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By a law of the United States, it is provided," that “no sum exceeding one dollar shall be recovered from any seaman or mariner” (in the merchant service) by any person, for any debt contracted during the time such seaman or mariner shall actually belong to any ship or vessel, until the voyage, for which such seaman or mariner engaged, shall be ended.”
11. AGENTS AND ATTORNEYS.
Contracts made in proper form, by agents or attorneys duly authorized, are the contracts of the principals or constituents, and of the same binding obligation, as if made personally by themselves: Qui facit per aliam facit per se. If made in terms which do not legally bind the principal, such contracts sometimes bind the agent or attorney. So, if made by those who assume to act as agents or attorneys, but who are not duly authorized as such, the contracts may bind them personally.
It does not, however, necessarily follow, that a contract made by an agent, or by one who assumes to act as agent, and which fails to bind the principal, does therefore become the contract of the person acting as agent, and render him personally responsible for the performance. Though this has been a very prevalent notion, and has the support of some adjudications, it seems to be wholly unsound. Whether the contract be that of the principal, or of the agent, or of neither, whether it bind the one or the other, or be wholly void, depends entirely upon the legal effect of the terms of the contract itself, and the legal authority of the person acting as agent. 1. If a person, assuming to act as agent or attorney, uses such terms as legally import a personal undertaking by himself, and not by the principal; it is his contract and not the principal's, and he alone is personally bound to perform it. In such a case, it is not material, whether he be or be not legally authorized by the supposed principal. 2. If an agent is duly authorized by the principal, and uses such terms as legally import an undertaking by the principal only, the contract is the principal's, and he alone is bound to fulfil it. 3. If one, assuming to act as agent, be not duly authorized as such, though he uses such terms as legally import the principal's sole undertaking, yet the contract is void. It binds neither principal nor agent. It is not the contract of the principal, because the person acting as agent had no authority to contract for him. It is not the contract of the agent, because by the terms of it, it purports to be the contract of another person and not of himself. In such a case, the person assuming to act as agent may, under some circumstances, be liable to the other contracting party, in a special action for damages sustained by his undertaking to act for another without authority. But there seems to be no better legal reason for holding him as a party to the contract, and suing him thereon, than there would be to charge a man as the maker of a promissory note, and sue him as such, because he had forged the signature of another person to the note."
law will enforce the agreement. 3 B. & P. 69, Williams v. Brown. 7 Johns. 324, Kettletas v. Fleet.
* First. Cong. 2d Sess. c. 29, § 4.
* In the case of Reynard c. Becknell (4 Pick. 302), it was held, that as the effect of the statute is “to avoid, or, at least, to suspend a contract, which, but for the statute, might be enforced at law,” the defendant must be held strictly to prove his exemption; and must therefore produce the shipping paper, which he is required to sign by the first section of the statute. * Secondary evidence, however, must of course be allowable in this as in other cases.
* See 2 Ld. Raym. 1418, Frontin v. Small; 2 Strange, 705, S.C.; 5 East, 148, Appleton v. Binks; 3 B. & A. 47, Burrell v. Jones; 1 Greenl. 231,
Public agents are not personally liable on contracts made by them in behalf of the government, unless they expressly pledge their own responsibility. And, though it is said, that the same rules apply to public and to private agents, the question always being, whether the terms of the contract show a personal undertaking or an undertaking by the principal,—yet the rules of construction seem, in some instances, to be more favorable to agents of the government, than to private agents. If a public agent contracts, and puts his own seal, in behalf or on account of the government, he is not personally bound; but it is otherwise, if he promise and puts his own seal, in behalf of an individual or corporation." The reason for a different construction of similar terms, when used by a private, and when used by a public agent, is suggested by chief justice Parsons,” namely, that “the faith and ability of the state, in discharging all contracts, made by its agents in its behalf, cannot in a court of law be drawn into question,”—whereas, in the case of an individual or corporation, it is different; and the other
Stinchfield v. Little; 2 Ib. 14, Harper v Little; 15 Johns. 1, Rathbon v. Budlong; 4 Mass. 595, Tibbitts v. Walker; 16 Ib. 461, Ballou v. Talbot; 9 Ib. 335, Mann v. Chandler; 19 Johns. 565, opinion of Hopkins, Senator; 7 Greenl. 256, Saco Manf. Co. v. Whitney. In 3 Johns. Cas. 70, Dusenburg v. Ellis, 13 Johns. Rep. 307, White v. Skinner, and 2 New Hamp. Rep. 356, Underhill v. Gibson, it was held, that one who makes a promise for another without authority is legally responsible, on the promise. A dictum of Putnam, J., (5 Pick. 253), to the same effect, must be taken with reference to the cases cited by counsel, which were those of executors and guardians, &c. agents by appointment of law, whose powers as such are wholly controlled by law, and, by legal intendment, are as well known to those with whom they contract, as to themselves. * See 1 D. & E. 172, Macbeath v. Holdimand ; Ibid. 674, Unwin v. Wolesley; 1 East, 135, Myrtle v. Beaver; Ibid. 579, Rice v. Chute; 1 Cranch, 345, Hodgson v. Dexter; 1 Mass. 208, Brown v. Austin; 3 Caines's Rep, 69, Sheffield v. Watson; 3 Dallas, 384, Jones v. Le Tombe; 1 Greenl. 234, by Preble, J.; 5 Esp. Rep. 237, Tuck v. Ruggles; 2 Kent's Comm. 494, (1st ed.) * 4 Mass. Rep. 597.
