
    Seth Ballou versus Joseph Talbot, 2d.
    
    If A. subscribes a promissory note, and adds to his signature the words “agent for B.,” he is not liable as on his own promise. If he acted without authority from B., he is liable in a special action on the case. ■
    The declaration was “in a plea of the case, for that the said Talbot, at, &c., on, &c., by his note of that date, by him subscribed for value received, promised the plaintiff to pay him, or his order, 380 dollars on demand with interest,” &c.
    Trial on the general issue, in May last, before Jackson, J., at Taunton. The note produced was signed by the defendant, and, after his name, were added the words “ agent for David Perry.” The defendant objected that this evidence did not comport with the declaration. The plaintiff offered to prove, that the defendant was not authorized to make the note, as agent for Perry. The defendant contended that, if that was the fact, still the plaintiff could not recover in this action; and that he should have brought a special action on the case, setting forth that the defendañt undertook to act as agent, and pretended to have such authority, when he was not authorized.
    The judge overruled this objection, intending to reserve the question for the consideration of the whole Court. The [ *462 ] trial proceeded, and the plaintiff obtained a * verdict on the ground that the defendant was not authorized to sign the note, as agent to Perry.
    
    If, in the opinion of the Court, the plaintiff was entitled to recover under these circumstances, judgment was to be rendered on the verdict ; otherwise, the plaintiff was to become nonsuit, or such order made in the cause as to the Court should seem proper.
    
      W. and F. Baylies, for the defendants,
    cited and relied on the decision in the case of Long vs. Colburn 
      , as settling the present action. It is a well-settled principle, that a man giving a promissory note in the name of another, cannot be considered as giving his own note. The note in the case at bar purports to be so made. If it is binding as a promissory note, it is binding on Perry. The defendant may be answerable in a special action on the case, for assuming to be the agent of Perry, when, in fact, he was not; but he is not answerable, as on his own promise, to pay this money to the plaintiff.
    Morton. for the plaintiff.
    The note, in this case, was the proper promise of the defendant, and not that of Perry. The addition was a description of his relation to Perry, and was written to aid in a future adjustment between those two. If this had been a promise from A. to B., agent of C., it would have been a promise to B. 
      . Then the converse is equally correct . The case of Emerson fy Al. vs. The Providence Hat Manufacturing Company 
      , is not in point, as to its main drift; but the reasoning of the Court goes to support the present action. The chief justice observes, that the note in that case might, by operation of law, be the note of the person signing it as agent for the defendants.
    
      
       11 Mass. Rep. 97.
    
    
      
       8 Mass. Rep. 303.
    
    
      
       4 Mass. Rep. 595. —8 Mass. Rep. 162, 190, 199. —5 Mass. Rep. 299. —6 Mass Rep. 58.—1 D. E. 487.-9 Jtíass. Rep. 270.
    
    
      
       12 Mass. Rep. 244.
    
   Parker, C. J.

The question in this case is not whether the de-, fendant is liable for having undertaken to make the promise for Perry, but whether the note declared on is the note of the defendant.

It is obvious, from the signature, that it was neither given nor received as the defendant’s note. It is found * by the [*463 J jury, that he had no authority to sign it for Perry ; but the legal inference from this fact is, not that it became his promise direct ly, but that he is answerable in damages for acting without authority. What is stated in the case of Long vs. Colburn, as an intimation of the Court, was undoubtedly a settled opinion, viz., that, in such case, a special action upon the case would be the proper action.

One way, and perhaps the best way, to ascertain whether a party is sued in the right form of action, is to see of what fact the declaration gives him notice, and whether that constitutes substantially the contract to which he is called to answer. In the case before us, the defendant is charged with having made a promissory note to the plaintiff. The evidence produced is apparently the note of another. But he wrongfully made this note for the other. This is entirely new ground, of which the declaration gave him no notice, and which he cannot be expected to be prepared to answer.

Besides, if, the note is tó be considered as evidence of the defendant’s own promise, he must pay according to the tenor of it; whereas, if he were sued for falsely assuming an authority, he might defend himself by showing that the person, for whom he assumed to act, had afterwards ratified his act, or that he had otherwise satisfied the debt for which the note was given, or, perhaps, he might show that no debt was due for which the note was given, or that he had authority to make it. It is, in short, a proper subject for a special action, in which damages will be recovered according to the injury sustained.

In the cases cited by the plaintiff’s counsel, the parties held personally liable, either made themselves so by the terms of the contiact, though purporting to act for another, or they acted in certain capacities in which they had no right to bind the estate of those for whom they undertook to act. In the case before us, the promise was avowedly made by the defendant for Perry; and it was matter of * evidence, extrinsic to the contract, [ * 464 ] whether he had authority or not. The verdict is set •aside, and the plaintiff must be called.

Plaintiff nonsuit.  