Rogers v. March , 33 Me. 106 ( 1851 )

Tenney, J.

— The evidence in the case shows fully, that “ the Fredericton Boom Company” received the benefit of the plaintiff’s services so far as they were rendered. This was a company duly incorporated, and organized in the province of New Brunswick. The performance of the services for the company, aside from any express agreement made by the plaintiff', would imply a promise in it, to make compensation therefor.

But the plaintiff relies upon a contract in writing dated at Bangor in this State on January 15, 1846 ; and contends that it is the agreement of the defendant to make payment for those services, and not that of the company ; and that by the request of the defendant therein contained, he performed the services, or was ready to do so. It is further contended in behalf of the plaintiff, that if the agreement should be construed to be that of the company, the defendant is still liable, he being the agent of the company, resident in the State where the plaintiff also resides, and where the contract was made.

By R. S. chap. 91, sect. 14, it is provided, that all deeds and contracts, executed by an authorized agent for an individual or corporation, either in the name of the principal by such agent, or in the name of such agent, for the principal, shall be considered the deed or contract of such principal.” This is substantially a reenactment of the statute, chap. 220, passed in the year 1823. Both are in affirmance of the common law, so far as it is. applicable in this respect to unsealed, written contracts. Story’s Agency, sections 154, 261, 263. The rule is laid down by Judge Story in these words, “ If it can upon the whole instrument be collected, that the object and intent of it are to bind the principal, and not merely the agent, courts of justice will adopt that construction of it, however informally it may be expressed.” The case of Mann v. Chandler, 9 Mass. 335, was a suit upon notes of hand, in the words, “ I, the subscriber, treasurer of the Dorchester Turnpike Corporation, for value received, promise Seth Mann, to pay him or bearer-,” &c. and they were signed “ Gardner L. Chandler, treasurer of Dorchester Turnpike Corporation.” The Court say in their opinion, “ Here it cannot be doubted, the corporation is itself liable. The consideration moved wholly from them. It is very apparent, that the plaintiff did not at the time of receiving the notes, look to the defendant’s personal security. The whole transaction was in behalf of the corporation. The property is liable and the defendant is not.” A note in the words, “ I promise,” <fcc. and signed by one person, pro another, named, was held to be the note of the latter. Long v. Colburn, 11 Mass. 97; Emerson v. Prov. Hat Man. Co. 12 Mass. 237; Ballou v. Talbot, 16 Mass. 461; N. E. Ins. Co. v. DeWolf, 8 Pick. 56.

Decisions upon this question have not been entirely uniform. It has been held, that the party signing the instrument, and adding to his name the agency, which he had, was personally liable, and that the addition was only descriptio personae. Some of these cases do not seem very clearly distinguishable from those before cited, where a different construction was adopted. In some of them was involved the question, whether the person who signed, with the addition of agent, had any authority from the principal to contract in his behalf; and in the dis-mission of that question, there has been an indistinctness in reference to the other. Judge Story, in a note to sec. 154, in his treatise on Agency, says, “It is not easy to reconcile all the cases in the books upon this subject ; though I cannot but think, that the true principle to be deduced from them is that stated in the text.”

The case before us finds,' that the defendant was the agent of “ The Fredericton Boom Company,” at the time, when the contract was executed, and that he had authority to contract with the plaintiff for the company and to make them liable. In looking at the agreement, it has the appearance of being drawn in haste ; but it is manifest, when taken together, that it was the intention of the defendant to bind the company and not himself individually. In the beginning of the contract, the language is, “ I will give,” &c. but that must be considered in connection with what follows, and with the signature, where his agency is added. In the latter part of the contract, the language is inconsistent with the hypothesis, that the company was not designed to be made responsible. It is, we will allow seven dollars per day, &c. for any time, that we shall detain you at the boom; and in case we should require you to work on Sundays, an extra allowance was to be made. And no discount was to be made, if we get through the work before the time, for which the plaintiff was engaged.

