
    [Lancaster,
    May 24, 1824.]
    HOPKINS against MEHAFFY.
    IN ERROR.
    Where, in the body of a sealed instrument, the covenants arc stated as if they were made by a corporation, directly with the plaintiff', without the agency of any one, and the defendant is not named, but signs the instrument, and seals it with his own seal, as president of the corporation, and on their behalf, an action cannot be sustained upon it, against him individually.
    Tlie defendant has a right, during the trial, to change his plea.
    This was a writ of error to the District Court for the city and county of Lancaster, in an action brought by Joseph Hopkins against John Mehaffy, upon the following sealed instrument:
    
      “ Articles of agreement, made and agreed upon this nineteenth day of October, A. D. one thousand eight hundred and thirteen, between the president, managers, and company of the Manchester turnpike road of the one part, and Joseph Hopkins, of the borough of Marietta, Lancaster county, and state of Pennsylvania, of the other part, witnesseth; that the said Joseph Hopkins, for and in consideration of the covenants hereafter mentioned, on the part of the president, managers, and company of the said road, doth by these presents for himself, his heirs, executors, and administrators, covenant and agree, to and with the said president, managers, and company, their successors and assigns, that he, the said Joseph Hopkins, will at or before the first day of March next ensuing, make and finish, in a complete, substantial, and workmanlike manner, the mason work of the bridge across the Conowago gut on said road, at such place as the said president, managers, and company may direct, and agreeably to the plan laid down for the same; and find all the materials, requisite for building the same; all the stone work to be done without mortar: and have the two piers done on or before the first day of February next. And the said president, managers and company of the Manchester turnpike road, covenant and agree, to and with the said Joseph Hopkins, his executors and administrators, that the said president, managers, and company, will pay, or cause to be paid, to the said Joseph Hopkins, his executors and administrators, for and in consideration that he shall make the mason work of said bridge complete, and in a workmanlike manner, agreeably to the plan laid down for the same, at or before the time above-mentioned and agreed upon, the sum of one dollar and seventy-five cents for every perch of mason work done, of mason measurement, as follows; viz. five hundred dollars thereof, as soon as the two piers are finished, and the remainder as soon as he has the work completed as aforesaid. And for the true and faithful performance of all and singular the covenants, agreements, and stipulations in these presents contained, the parties hereto bind themselves, each to the other, in the penal sum of two thousand dollars, lawful money of Pennsylvania. In witness whereof, the said parties to these presents have hereunto interchangeably set their hands, and affixed their seals, the day and year first within written.
    
      James Mehaffy. (seal.)
    
      Joseph Hopkins, (seal.)
    Signed by the president, in behalf of the president and managers of the Manchester turnpike road, and by Joseph Hopkins, on his-part, in presence of William Child.”
    
    The defendant pleaded payment, with leave, &c.; but, on the trial, altered his plea to nonest factum, by the leave of the court, and against the consent of the plaintiff’s counsel.
    The errors assigned, on the return of the record to this court, were,
    1. That the court permitted the plea to be altered on the trial, which Hopkins, for the plaintiff in error, denied their right to do.
    2. That the court instructed the jury, that a suit could not be supported against the defendant, on the agreement above stated. On this point he observed, that it would be extremely hard, if the plaintiff could recover nothing for his work and services. He did not trust the corporation, but the defendant personally, who has put his hand and seal to the contract, and thus made it his own. No action can be supported on this instrument against the corporation; and if the plaintiff cannot recover in this action, he is without remedy. This case is analogous to that of Tippets v. Walker, 4 Mass. Rep. 595, in which several persons, composing a committee of a turnpike company, signed and sealed a contract as individuals, and on the plea of non est factum, it was held that they were responsible as individuals.
    
      Jenkins, for the defendant in error,
    when about to argue the first point, was told by the court that it was unnecessary.
    2. With respect to the second error assigned, he agreed, that if a suit could not be sustained against the corporation, the defendant was personally responsible. But such a suit clearly may be maintained, for the deed is the deed of the corporation. The defendant is not named in any part of the writing. The contract is wfith the corporation throughout, and sealed by the defendant expressly as president, and in behalf of the company. This circumstance distinguishes this case from that of Tippets v. Walker, where the contract was not made by the defendants on behalf of the corporation, but in their individual characters. In Randal v. Vanvechien, 19 Johns. 60, the defendants contracted as a committee of a corporation, under their hands and seals, and it was held that they were not personally liable, but that an action of assumpsit would lie against tire corporation.
    
