{ "id": 8698586, "name": "A. S. BRYSON v. H. S. LUCAS", "name_abbreviation": "Bryson v. Lucas", "decision_date": "1881-01", "docket_number": "", "first_page": "680", "last_page": "688", "citations": [ { "type": "official", "cite": "84 N.C. 680" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "5 Jones, 177", "category": "reporters:state", "reporter": "Jones", "case_ids": [ 11276706 ], "opinion_index": -1, "case_paths": [ "/nc/50/0177-01" ] }, { "cite": "4 Hill, 351", "category": "reporters:state", "reporter": "Hill,", "opinion_index": -1 }, { "cite": "12 Ired., 96", "category": "reporters:state", "reporter": "Ired.", "weight": 2, "opinion_index": -1 }, { "cite": "3 Jones, 376", "category": "reporters:state", "reporter": "Jones", "case_ids": [ 2086682 ], "opinion_index": -1, "case_paths": [ "/nc/48/0376-01" ] }, { "cite": "7 Jones, 483", "category": "reporters:state", "reporter": "Jones", "case_ids": [ 2088579 ], "opinion_index": -1, "case_paths": [ "/nc/52/0483-01" ] }, { "cite": "2 Dev., 90", "category": "reporters:state", "reporter": "Dev.", "case_ids": [ 11276276 ], "weight": 3, "opinion_index": -1, "case_paths": [ "/nc/13/0090-01" ] }, { "cite": "2 Dev. Eq., 437", "category": "reporters:state", "reporter": "Dev. Eq.", "case_ids": [ 8693377 ], "opinion_index": 0, "case_paths": [ "/nc/17/0437-01" ] }, { "cite": "1 Dev. & Bat. Eq., 158", "category": "reporters:state", "reporter": "Dev. & Bat. Eq.", "case_ids": [ 11274545 ], "opinion_index": 0, "case_paths": [ "/nc/21/0158-01" ] }, { "cite": "12 Ired., 95", "category": "reporters:state", "reporter": "Ired.", "case_ids": [ 8685438 ], "opinion_index": 0, "case_paths": [ "/nc/34/0095-01" ] }, { "cite": "10 Wend., 87", "category": "reporters:state", "reporter": "Wend.", "case_ids": [ 2012891 ], "opinion_index": 0, "case_paths": [ "/wend/10/0087-01" ] }, { "cite": "2 Wheat., 45", "category": "reporters:scotus_early", "reporter": "Wheat.", "case_ids": [ 1444875 ], "opinion_index": 0, "case_paths": [ "/us/15/0045-01" ] }, { "cite": "10 Mass., 595", "category": "reporters:state", "reporter": "Mass.", "opinion_index": 0 }, { "cite": "2 Mass., 26", "category": "reporters:state", "reporter": "Mass.", "opinion_index": 0 }, { "cite": "6 Jones, 548", "category": "reporters:state", "reporter": "Jones", "case_ids": [ 11278750 ], "opinion_index": 0, "case_paths": [ "/nc/51/0548-01" ] }, { "cite": "4 Hill, 351", "category": "reporters:state", "reporter": "Hill,", "opinion_index": 0 }, { "cite": "3 Jones, 376", "category": "reporters:state", "reporter": "Jones", "case_ids": [ 2086682 ], "opinion_index": 0, "case_paths": [ "/nc/48/0376-01" ] }, { "cite": "7 Jones, 483", "category": "reporters:state", "reporter": "Jones", "case_ids": [ 2088579 ], "opinion_index": 0, "case_paths": [ "/nc/52/0483-01" ] }, { "cite": "2 Dev., 90", "category": "reporters:state", "reporter": "Dev.", "case_ids": [ 11276276 ], "opinion_index": 0, "case_paths": [ "/nc/13/0090-01" ] } ], "analysis": { "cardinality": 709, "char_count": 14212, "ocr_confidence": 0.467, "pagerank": { "raw": 1.9449696240946737e-07, "percentile": 0.7359961912837389 }, "sha256": "cae7a6912ebff071c67b316b35b5e75dcf0854fe44d09f80f697e5bf63c2357c", "simhash": "1:ef1d18f6c850c4b4", "word_count": 2554 }, "last_updated": "2023-07-14T15:59:35.813846+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "A. S. BRYSON v. H. S. LUCAS." ], "opinions": [ { "text": "Smith, O. J.\nThe record presents the sole question, whether the instrument set out in the complaint is the bond of the defendant on which he is personally liable.\nIt is settled by adjudications in this state that a contract made in the name of another by one professing but not possessing authority to bind, is the contract of neither, yet the former may be liable upon the contract implied in receiving the consideration, and the latter in damages for the false and fraudulent representation of such agency. Potts v. Lazarus, 2 Car. Law Rep., 83; Delins v. Cawthorne, 2 Dev., 90. And the principle extends to a partnership., one of whose members without legal authority undertakes to- execute a note under seal in the name of the firm. Fronebarger v. Henry, 6 Jones, 548; Fisher v. Pender, 7 Jones, 483,\nIt is manifest that this is not the bond of the company, nor of its chief officer, not only for a defect of power in the agent to make it, but for the further reason that in form it does not undertake to impose an. obligation on either unless that effect follows the use of the words superadded to tho signature. Undoubtedly a promissory note without seal thus signed would be construed to create a direct contract with the party on whose behalf and for whose benefit it thus appears to have been made. It is so held in Bank of Cape Fear v. Wright, 3 Jones, 376; McCall v. Clayton, Busb., 422, and numerous eases cited in Story on Agency, \u00a7 144. But it is otherwise when the contract is authenticated by seal, and it then becomes the deed of the party to whose name the seal is annexed, although described as agent, or is an absolute nullity, binding no one.