§ 222. We now come to the form and execution of an agent's power. And, first, we shall consider the proper form in which an agent should execute a contract in behalf of his principal, so as to avoid all personal responsibility thereupon. The general rule applicable to this subject is, that the principal will neither be personally bound by a specialty signed by his agent, nor capable of suing thereupon, unless it appear on its face to be his deed, and unless it be made in his name.1 The reason of this rule is, that the instrument would be utterly without legal effect, unless it were construed to be the deed of the agent; for parol evidence is inadmissible to contradict the manifest meaning of the terms actually used. Every instrument under seal, therefore, although it be executed by the agent, within the scope of his authority, and in behalf of his principal, will be considered as the deed of the agent. And even if an agent should commence a deed by a description of his agency, thus, " I (A. B.), as agent of C. D., do hereby grant, sell," etc, or should sign and seal it " A. B. for C. D.," it would be considered as his own deed, and not as the deed of his principal.2 But if a sealed instrument purport to be the deed of the principal, the agent is not personally bound, unless it contain apt words to bind him personally.3 The power of attorney, given by a corporation, to execute a deed, must be by vote or under the seal of the corporation, and not under that of the attorney.1 So, also, if a deed be made to a person through his agent, it should be made to the principal by name.2 Yet if the name of the principal be inserted in the body of a specialty as grantor, and also be subscribed by the agent in connection with his own name, it will be sufficient. But it would not be an invalid execution of a deed by an agent, to sign merely his principal's name, without adding any words indicating an agency.3 The proper mode of subscribing an instrument, as agent, is to sign the name of the principal first (A. B.), and then to add, "by his attorney," or "by his agent" (C. D.).4 But the mere order in which the names are written is not material, the execution being otherwise properly made.5 Unless the deed purport on its face to be the deed of the principal, it will be considered as the deed of the agent, if his name be first signed; upon the ground that whatever follows the name first signed is mere description or identification of the person bearing it, and not intended as a limitation of his liability.
1 Story on Agency, § 147, 161, and cases cited; Com. Dig. Attorney, C. 14; 2 Kent, Comm. lect. 41, p. 629; Combes's Case, 9 Co. 77 a; 1 Roll. Abr. Authority, p. 330,1. 37; United States v. Parmele, 1 Paine, C. C. 252; Clark's Executors v. Wilson, 3 Wash. C. C. 560.
2 Frontin v. Small, 2 Ld. Raym. 1418; 8. c. 2 Str. 705; Wilks V. Back, 2 East, 142; Fowler v. Shearer, 7 Mass. 14; Elwell v. Shaw, 16 Mass. 42; 6. c. 1 Greenl. 339; Copeland v. Mercantile Ins. Co., 6 Pick. 198; Lutz v. Linthicum, 8 Peters, 165; Bacon v. Dubarry, 1 Ld. Raym. 246; Paley on Agency, by Lloyd, 181; Appleton v. Binks, 5 East, 148; Cayhill v. Fitzgerald, 1 Wils. 28, 58; Brinley v. Mann, 2 Cush. 337; Anon., Moore, 70.
3 Abbey v. Chase, 6 Cush. 57; Stetson v. Patten, 2 Greenl. 358; Delius v. Cawthorn, 2 Dev. 90; Jefts v. York, 4 Cush. 371; s. c. 10 Cush. 392. And eee Moor v. Wilson, 6 Foster, 332; Haven v. Adams, 4 Allen, 80.
§ 223. This rule, however, only applies to instruments under seal, and does not extend to instruments not under seal.6 In all cases of parol contracts, especially if they be maritime or commercial contracts, which are generally carelessly and loosely drawn, the intention of the parties constitutes the rule of interpretation, whenever it can be deduced from the consideration of the whole instrument.7 Thus, where a note began, " I promise
1 Bank of Columbia v. Patterson's Adm., 7 Cranch, 299-305; Damon v. Granby, 2 Pick. 345; Tippets v. Walker, 4 Mass. 595. A deputy may, however, do an act, and sign his whole name, and yet bind his principal; for the deputy in law has the whole power of the principal, which the agent has not. Parker v. Kett, 1 Salk. 95; Craig v. Radford, 3 Wheat. 594.
2 1 Stair, Inst, by Brodie, B. 1, tit. 12, § 16; Story on Agency, § 151.
3 Forsyth v. Day, 41 Me. 382; Hunter v. Giddings, 97 Mass. 41. The dictum of Fletcher, J., in Wood v. Goodridge, 6 Cush. 120, does not seem to have been approved in the same court. And see Jones v. Phipps, Law R. 3 Q. B. 567. 4 Wilks v. Back, 2 East, 142.
5 Mussey v. Scott, 7 Cush. 215.
6 Bac. Abr. Leases for Years, I. 10; Com. Dig. Attorney, C. 14; Combes's Case, 9 Co. 77.
7 Story on Agency, § 154, and cases cited; N. E. Mar. Ins. Co. v. De ise," and was signed, "Pro C. D., A. B.," it was held to bind the principal.1 And a bond so signed was also held not to be personally binding on the agent.2 So, also, where A., being a duly authorized agent, wrote on a note, "By authority from B., I hereby guarantee the payment of this note," and signed his own name; it was held to be the guaranty of the principal and not of the agent.3 And, where A., as agent, signed a receipt, "for the owners," he was held not to be personally liable.4 So, also, where there is only a verbal contract, the agent will not be personally liable, if he inform the party, with whom he deals, of his agency. Thus, where the defendant employed the plaintiff, who was a paper-hanger, to do a job at Tippells house, and informed him that it was on Tippell's account; it was held that the defendant was not chargeable with the price of the work.5
§ 224. There is, however, one modification to this doctrine, which obtains whenever it does not clearly appear, from the terms or the nature of the contract, that the agent intended to assume no personal responsibility; and, in such case, he will be personally liable, whether the instrument be sealed or not.