Jacob B. Clark vs. Timothy Foster, 8 Vt. 98

The opinion of the court was delivered by Pheups, J. It seems to be well settled, that a person assuming to act as the agent of another, without authority from his supposed principal, becomes personally liable. And it has been often held, that he may be treated as a principal party to the contract, and made responsible as such. There are cases however, in which from the nature of the transaction, this remedy would be unavailable to the party injured.

So in this case, if the defendent is treated as a principal in the contract, yet, the object of the contract being to create a security upon the real estate of Weeks, the supposed principal, no redress in this way could be had. The rule therefore would not aid the defective security ; for if Foster made the mortgage as principal, it would not bind the land of Weeks. The plaintiff has therefore resorted to his action on the case, . 1 . , counting upon the deceit. There is no doubt, that assuming to actas the agent of another, without authority for that purpose, is, generally speaking, fraudulent in itself.

If the party represents that he has authority, knowing that he has not, it is morally as well as legally fraudulent. In the eye of the law, the assuming to act is equivalent to such a representation, and if the party have no authority, and the other party contract with him supposing that he has such authority, the effect is fraudulent. And where the case does not admit of a remedy by enforcing the contract against the supposed agent, as in effect the principal, the parry is necessarily driven to his action for the deceit. The only serious question which can arise, is as to the burthen of proof.

But we are of opinion, that assuming to actas agent in such case \s prima facia fraudulent — that the plaintiff need show no more than such an assumption without competent authority, and that the onus proiandi lies on the defendant to rebut the presumption of fraud. It is true however, that fraud must be shown, in order to sustain this action. Where therefore the agent discloses his authority, and the parties are misled by a mutual misapprehension of the law as to the extent of that agency, an action for deceit most clearly would not lie.

It is on this principal, that persons acting as public agents are not personally bound if they transcend their authority. And so in this case, had the power of attorney been exhibited to the plaintiff, I for one, should have held it a mistake in point of law as to the effect of that instrument. But the case does not disclose that the plaintiff was made acquainted with the tenor of that instrument, or had the means of judging of the extent of the authority conferred by it.

The case falls within the general rule above laid down, and the presumption of law is, that the plaintiff relied upon the representations of the defendant. The recording the power was no legal notice to the plaintiff of its contents. It became, when recorded, in connexion with the deed executed under it, evidence of title, so far as it went, of which a subsequent purchaser or attaching creditor would be presumed to have notice.

But as mere evidence of a personal agency, as between these parties, there was no necessity forrecording.it, until something had been done under it, and the plaintiff cannot be supposed to look to the town record for evidence of its purport. As to tiie evidence of Weeks, which was offered and rejected, it is impossible to conceive, how it can be .brought to bear on this controversy. His testimony merely went to show that he made n0 contract t0 guarantee the note.

The papers in the case show conclusively that the defendant did subsequently make such a contract, professing to have authority for that purpose, and the complaint is, that his profession was false. The testimony of Weeks therefore if received would not vary the case.. Judgment affirmed.