\nIn our opinion this writing is in effect as well as in form the personal bond of the defendant, notwithstanding the mode of its execution and signature, and this proposition is fully supported by authority. No where in the body of the note, is the name of any supposed principal mentioned or referred to. Its language is entirely personal \u2014 \u201cI promise to pay Albert S. Bryson \u201d \u2014 and it concludes with the words, \u201c witness my hand and seal,\u201d and then the seal is affixed to the name of the promisor, the defendant. While the consideration recited is the sale of a tract of land of which this is a part of the purchase money, it is not stated to whom the sale was made, and this only appears from the plaintiff\u2019s covenant, referred to as of the same date, and which when produced bears an earlier date. But waiving the discrepancy in the bonds, there is no incongruity in the defendant\u2019s assuming a personal obligation for the payment of the purchase money for the land sold and to be conveyed to another, nor does this fact change or impair the individual liability incurred. To substantiate this construction of the covenant, we shall refer to some decided cases, called to our attention in the well considered brief of the plaintiff\u2019s counsel.\nIn Combe\u2019s case, 5 Coke, 135, it was resolved by the court, \u201c that when any one has authority as attorney to do any act, he ought to do it in his name who gives the authority, for he appoints the attorney to be in his place, and to represent his person, and therefore the attorney cannot do it in his own name, nor as his proper act, but in the name and as the act of him who gives the authority.\u201d\nQuoting and approving the doctrine announced, Savage, J., remarks: \u201c All the subsequent cases agree in the law as thus laid down by Coke. Ther.e is no contradiction on the subject.\u201d Stowe v. Wood, 7 Cowen, 453. To the same purport is Stackpole v. Arnold, 2 Mass., 26.\n\u201cI accede to the doctrine in all the cases cited,\u201d is the language of Grose, J., in Wilkes v. Back, 2 East., 142, \u201c that an attorney must execute his power in the name of his principal, and not in his own name.\"\nIn Appleton v. Binks, 5 East., 147, the defendant for himself, his heirs, executors, &c., on the part and behalf of the said Lord Viscount Rokeby, did thereby covenant, '&c., and the consideration was received by Lord Eokeby. The court held the covenant to be personal, and say : \u201c It is impossible to contend that where one covenants for another he is not bound by it,' the covenant being in his own name for himself and his heirs.\u201d See also Dewitt v. Walton, 5 Selden, 571.\nIn Tippett v. Walker, 10 Mass., 595, the agreement was entered into by the defendants, a committee appointed by the directors of the Middlesex Turnpike company, and the court say : \u201c To the agreement the defendants have not (if thej\u2019\u2019 had legal authority) put the seals of the directors or the seal of the corporation. It is therefore their deed, and if it were not their covenant, it is not the covenant of any person or corporation, and the apparent interest of the plaintiff to ham his payments secured by a covenant will be defeated.\u201d\nIn Duvall v. Craig, 2 Wheat., 45, Judge Story says: \u201cAn agent or executor who covenants in his own name and yet describes himself as agent or executor, is personally liable for the obvious reason that the one has no principal to bind, and the other substitutes himself for his principal.