CHAPTER XV. LIABILITIES EX CONTRACTU. SECTION I.-Deeds.-Liability of a covenantor who has not been made a party to a deed, but who seals and delivers it-Covenants and obligations by one person on behalf of another-Liability of a covenantor acting on behalf of the crown-Ascertainment and identification of the covenantor or obligor-Covenants in assumed and adopted names-Covenants by partners in the trading name of their firm. SECTION II.-Simple contracts.—Ascertainment of the party to be charged upon simple contracts— Admissibility of oral evidence to shift the liability from an agent to his principal-Subsequent ratification of a written contract by a principal rendering him responsible upon it-Of the liability upon bills of exchange, promissory notes, and money orders signed by one person on behalf of another Agreements entered into by agents in their own names-Agreements and undertakings expressed to be made by one person on behalf of another-Contracts by persons describing themselves as commissioners of public works, trustees, executors, &c.-Liabilities ex contractu of managing committees of clubs, eleemosynary, and charitable institutions, &c.-Contracts of parish officers, churchwardens, overseers, and vestrymen. SECTION I. LIABILITIES UPON CONTRACTS UNDER SEAL. (a.) DEEDS inter partes.-Although a person not made a party to certain deeds inter partes cannot by the common law, as previously mentioned, (ante, 241,) take advantage thereof by way of action, and sue upon covenants entered into with him by one who is not a party thereto, yet he may render himself liable to be sued thereon by sealing and delivering the deed; for "one who is no party to a deed may covenant with another who is a party, and thereby be bound . . . . . he may oblige himself by the deed if there be express words to it, and the deed be sealed by him." (b) Covenants and obligations by one person on behalf of another.-But (a) As to the right of action upon deeds, and the parties to be made plaintiffs in such actions, see ante, 238. (b) Holt, C. J., Salter v. Kidgeley, Holt, 210; Carth. 76, s. c.; 1 Show, 56, s. c. the liability, in the case of deeds, is always confined to the person with whom the contract is in express terms made, and does not extend to the person on whose behalf, and for whose benefit, it is expressed to be made. We have already seen that such a person has no right of action thereon (ante, 242, 256); his inability to sue, therefore, is naturally followed by a corresponding exemption from liability. If an individual in a private capacity, not acting on behalf of the government, covenants in his own name under his own hand and seal for the act of another, he is personally bound by his covenant, although he describes himself in the deed as covenanting "for and on the part and behalf" of such other person; for a man may bind himself for the act of another, and to pay out of a fund not his own, and will be liable in either case." 66 By certain articles of agreement under seal, made between the plaintiff of the one part, and the defendant for and on the part and behalf of the Right Honourable Lord Viscount Rokeby of the other part, the defendant, for himself, his heirs, executors, &c., on the part and behalf of the said Lord Viscount Rokeby, did covenant with the plaintiff that Lord Viscount Rokeby, his heirs, &c., should pay to the plaintiff 6,0007., and the court said that it was impossible to contend, that where one covenants in his own name for another, he is not to be bound by his covenant; that there was nothing unusual or inconsistent in the nature of the thing that one should covenant with another, that a third party should do a certain thing, as that he should go to Rome; that the party with whom the covenant was made might prefer the security and liability of the covenantor to that of the third party, who was to do the act stipulated to be done, and if the defendant covenanted in his own name, and put his own seal to the deed, he gave his own personal security and liability for the performance of the contract. (c) In an action of debt upon a bond the condition appeared to be that G. F., acting on behalf of J. F., should submit to and abide by the award of certain arbitrators touching divers disputes and differences between the plaintiff and J. F.; and it was held that G. F. was personally bound by this submission, though it was not made on his account, but for and on behalf of another. (d) In an action of debt upon a deed poll, it appeared that the defendant had sealed and delivered a written instrument to the effect following:Memorand.—that I have received of Edward Talbot, (the plaintiff's testator,) to the use of my master, Mr. Serjeant Gawdy, the sum of 407., (c) Appleton v. Binks, 5 East, 148; Tindal, C. J., 14 Law J., N. S. (Q. B.) 228. (d) Cayhill v. Fitzgerald, 1 Wils. 28, 58. Bacon v. Dubarry, 1 Ld. Raym. 246. to be paid at Michaelmas next: and it was held that the defendant was personally liable for the repayment of the money, although it was expressed to be received by him for another's use; but if the defendant, in the clause of repayment, had said "to be repaid by my master," he would not have been chargeable upon the instrument. (e) Covenants by directors, trustees, commissioners, &c.-In an action of covenant on articles of agreement under seal, made between the plaintiffs of the one part, and the defendants, directors of a mining company, of the other part, the agreement as set forth recited that the defendants had been chosen to act as directors of the company, and as such directors they had agreed with the plaintiffs to purchase the East Downs mines at the sum of 4,5007.," to be paid and payable out of the monies to be raised by the said company." And the said directors parties thereto did thereby promise and agree that out of the said payments so to be made by the shareholders of the company they would pay to the plaintiffs the said sum of 4,5007. And it was held that the directors were personally responsible upon the agreement for the payment of the money. (ƒ) Of the liability of COVENANTORS acting on behalf of the CROWN.