Moor & a. v. Wilson, 26 N.H. 332

Woods, J. There is no ground on which it can be maintained that the defendant had authority to bind the society to the payment of the notes in question. His authority to borrow money, and, perhaps, as incident thereto, to give a note in behalf of and binding the society for its payment, does not reach the case. The consideration of the notes in question was lumber sold and delivered to the society, and no authority, dire.ct or by implication, appears to have been given him to bind the society by a promissory note, except in the particular case of borrowing money, if at all.

Neither was the authority conferred upon the trustees, on the 9th of May, 1842, “ to give their notes in behalf of the society,” executed in a manner to bind the society. The notes were made and executed by the defendant alone; he himself affixed the names of the trustees to them. It is a well settled rule of law, that if authority to do

an act be delegated to one, he must, in general, do that act himself, and cannot delegate his authority to another. Andover v. Grafton, 7 N. H. Rep. 304; Despatch Line of Packets V. Bellamy Man. Co. 12 N. H. Rep. 228; Gillis v. Bailey, 1 Foster’s Rep. 149; 2 Kent’s Com. (4th ed.) 633. In such cases, the authority is strictly personal, unless from the express language used, or from the fair presumptions growing out of the particular transaction or the usage of trade, a broader power was intended to be conferred on the agent.

Story on Agency 14-16. • Here was nothing to show an intention on the part of the society, in giving to the trustees the power of binding it by a note, to authorize it to confer that power upon another. Another question is whether the note so signed by the defendant, is binding upon himself personally. It is said, in the case of Underhill v. Gileson, 2 N. H. Rep. 356, that where an agent contracts, in writing, without authority, he is liable on the writing itself. In that case, there were no words used proper to bind the principal, but only the agent himself.

So where an agent, in making a written contract, fails to do it in such a manner as to bind his principal, but uses apt words to bind himself, the words indicating his character and capacity of agent will be regarded as descriptive, and he will be personally liable on the contract. Savage v. Rix, 9 N. H. Rep. 263.

In that case, the defendants promised “ in their official capacity,” and signed their several names, adding to them the words “ Whitefield road committee.” It is a well settled rule of law, that where one not having authority to bind another, assumes to do so, he binds himself, if apt words are. used for that purpose, or if the language used in the contract does not preclude the idea of persona] obligation on the part of the person assuming to be the agent.

If a contract, entered into by one assuming to act as the agent of another, but not having the requisite authority, when stripped of what the pretended agent had no right to put there, still contains apt words to charge the agent with a personal obligation, he is bound to the performance of the contract. Pettingil v. M Gregor, 12 N. H. Rep. 191. In Woodes v. Dennett, 9 N. H. Rep. 58, the language of the court is thus: “ The only remaining question is whether ■the action can be supported against the defendant personally.

It may be supposed that he intended to act as a selectman, but he failed to bind the town, because he could •not alone lawfully act as agent. The official character which he assumed must, therefore, be laid out of the case ; and then the inquiry arises whether he made any agreement upon which an action of assumpsit can be sustained against himself. That he made an agreement is not disputed. If that agreement purported to contain the promise of the town of Barnstead to pay, there seems to be no good ground upon which to charge the supplies to the defendant, and rriaintain an action against him on that account.

If such were the facts, it seems an action on the case might be sustained against him for assuming to act without authority. But this is not the necessary course where the instrument or contract, rejecting what the person assuming to act as agent was not authorized to put to it, contains his personal obligation. If the defendant used apt words by which to charge himself on a personal contract to pay, this action may well be maintained. Having no authority in such a case, he must be understood to have contracted on his individual account.” This ease, however, does not fall within the principle of the cases cited.

Here were no apt words to bind the defendant. It is, in express terms, the undertaking of “ the Second Methodist E. Society in Manchester, N. H.” Such is the language of the note itself. The language used is, “ the Second Methodist E. Society promise to pay,” and it shows that the defendant did not intend to bind himself.' There are no apt words to create a personal contract or promise on his part. The verdict must, therefore, be set aside, and as the case provides, there must be, Judgment for the defendant.