William E. Sheffield against James Watson

William E. Sheffield against James Watson. NEW-YORK, May, 1805. A government agent, though known to be such, contracting for things for the use of government, will be personally liable on his contract, unless he make it in his official character, on account of government, and the party contracted with, appear to have looked to government alone for compensation. ASSUMPSIT for work, labour, and materials in making two •drafts and models for the frigate Adams, at the defendant’s request. There being no dispute about the facts, á verdict was taken by consent, subject to the opinion of the court, on the following case. The defendant, who is publickly known as the navy agent for the general government) in consequence óf orders to have the Adams built, wrote to the plaintiff a letter, bn the subject of present suit, couched in these words. July 8, 1798. “ SIR, “ I pray you to make a draft of the ship as soon as possibles ” ^01' which you Shall have the usual allowance from iS Your humble servant, “ James Watson,. “ To Mr. Sheffield.” The plaintiff, in pursuance of this, made a draft and model on a sca¡e 0f jqs feet; but directions having been riven to the defendant to construct the frigate on larger dimensions, he ordered ¿mother draft and model, which were accordingly furnished by the ° 1 1 t defendant, who shortly after, in conjunction with one John Jackson, entered into a written contract with the defendant for building the ship. Ih this agreement, Watson styled himself “ agent for, “ and in behalf of the United States.” Ih ship-building, modeling and drafting are distinct charges^ and on the present occasion, constituted nd part of the demand against government, they employing a regular draftsman of their own, whose business it is to furnish drafts and models for government ships, though, from some particular circumstances, he had not done it for the Adams. Upon these facts it was submitted to the court to determine whether the plaintiff was entitled to recover for one or two drafts and models, or whether he was entitled to .recover at all? If for the two, the verdict to be entered for 300 dollars ; if for one only, for 150 dollars ; but if not at all, then to be entered for the defendant. Blake for the plaintiff. This case will turn on the intent of the parties_Whether Sheffield considered the defendant as acting in his individual capacity, or as agent for the United States. The intendment of law would naturally view him in the first of these lights, for whoever contracts for the labour of another, assumes a prima fade responsibility of payment. This alone would be sufficient to induce in the plaintiff a belief, that he was to look to the defendant for his money. He would perform the services required, under that impression, and with that intent. This’, therefore, is to be the rule of construction to ascertain who, by the plaintiff was contemplated as his pay-master. To shew this intent of the parties ought to govern, 1 Bow. on Cant. 243. The fact relied on to destroy this general responsibility, and establish the contract to have been entered into with another intent) is that the defendant was knowr? to be the agent qi the United States. Against this, the letter of the defendant speaks a plain language ; and for the very services the plaintiff rendered, government have an officer of their own and could not, therefore, be resorted to by us. Hofikins and Harison, contra. The question is, whether a known agent of the United States acting in a line palpably for the service of the public, shall be responsible in his individual character, on the contracts he may thus make for government. The contrary is firmly settled. 1 East. 135, 579. 1 D. & E. 172, 674.§ the plaintiff is to recover, the defendant mustióse the money. The agent of even an individual, if known to be acting for his principal, does not incur any liability. A fortiori the agent of government. No surprise is pretended ; the plaintiff contracted \vith his eyes open, and to make a goverment agent responsible, there must be clear unambiguous circumstances to shew he contracted in his private capacity. Caines in reply. That an agent may bind himself by contracts, made for his principal is admitted. In addition to the facts already relied on to evince that was the case in the present instance, the conduct of the parties themselves, when intending it to be otherwise, may be referred to. In contracting for building the frigate, Mr. Watson describes himself as agent, for and in behalf of the United States. When therefore he does not so engage, he must mean to personally undertake. There is a case in Strange where a cashier of a public company, was held answerable ip his private capacity, for a bill accepted by him in his own name though directed to him as cashier, and drawn upon the funds of the company. Words tantamount to those used in this letter have been ruled to .create an individual responsibility. In general Burgsyne’s case cited in Macbeath v. Haldiman, the expressions were, that the plaintiff “ should be paid at the same rate as “ the provost marshal under general Howe,” and they were held to work a personal liability. Whenever