"In the absence of any direct authority, we think that a party who executes an instrument in the name of another, whose name he puts to the instrument, and adds his own name only as agent for that other, cannot be treated as a party to that instrument, and be sued upon it, unless it be shown that he was the real principal." See also Lewis v. Nicholson, 21 Law J. (n. s.) Q. B. 311; Downman v. Jones, 9 Jurist, 454; s. c. 4 Q. B. 235, n.; Smout v. Ilbery, 10 M. & W. 1. The same rule obtains in Maine, Stetson v. Patten, 2 Greenl. 358; and in Massachusetts, Long v. Colburn, 11 Mass. 97; Ballou v. Talbot, 16 Mass. 461; Jefts v. York, 4 Cush. 371; s. c. 10 Cush. 395; and in Pennsylvania, Hopkins v. Mehaffy, 11 S. & R. 126. But in New York, the agent has been held personally liable on the contract in such cases. Dusenbury v. Ellis, 3 Johns. Cas. 70; White v. Skinner, 13 Johns. 307; Meech v. Smith, 7 Wend. 315; Randall v. Van Vechten, 19 Johns. 60; Palmer v. Stephens, 1 Denio, 471; and in New Hampshire the rule is similar. Woodes v. Dennett, 9 N. H. 55; Savage v. Rix, 9 N. H. 263.
1 Jenkins v. Hutchinson, 13 Q. B. 744, and cases cited above. In Smout v. Ilbery, 10 M. & W. 1, Baron Alderson says: " On examination of the authorities, we are satisfied that all the cases in which the agent has been held personally responsible will be found to arrange themselves under one or other of these three classes. In all of them it will be found that he has either been guilty of some fraud, has made some statement which he knew to be false, or has stated to be true what he did not know to be true; omitting, at the same time, to give such information to the other contracting party as would enable him, equally with himself, to judge as to the authority under which he proposed to act. Of the first, it is not necessary to cite any instance. Polhill v. Walter is an instance of the second; and the cases where the agent never had any authority to contract at all, but believed where there are apt words therein to charge him as principal.1
§ 250. But if credit be given solely to the principal, - as if the agent declare his agency, and expressly refuse to incur personal responsibility at the time,- the irresponsibility of" the principal will not create a liability on the part of the agent, unless the agent have been guilty of some misrepresentation or fraud.2 So, also, public officers, who are known to contract in their official character, will not be responsible on contracts that he had, as when he acted on a forged warrant of attorney, which he thought to be genuine, and the like, are instances of the third class. To these may be added those cited by Mr. Justice Story, in his book on Agency, p. 226, note 3 (§ 264, n. 2). The present case seems to us to be distinguishable from all these authorities. Here the agent had, in fact, full authority originally to contract, and did contract in the name of the principal. There is no ground for saying, that in representing her authority as continuing, she did any wrong whatever. There was no mala fides on her part, no want of due diligence in acquiring knowledge of the revocation; no omission to state any fact within her knowledge relating to it, and the revocation itself was by the act of God. The continuance of the life of the principal was, under these circumstances, a fact equally within the knowledge of both contracting parties. If, then, the true principle derivable from the cases is, that there must be some wrong or omission of right on the part of the agent, in order to make him personally liable on a contract made in the name of his principal, it will follow, that the agent is not responsible in such a case as the present. And to this conclusion we have come. We were, in the course of the argument, pressed with the difficulty, that, if the defendant be not personally liable, there is no one liable on this contract at all; for Blades v. Free has decided, that in such a case the executors of the husband are not liable. This may be so; but we do not think, that, if it be so, it affords to us a sufficient ground for holding the defendant liable. In the ordinary case of a wife, who makes a contract in her husband's lifetime, for which the husband is not liable, the same consequence follows. In that case, as here, no one is liable upon the contract so made." See Blades v. Free, 9 B. & C. 167.
1 See Woodes v. Dennett, 9 N. H. 55; Savage v. Rix, 9 N. H. 263, in which it is held that if a person having no authority to act as agent, undertake so to act in making the contract, he will be personally liable, if the contract, after rejecting therefrom what he was not authorized to put in it, contain apt words to charge himself as principal. But see the cases cited supra.
2 Smout v. IIery, 10 M. & W. 10; Jones v. Downman, 4 Q. B. 239; Lewis v. Nicholson, 21 Law J. (n. s.) Q. B. 311; 12 Eng. Law & Eq. 430; Story on Agency, § 265.
made for the government; because exclusive credit is considered to be given to the government, and not to its agents.1 Thus, the governor of a fort, or colony, or the captain of a military company, is not liable for stores or provisions supplied to his order for the use of the government, or for the support of troops.2 But a committee acting for a town do not contract in a public capacity, so as to exclude personal liability.3
§ 251. If a person make a contract in his own name, or assume a personal liability by the terms of his contract, he will be personally liable, although the fact of his agency be known;4 as if he give a note, in his own name, for goods purchased by him for his principal, and acknowledged to be so purchased, by the terms of the note itself;5 or if he procure a policy of insurance to be underwritten in his name; 6 or accept a bill in his own name, drawn upon him on account of his principal:7 or, especially where the instrument is under seal, and is ostensibly the deed of the agent, this rule will apply.8