In the account annexed, are certain charges for services not falling within the terms of the written contract, and there is no evidence of any promise of the defendant in reference thereto. But there is in the case a bill of the plaintiff rendered under a former agency, made against the company, and receipted. A receipt of the plaintiff also, dated May 14, 1846, in which he acknowledges the payment of £28,10, by the defendant as agent of the company. These show, that for certain services performed, and a part charged in this suit, he looked to the company for payment.

“ No rule of law is better ascertained, or stands upon a stronger foundation than this; that when an agent names his principal, the principal is responsible, not the agent.” Hartop ex parte, 12 Vesey, 349 ; Story’s Agency, sect. 261 and 263. To this rule there is an exception, upon the ground of general convenience, and the usage of trade, that agents and factors acting for merchants resident in a foreign country, are held personally liable upon all contracts, made by them for their employers, and this without any distinction, whether they describe themselves in the contract as agents or not. In such cases it is presumed the credit is given to the agent or factors. And this exception becomes a general rule, within the scope of its application. Story’s Agency, sect. 268. A reason given for this rule is, that there is no other known responsible principal. But Judge Story remarks, that it “is founded on a broader ground, the presumption, that the party dealing with the agent intends to trust one, who is known to him, and resides in the same country, and subject to the same law as himself, rather than one, who if known, cannot from his residence in a foreign country, be made amenable to those laws, and whose liability may be affected by local institutions, and local exemptions, which may put at hazard both his rights and his remedies.” Ibid. 290. “This doctrine is in conformity to the general usage of trade; and it was in all probability originally derived from it, as affording a just exposition of the intentions of all parties, and as being founded in public policy and convenience and in the safety, if not the necessities of commerce.” — Ibid. 400.

But we have been directed to no authority, where the rule ' has been held so broad as to embrace the case of personal services performed in a foreign country, for one residing there, although under a contract made in the country, where the one, who engaged to perform the services, resided. The reason of the rule will not extend to such a case. It is well settled, that where the acts stipulated in a contract are to be done, not in the country where the contract is made, but in another country, the laws of the latter are to govern in the performance. Story’s Confl. Laws, sect. 280. And where the rule, to which we have referred, in mercantile transactions, is founded on the principle, that one would be unwilling to look to a resident of a foreign country, perhaps unknown to him, and expose himself to the inconvenience, the risk, the expense and uncertainties attending the enforcement of a contract, in that country, it cannot apply to a contract, whereby a party agrees to go to a foreign country, to render services for a resident therein, to be under his direction, knowing that in the performance, he is to be governed by the laws of that country. Where too, he is supposed to be entitled to compensation for his labor, immediately on the performance of the contract therefor, it is not to be presumed that he would voluntarily postpone to a distant time the receipt of payment.

But it is insisted, that in order to discharge himself, the defendant must have given to the plaintiff a right of action against the principal; and the written agreement being the only valid proof of the contract, it fails of being sufficient against the company, because it is not stamped, according to the supposed law of New Brunswick.

Courts cannot take official notice of the local laws of foreign countries, without proof of their existence. If important in the trial of actions, they must be shown by evidence like other facts. The case does not find, that the laws of New Brunswick are such as has been stated in argument.

But if it were shown by competent evidence, that such is the law of the country, where the contract in question was to be performed, it is believed that it would have no effect in the decision of this case. This contract was made in this State, and every person is supposed to submit himself to the laws of the place where he makes the contract, and silently assent to its action upon his contract. The law of the place of the contract is to govern. “ Locus contractus regit actionem. ” Story’s Confi. Laws, sections 261, 263, 289. When a contract is made in one country, for the payment of money in another, and by the laws of the latter a stamp is required, and not by those of the former, it has been held, that it is not governed by the lex solutionis, upon the ground, that an instrument as to its form and solemnities, is to be governed by the lex loci contractus, and a stamp is not required by the principle. Ibid. 318. The requirement of stamps in other countries is a part of the revenue laws of those countries. In Holman v. Johnson, Cowper, 343, Lord Mansfield, C. J. says, “ no country takes notice of the revenue laws of another.” James v. Catherwood, 3 Dowl. & Ry. 190. Plaintiff nonsuit.