the rule contended for on the other side has been allowed to operate, the terms of the contract have shown that it was entered into with a reference to government. In Macbeath v. Haldiman, the plaintiff’s accounts were made out “ government debtor and the whole of the correspondence stated in the report, manifests the same idea. So in Umvir v. Woolsey, the charter-party was expressly “for and on ac- “ count of government.” AH the cases referred to, have the same, or some other similar ingredient, distinguishing them from, thepresent. Under as ystem so widely extended as ours, to turn over to the administration, every man who might furnish that which countlT requires, would be ruinous, and impede, if not totally obstruct the public service. Suppose the rations of an army delivered to a commissary, must the recourse be to government alone ? The defendant in giving directions for the models, eithe;* acted under the orders of government, or he did not. In the first case, he either has received, or will receive the amount of the present contest; if so, he suffers nothing by the recovery. Ik the second, he must have intended to, act for hjmself and is therefore liable on his contract. Myrtle v. Beaver. Rice v. Chute Macbeath. v. Haldiman. v. Thomas v. Bishop, 2 Stra. 955. [MAJORITY — Livingstoh, J.] Per curiam, delivered by Livingstoh, J. It is not enough the plaintiff knew the defendant to be navy agent, and that the frigate, whose model he was to make, was to be a public ship of war. Before we send him to government for redress, it should appear, as well that Watson contracted in his official character, and on account of the United States, as that Sheffield gave credit, and intended to look to the government alone for compensation. No one would do any thing for a public agent, were he compelled for every demand, however small, to send his account to the seat of government, qr to petition congress for relief. The expense and delay, would, in many cases, be greater than the sum due might be worth. Never before was it insisted, that every carpenter, ship-chandler, Ecc. who had supplied materials, or bestowed labor on a public vessel, had no recourse against the person employing him. The consequence would be, either an unwillingness to work for the public, or an. exorbitant price would be asked, as an indemnity for the inconvenience of applying to the legislature, or some distant office, for ⅞ settlement. It is more reasonable, that an agent who receives a salary, or a commission should be personally answerable to all who are employed in his department. He trusts government. His acceptance of the office is voluntary. He is compensated for his services ; and, so long as he acts within his instructions, he runs no risk of having any proper account disallowed. In ordinary cases he will not be alarmed at a responsibility, which, upon great occasions, such as provisioning an army or the like, may be avoided, by taking care so to model the contract, as to leave no doubt that the patty was willing, and intended to look, not to him, but to the public. Where this precaution is omitted, be ought to be liable for every thing done at his request, although his character be known, and that the services rendered, are on public account. Here, on the contrary, is something very like an express undertaking, on the part of Watson, to pay. For, what other construction can be put on the his letter, in which he declares that the plaintiff u shall have the usual allowance from his humble servant ?” His public character is not brought to view, nor is the plaintiff referred to, government for satisfaction. It must have been upon reasoning like this, that the lord Chancellor, assisted by two of the judges of the king’s°bench, proceeded, in the case of Horsley v. Bell. 1 Bro. Ch. Rep. 101. in notis. They considered the commissioners named in an act of parliament for carrying on a certain navigation, personally liable to the undertaker, although he .knew they were exercising a public trust, and they had signed the several orders in that capacity. It is not intended to shake any of the English authorities on this point. None are to be found in which the party was denied a remedy against his immediate employer, but on the principles here recognised. In Melchart & others v. Halsey & others, 3 Wils. 149, lord Mansfield, thought, from the circumstances disclosed (but what they were does not appear) that the forage and provisions furnished the British troops were <£ upon the public “ faith and credit of government,” and therefore nonsuited the plaintiff. So in Mackbeath v. Haldiman the plaintiff had made u Governmenldebtorfor sundries supplied by orderofthe lieutenant *< governor,” and on this circumstance the court laid great stress. The supreme court of the United States in Hodgson v. Dexter, 1 Cranch 345, regarded the contract as made “ with a view en~ “ tircly to government.” When this appears, it will be unjust to charge the officer, but as the contrary may fairly be inferred as the understanding and agreement between the parties, the plaintiff must have judgment for 300 dollars, anc| this is the unanimous opinion of the court. Uniwin v. Woolsey.