Opinion
(August Term, 1848.)
1. Where a plaintiff declares upon a specific covenant under seal to do a work in a certain time, he cannot recover for the price stipulated in that contract unless he shows he has performed his work within the time contracted for.
2. Where it appears from the contract that it was made by public commissioners in behalf of the public, whether they were commissioners for the county or for the State, such commissioners are not personally bound by their contract.
APPEAL from the Superior Court of Law of CLEVELAND, at Fall Term, 1847, Settle, J., presiding.
Avery, Guion and Alexander for plaintiff.
Osborne and Wilson for defendants.
This is an action of debt upon a covenant. The plaintiff undertook and built a courthouse in the town of Charlotte for the county of Mecklenburg, and bring this action to recover the price agreed to be paid. The defendants were commissioners appointed by the County Court to make the contract, and the action is against them, upon the ground that by the deed executed by them they are personally bound for the money. The covenant is as follows:
CHARLOTTE, 30 July, 1842.
Know all men by these presents, that we, Stephen Fox, etc., commissioners for and on behalf of the county of Mecklenburg, of the one part, and John Dameron of the other part, witnesseth, that whereas the said John Dameron hath agreed to build a courthouse for the county of Mecklenburg, in the town of Charlotte, according to the specifications marked A, etc., the said Stephen Fox, etc., for and in behalf of the county of Mecklenburg, on their part do agree that upon the execution of said contract fully, and according to the terms thereof, etc., by 1 January, 1844, then, and in that case, to pay to the said John Dameron, etc. It is further understood and agreed that (422) the commissioners aforesaid may make payment, etc.
It is admitted that the building was not erected within the time specified for its completion, nor according to the specifications; but that the departures from it were made with the knowledge and consent and by the directions of the defendants, and that the building was, after the summer of 1844, used and occupied by the court in the transaction of public business. It was further admitted that the lot upon which the building was to be erected was not purchased by the defendants until 27 April, 1843.
Upon intimation from the court that the plaintiff could not maintain his action, he submitted to a nonsuit and appealed.
The action is in debt, and the plaintiff claims the money to be paid for building the courthouse. Two objections are urged against his right of recovery: one that the defendants are not personally liable, and the other that the plaintiff did not perform his contract by building the house within the time and according to the terms specified. Both objections are fatal.
The plaintiff sues upon the sealed instrument, and in his declaration must set forth the terms of it, or its legal effect, and in general practice it is usual to set forth the words of the contract. 1 Chitty Plead., 299, 302. In the contract in this case the plaintiff was bound to finish the courthouse by 1 January, 1844, at which time, also, the money was to be paid, if the work was done. The defendants agree that upon the execution of said contract, fully and according to the terms thereof, the specifications, etc., by 1 January, 1844, then and in that case to pay, etc. It is admitted that the courthouse was not erected according to the specifications nor within the time prescribed. There was, then, a fatal variance between the allegation (423) and the proof. The latter did not support the former. The plaintiff, however, says that the variations were all made by the directions of the defendant, and that the house was not finished within the time because the defendants did not furnish the ground until 27 April, 1843, and that the courthouse was received and used by the court. There is no doubt that the plaintiff is entitled to receive the value of his work and labor done, and materials found by him; but not in this action, which is brought on the covenant to pay. He cannot declare on one contract and recover on a different one. The defendants expressly agree that the money shall be paid upon the execution of the work at the time specified and according to the specifications. The covenant to pay the money is dependent upon the execution of the work according to the agreement. The plaintiff, then, cannot recover in this action without an averment of performance. Clayton v. Blake, 26 N.C. 497; Glassbrook v. Woodrow, 8 Term, 366. The other objection is equally fatal to the plaintiff's recovery. The defendants in entering into this contract were acting as public agents — agents or commissioners of the county of Mecklenburg. They are, therefore, not personally bound, not because public agents cannot make themselves, by their contracts for their principals, personally responsible, but because in this instance they have not. The doctrine on this subject was very elaborately and ably argued before the Supreme Court of the United States in the case of Hodgson v. Dexter, 1 Cranch, 345. The defendant was, at the time of making the contract upon which the action was brought, Secretary of War, and as such leased from the plaintiff certain buildings in the city of Washington for the use of the public, and covenanted, for his and his successors, "to keep in good and sufficient repair," etc. This covenant was signed and sealed "Samuel Dexter," without any addition whatever. The premises were burnt down during the lease, and the action was (424) to recover damages under the covenant to repair. Chief Justice Marshall, in delivering the opinion of the Court, says: "It is too clear to be controverted that when a public agent acts in the line of his duty, and by legal authority, his contracts made on account of the Government are public and not personal," and the reasons given for the judgment in that case apply with entire propriety to this. The plaintiff's counsel, there as here, admitted the general doctrine, but denied its application to that case, alleging that the defendant had made himself personally liable. In answering that argument the Court admitted the terms of the instrument. In this case, as in that, it is admitted the building was for the use of the public and that the defendants had a right to make it, and in every part of the deed they show for whose use and under whose authority they were acting. In the binding part of the covenant the language is certainly explicit: "and the said Stephen Fox, etc., acting for and in behalf of the county of Mecklenburg, etc." In a subsequent part they say it is further understood and agreed that the commissioners, etc. Whenever, then, in the course of the instrument they are obliged to mention their own names they state themselves to be commissioners and acting for the county of Mecklenburg, and where they execute it they execute it as commissioners. There is no allegation nor is there any reason to believe that the plaintiff preferred the private responsibility of the defendants to that of the county. It is further alleged by the plaintiff's counsel why the case of Dexter does not apply to this, that it was the case of a known agent of the Government, and the defendants here were the agents, not of the Government, but of the county. This objection is answered in Hite v. Goodman, 21 N.C. 364. In that case the defendant, with other magistrates of Gates County, had offered, in behalf of the county, a large reward for (425) the apprehension of certain runaway slaves. The plaintiffs had captured some of the slaves and sued in equity in consequence of the obstacle to a recovery at law stated in the bill. His Honor, Judge Gaston, in giving the opinion of the Court, recognizes no distinction between an agent for the Government and any other public agents, but considering the defendants as public agents, extends to them the protection of law as such. He says: "We consider it settled law that an action will not lie against a public agent for any contract entered into by him in his public character, unless he undertake, explicitly, to be personally responsible." Among the cases cited by him is that of Dexter. We consider this case decisive of the one before us. The defendants were the agents of the county of Mecklenburg in making the contract, so style themselves in the contract in every instance in which they refer to their action, and so seal and deliver the covenant.
We see no error in the opinion of the presiding judge.
PER CURIAM. Judgment affirmed.
Cited: Brown v. Hatton, 31 N.C. 327; Tucker v. Iredell, 35 N.C. 435; Dey v. Lee, 49 N.C. 240.
(426)