money with interest, &c., but where the vendor acted in bad faith, the plaintiff would be entitled to recover damages for the enhanced value of the land.—McConnell v. Dunlap, Hardin’s [791]*791R. 41; Patrick v. Marshall, 2 Bibb 40; Fisher’s Heirs v. Kay, 2 ib. 434. In New York the same doctrine was held in the case of Baldwin v. Munn, 2 Wend. 399. A different rule is laid down by the Supreme Court of the United States. In Hopkins v. Lee, 6 Wheat. 109, it was decided that in an action of covenant for not conveying -land, &c. the value of the land at the time it ought to have been conveyed, was the measure of damages. In this case the following language was held by the court: “ The price being settled by the contract, which is generally the case, makes no difference, nor ought it to make any; otherwise the vendor, if the article has arisen in value, would always have it in his power to. discharge himself from the contract and put the enhanced value in his pocket; nor can it make any difference in principle whether the contract be for the sale of real or personal property,” &c.
In Hill v. Hobart, 16 Maine, 164, it was held that the proper and legal compensation was the value of the land at the time of a demand made and a refusal or neglect to perform, and that in finding that value, the jury ought to take into consideration the price agreed to by the parties, and such other evidence as there was in the case. — See Sedgwick on Meas, of Dam. 191.
In Pinkston v. Huie, 9 Ala. 252, although the court avoided expressing an-opinion on the general question raised here, it was decided that the proper measure of damages upon a bond, conditioned that a third person shall convey a title to land, is the value of the land when the title was to be conveyed, with interest on that value to the time of trial.
My own opinion is, that the instructions given were correct, but I conceive it is unnecessary for this court to express an opinion on this point, because if the court erred, as insisted on, the error resulted to the benefit of the defendant. It appears from the record (whieh purports to disclose all the testimony .in the case) that the plaintiff recovered a smaller amount of damages than he would have been entitled to under the rule insisted, tm by the defendant.
The judgment of the court below is affirmed.