— When upon the face of a contract under seal it appears that the covenantor is an officer acting in a public capacity in discharge of his duty to the crown or the country, he is not personally liable for the performance of the contract unless he gives his own undertaking, and it plainly appears to have been the intention of the contracting parties that he should himself be responsible for the performance of the act covenanted to be done. A captain in the navy chartered a vessel, on account of government, to be employed in the public service in the conveyance of French pr:soners of war from St. Helena to a French port, and by the charter party of affreightment under seal, expressed to be made between him by the name and description of "Captain Wolseley, commander of his Majesty's ship Magnanime, and senior officer of his Majesty's ships at St. Helena, (there being no commissary for prisoners there,) on account of his Majesty of the one part," and the plaintiff, described as one of the agents of his Majesty's ship Hannibal of the other part;" it was agreed that the prize ship, Le Sevière, should" be employed as a cartel to carry the French prisoners taken by the Hannibal to the first port in France;" that the defendant," on account of the king," should put on board a commis (e) Talbot v. Godbolt, Yelv. 137; 5 B. Abr. 372, (f) Hancock v. Hodgson, 12 Moore, 504; 4 Bing. 269, s. c. sion officer to command her, and a midshipman to assist him; that if any accident should happen to the said cartel," government should be answerable;" and that "the passage of the prisoners" should be settled by the principal officers and commissioners of his Majesty's navy, as they, in justice to the captors, should think meet, and at such rate as had been usual in similar cases; and that if any provisions should remain at the end of the service, restitution should be made to government for the same, and that the value should be deducted out of such bills as might be granted for that vessel's service." The voyage having been performed, and the prisoners carried to Port l'Orient, the plaintiff brought an action against the defendant, Captain Wolseley, for the freight; but it was held that it plainly appeared upon the face of the deed that the government and not Captain Wolseley was to be answerable for the payment of the freight, and the performance of the contract; that the defendant appeared throughout to be acting in discharge of his duty as a public officer and servant of the government, and intending to guard himself from personal responsibility by stipulating that "government should be answerable," and that it would be detrimental to the public service to hold that governors and commanders-in-chief were personally responsible upon contracts entered into by them in the execution of their duty, unless the intention of the contracting parties that they should be so liable was plainly manifested upon the face of the contract. (g) ASCERTAINMENT and IDENTIFICATION of the COVENANTOR or OBLIGOR. In all contracts, under seal, there must be some designatio persona or description of the contracting party. Generally speaking the name of the covenantor or obligor appears in the body of the deed, but there is a sufficient designation and description of the party to be charged if the name is written at the foot of the instrument. A deed alleged to have been made between the plaintiff and the defendant began as follows:-"Tis agreed that a grey nag bought of J. S. by Mr. Frampton shall run twenty-five miles in two hours for £-&c. In witness whereof we have set our hands and seals." The plaintiff and defendant subscribed their names at the bottom of the writing, and afterwards sealed and delivered the document as their deed, and it was held that the omission to state the names of the contracting parties in the body of the instrument, was supplied by the signatures at the bottom, and that it sufficiently appeared whose deed it was. (h) Allen v. (g) Unwin v. Wolseley, 1 T. R. 674. Macbeath v. Haldimand, 1 T. R. 180. Waldegrave, 2 Moore, 628. (h) Nurse v. Frampton, 1 Raym, 2; 1 Salk 214; s. c. Anon. 4 Ed. 2, cited Cro. Eliz. 57. A man may bind himself by deed either in his own name, or by some acquired or adopted name, title, or description. "It is a principle of law, that if a man executes a deed by any name, he will be estopped in an action upon the instrument, from disputing that his name is different from that which he has adopted." A bond, entered into and executed by the defendant Davis, who was in partnership with Marsh, purported to be the joint and several bond of " Davis and Marsh;" there was but one seal to the instrument, and against this seal was written the name "Davis and Marsh." The defendant had no authority to bind Marsh, and the deed being void as to the latter, it was contended that it was void as against the defendant also, inasmuch as the designatio personæ did not apply to him; but the court held that as he had described himself in the deed by the name of “Davis and Marsh," he was estopped from showing that his name was Davis only.(i) If a man executes a bond in the name of Thomas, he is estopped by the bond from pleading that his name is Joseph. If he is described as James in the body of the deed, and executes it in the name of John, by writing that name against the seal, and is sued in the name of John, and pleads the misnomer, the plaintiff may rely on the estoppel, and the deed is conclusive evidence of the adoption by the defendant of the names both of James and John.(k) When a man appears by one name in the body of the deed, and by another at the foot of it, when he executes the instrument, he is liable in either name. "If he pleads in abatement," observes Chambre, J., "it may be replied that he was known as well by the one name as by the other, and the deed will be evidence of it."(7) If a man, therefore, enters into or executes a deed in an assumed or feigned name, he may be sued, and judgment obtained and execution issued against him. in such assumed or feigned name, it being necessary only to establish the fact of his identity. (m) If having executed a deed in an assumed name, he is sued in his real name, and the difference of names appears upon the face of the record, there must be an averment to explain the discrepancy. "If a declaration against a defendant by one christian name-as, for instance, Joseph,-states that he executed a bond by the name of Thomas, and there be no averment to explain the difference, such as that he was known by the latter name at the time of the execution, such a declaration would be bad on demurrer or in arrest of judgment." (n) In all cases when (i) Elliott v. Davis, 2. B. & P. 339. (k) Gould v. Barnes, 3 Taunt. 505; Lind v. Hook, Mod. cas. 225; cited Cro. Eliz. 897, n. (a.) (1) Gould v. Barnes, 3 Taunt. 505; Cromwell v. Grunsden, 2 Salk, 462; 1 Ld. Raym, 335. s. c.; Williams v. Bryant, 5 M. & W., 455. (n) Parke B. Williams v. Bryant, 5 M. & W. 454. |