\u201d In the note to this case it is added : \u201c When a person acts as agent for another, if he executes a deed for his principal and does not mean to bind himself personally, he should take care to execute the deed in the name of his principal, and state the name of his principad, only, in the body of the deedf\nIn the courts of New York the doctrine has been repeatedly and emphatically announced. In Townsend v. Hubbard, 4 Hill, 351, the articles of agreement were between Isaiah Townsend and certain others named, \u201cby Harvey Baldwin their attorney of the first part, and the second party \u201d and concluded; \u201cIn witness whereof the said Harvey Baldwin as attorney of the party of the first part, and the said parties of the second part, have hereunto set their hands and seals,\u201d -and the name of the attorney was subscribed thereto with his seal, and the court declared the covenant to be personal, and say : \u201cIn the case of a sealed instrument executed by an attorney, duly authorized by a person, under seal, no particular form of words is necessary to render it valid and binding upon the principal, provided it appears upon the face of the instrument that it was intended to be executed as the deed of the principal, and that the seal affixed to the instrument is his seal and not the seal of the attorney or agent merely f\nSo Gardiner, C. J., lays down the rule in similar words; \u201c When a party is sought to be charged upon, an express contract, it must at least appear upon the faxe of the instrument that the agent undertook to bind him as principal.\u201d DeWitt v. Walton, 5 Seld., 571. See also Spencer v. Field, 10 Wend., 87.\nIn Quigley v. DeHaas, 82 Penn. St. Rep., 267, the defendants in error entered into a contract describing themselves as \u201c representing the Clinton and Potter County Navigation Company of the first part,\u201d with a concluding clause \u2014 \u201c In witness whereof we have hereunto set our hands and seals,\u201d and affixing their individual names and seals. They were declared personally bound, and. this language is used by the court: \u201c The action was well brought against Quigley and Bailey. Though they contract as agents for the benefit of the Navigation Company, yet they do so under their own individual seals and hence become individually liable.\u201d In harmony with these views is the doctrine laid down by Judge Story and Chancellor Kent. Story on Agency, \u00a7 153, el seq.; 2 Kent Com., 931.\nIn Whitehead v. Reddick, 12 Ired., 95, the body of the contract as 'Well as the mode of subscription shows that the covenant -was that of the \u201cAlbermale Swamp Land Company,\u201d for whom the plaintiff was acting, and the subject of the contract was the making shingles on the land of the company. The language employed in describing the parties is: \u201c William B. Whitehead, for and on behalf of the Albe-marle Swamp Land Company of the one part, and Burwell Reddick and Willis S. Reddick on the other part, do enter into the following agreement, * * * and in conclusion \u2014In witness whereof William B. Whitehead, for and on behalf of the party of the first part, being the Albermarle Swamp Land Company, &c.,\u201d thus pointing out the principal to be bound, and such was the construction of the contract.\nIn Oliver v. Dix, 1 Dev. & Bat. Eq., 158, the bond was under seal and signed, \u201c Thomas Dix, acting for James Dix,\u201d and Ruffin, C. J., declares that \u201c it is unquestionably the bond of Thomas and not of James. The former seals it and he speaks in it throughout, and the latter not at all.\u201d The same eminent judge, referring to a deed similarly executed in Redmond v. Coffin, 2 Dev. Eq., 437, lays down the rule in determining the liability of the party : \u201c It is not material in what form the deed be signed, whether A. B. by C. D., or C. D. for A. B., provided it appear in the deed and by the execution that it is the deed of the principal. But what must appear, and the cases cited put that beyond doubt \u201d \u2014 citing many cases.\nThis review leads to the conclusion that the bond now in suit imposes a personal obligation on the defendant, and not on the company nor on its president, neither of whom is named in the body of the instrument, to pay the money specified and due under it. There is therefore error in the ruling of the court and the judgment of nonsuit must be set aside and a new trial awarded. This will be certified.\nError. Venire de nova.", "type": "majority", "author": "Smith, O. J." } ], "attorneys": [ "Messrs. Gray & Stamps, for plaintiff:", "Messrs. Reade, Busbee & Busbee, for defendant:" ], "corrections": "", "head_matter": "A. S. BRYSON v. H. S. LUCAS.\nAgent and Principal \u2014 Bond, how executed to relieve agent of personal liability.