contracting party may well be supposed to desire, and the agent to consent to, a personal stipulation. By attorney is understood a person constituted by another by letter under seal, to transact his business in his absence. By agent is understood a person in any way authorized to act for another. Agent is the genus, attorney a species. The correlate of agent is principal; of attorney, constituent. In common language, however, these terms are intermixed and used with no technical precision; and an equal want of precision is found in the modern books. An attorney or agent cannot bind his principal by deed, (that is, a specialty), unless he be empowered by deed." There is an exception to this rule, in the case of a corporation which has a common seal. A vote of the corporation, authorizing an agent to contract by deed, is sufficient. Whether the same doctrine applies to quasi-corporations, which have no common seal, as towns, parishes, &c., may admit of doubt.” A parol authority is sufficient to warrant a parol agreement; and even an oral authority will warrant a written agreement.” A deed made by an attorney for his constituent must, in order to give it validity as such, be made in the name of the principal." If such deed be executed in the name of the constituent, it is immaterial by what form of words such execution is denoted; whether it be “for A B, CD,” or “A B, by C. D., his attorney,” or “C D, attorney for A B.” s * 7 D. & E. 209; 1 Greenl. 343, Milliken v. Coombs; 2 Ib. 358, Stetson v. Patten; 3 Johns. Cas. 180, Clement v. Brush; 2 Caines's Rep. 254, Green v. Beals; 5 Mass. Rep. 11, Banorgee v. Hovey. * See 2 Pick. 351, 352, Damon v. Granby. * 12 Mod. 564, Anonymous; Chitty on Bills, 27. * See a strong case on this point—Elwell v. Shaw, 16 Mass. Rep. 42; S. C. 1 Greenl. 339. See also 7 Mass. Rep. 14, Fowler v. Shearer; 9 Coke, 76, Combe's case.
* 2 East, 142, Wilks v. Back; 4 Hen. & Munf. 184, Jones's Devisees v. Carter. See 3 Am. Jurist, 76, et seq.
“The conveyance must be the act of the principal, and not of the attorney; otherwise the conveyance is void. And it is not enough for the attorney, in the form of the conveyance, to declare that he does it as attorney; for he being in the place of the principal, it must be the act and deed of the principal, done and executed by the attorney in his name.”"
A subsequent ratification of an agent's or attorney's contract is tantamount to a previous authority: Omnis ratihabitio retrotrahitur et mandato aequiparatur.” A parol contract may be ratified by a parol recognition, or even by silence or conduct that implies an acquiescence. And though a parol ratification is not sufficient to give validity to a deed made by an agent, without authority, under seal, yet if the principal gives the agent an antedated authority under seal, he will thereafter be estopped to deny his previous authority.”
The general rule is, that the contract of one partner, in the course of the partnership business, and material to the carrying on of the same, is legally the contract of the whole firm, and binding on them, although it violate any private arrangements of the parties among themselves.
If the contract be reduced to writing, it must be made in the name of the firm. If made in the name of one partner only, it will generally be regarded as his individual act or agreement.
* By chief justice Parsons, 7 Mass. Rep. 19.
* Branch's Maxims, 103.
* See, on the subject of ratification, 13 Mass. Rep. 361, Pratt v. Putnam; Ib. 379, Fisher v. Willard; 17 Ib. 103, Amory v. Hamilton; 1 Greenl. 343, Milliken r. Coombs; 2 Ib. 358, Stetson v. Patten; 3 Ib. 429, Thorndike v. Godfrey; 1 Johns. Cas. 110, Towle v. Stevenson; 2 Ib. 424 Armstrong, v. Gilchrist; 1 Caines's Rep. 526, Codwise r. Hacker.