\n\"Where one act as agent of another in the execution of an instrument under seal and does not mean to bind himself personally, he must exe-ente it in the name of his principal and state the name of the principal, only, in the body of the instrument; Therefore it was held that a bond in which \u201c I promise to pay to the order, &c., witness my hand and seal, signed by H. S. L. (seal) for 0., president of a company,\u201d imposed a personal liability upon L.\n(Delins v. Cawthorne, 2 Dev., 90 ; Potts v. Lagarns, 2 C. L. Hep., 83 ; Pronebarger v. Henry, 6 Jones, 54S; Fisher v. Pender, 7 Jones, 483; Bankv. Wright, 3 Jones, 376 ; McCall v. Clayton, Bush., 422 ; Whitehead v. Reddick, 12 Ired., 96 ; Oliver v. Dix, 1 Dev. & Bat. Eg,, 158; Redmond v. Coffin, 2 Dev. Eg., 437, cited and approved.)\nCivil ActioN tried at Spring Term, 1880, of Macon Superior Court, before Schenck, J.\nThis action is brought against the defendant upon the following written instrument executed by him : On or before the first day of January, 1879,1 promise to pay to the order of Albert S. Bryson one thousand dollars with interest from date, being part payment of a certain tract of land, for which bond has been given, bearing even date with this note. Witness my hand and seal this 2nd day of July, 1877. (Signed by H. S. Lucas, [seal] For Charles Cal-lender, President of the Chester Mica and Porcelain Co.)\nA similar note was given at the same time, falling due a year earlier, which was extinguished by the appropriation of partial payments sufficient for that purpose.\nAs a contemporary act and part of the same transaction, the plaintiff entered into the following covenant:\nFor and in consideration of one dollar paid to me, and also in consideration of the sum of four thousand dollars to be paid as follows, to wit: $500 by five days sight draft; $500 in ninety days from date; $1,000 1st January, 1878 ; and $1,000 1st January, 1879 ; I, Albert S. Bryson, will sell, assign, transfer and make over to Charles Callender, president of the Chester Mica and Porcelain Company, of New York, an undivided three-fourth interest in all that property, situate, lying and being in Macon county, state of North Carolina, on the waters of Nantahala river, containing six hundred and eighty acres, more or loss, deeded to me by the State of North Carolina, in two separate grants, bearing date 4th December, 1876; and I further agree, upon the payment to me of $500, specified, to execute to the said Charles Callender, president of the Chester Mica and Porcelain company, a bond for title to the above specified land, fully and freely, to be executed. The said title to the aforesaid land to be executed and delivered upon the fulfilment of the conditions of the bond. As witness my hand and seal this 29th day of June, 1877. Signed by Albert S. Bryson. [Seal.]\nThe plaintiff avers his readiness and ability to make title according to the agreement on payment of the residue of the purchase money.\nOn the trial before the jury the court expressed the opinion that the action was misconceived and would not lie against the defendant, in submission to which the plaintiff suffered a nonsuit and appealed.\nMessrs. Gray & Stamps, for plaintiff:\nThe bond sued on is not the deed of the alleged principal; the instrument must purport on its face to be the contract of the principal and his name inserted in it and signed to it, and not merely the name of the agent. Story on Agency, \u00a7 147, et seq.; Delins v. Cauihorn, 2 Dev., 90. The seal affixed must be that of the principal and not that of the agent merely, 4 Hill, 351, and the cases on the same subject reviewed in the opinion of this court. By the intimation of opinion by the judge below that the action would not lie against the defendant, the plaintiff was deprived of the opportunity of showing that the credit was given to defendant alone, and not to a foreign corporation, and that defendant signed,sealed and delivered the instrument as Ms bond and deed. The plaintiff is therefore entitled to a new trial.\nMessrs. Reade, Busbee & Busbee, for defendant:\nThe notes and the agreement to make title are in pari materia, and are to be taken together. It is manifest that the contract was between the plaintiff and Charles Callender, president, &c. Whether this is so or not, must be determined by an inspection of the bond and the agreement. See opinion in Delins v. Cawthorn, 2 Dev., 90. The defendant relied on the cases of Potts v. Lazarus, 2 C. L. Rep., 83; Whitehead v. Red-dick, 12 Ired., 96; McCall v. Clayton, Bush., 422; Osborne v. High Shoal's Co., 5 Jones, 177, and cases from other states bearing on the same question!" }, "file_name": "0680-01", "first_page_order": 696, "last_page_order": 704 }