      Reply.
    
    In this case the defendant has rested himself upon the fact, that the instrument sued upon was not his deed; but in the case cited from 19 Johns, the defendants pleaded specially, “ that they sealed, &c. as the agents of the corporation,” and evidence was given that the corporation had confirmed the contract. But here was a naked case, resting on the article of agreement alone, without proof that the defendant was the president of the company, or had authority to contract, if he was.
   The opinion of the court was delivered by

Gibson, J.

I cannot acquiesce in the law as laid down in some of the cases which have been cited. In general, it is true, that there is a distinction between contracts that are entered into on the part of government^ by its agents, and those which are entered into on the part of individuals or corporations, by those who represent them. In respect of the first it may safely be asserted, that whether the contract be by parol or by deed, the public faith is exclusively relied on, whenever the agent does not specially render himself liable. In respect of the second, where the contract is by parol, the agent is liable only where he had no authority to bind his principal; but the agent of an individual or corporation, covenanting under his seal, for the act of his principal, although he describe himself as contracting for and on behalf of his principal, is liable on his express covenant, whether he had the authority of the person whom he thus professes to bind or not. The law is thus broadly laid down by Mr. Chitty, in his treatise on pleading, page 24, and the authorities which he cites fully bear him out; to which may be added Tippets v. Walker, 4 Mass. Rep. 595. It is somewhat remarkable, that the distinction between a parol and a sealed contract was not taken, in Randal v. Vanvetchen, 19 Johns. 60, and that the authorities cited, to prove that an agent, who personally covenants in behalf of his principal, is liable only in the event of there being no recourse to the principal, directly prove the reverse. There is a class of cases referred to, which have nothing to do with the question. I mean those caces where the defendant undertakes to covenant for others, as well as himself; and there it is settled, that if he has no authority to bind the others,.he is nevertheless bound himself: not that he incurs an eventual liability, in consequence of the others being discharged, but he remains bound as he was originally, the instrument being his several deed. It is unnecessary, therefore, to inquire, whether the plaintiff might have an action of assumpsit against the principal, in consequence of the existence of a parol authority to the agent, to enter into the contract, because, whether he may or not, the agent is liable on his express covenant. But there is a striking and substantial difference, between the covenant of an agent, who describes himself as contracting for his principal, and the covenant of a principal, through the means, and by the instrumentality of an agent. The first is the individual covenant of the agent, the second is, the individual covenant of the principal; and in this respect the case at bar differs from Randal v. Vanvetchen, in which the distinction seems not to have been adverted to. No decision can be found in support of the position, that what appears on the face of the deed to be the proper covenant of the principal, but entered into through the agency of an attorney, (which by the bye is the legitimate form of the instrument, where the attorney is not to be bound,) shall be taken to be the proper covenant of the attorney, wherever he had not authority to execute the deed. How could he be declared against? If in the usual and proper manner of pleading it were alleged, that the agent had covenanted, it would appear by the production of the instrument that he had not, but that his principal had covenanted through his means; which, on non est factum being pleaded, would be fatal. This is precisely the case before us, except that it is not quite so strong. In the body of the instrument, the covenants are stated as if they were made by the corporation, directly with the plaintiff, without the agency of any one, the defendant not being named, but merely signing and sealing it with his own seal, as the deed of the corporation, which, I readily admit, it is not. Now to. avoid the difficulty which I have just mentioned, the plaintiff in declaring, does not, in the usual way, set forth the substance of the covenants, but alleges that, by certain articles of agreement between the parties, it was covenanted “as follows;” and then sets out the articles according to their tenor, assigning for breach, that the defendant had not paid &c. A demurrer would unquestionably have answered the puipose as well as the plea of non est factum, for the declaration sets forth no covenant of the defendant, and consequently no cause of action. But the paper is not the defendant’s deed. He sealed and delivered it undoubtedly; but there is something more than sealing and delivery necessary to a deed. It ought to contain the proper parts of a contract; and in this instrument there are no obligatory words, applicable to the person of thedefendant. Even the sealing anddelivery were as the president, and in behalf of the corporation. If the defendant had authority to contract for the corporation, although he has done so informally, there cannot be a doubt, that as the work has been done, the plaintiff may have an action of some sort against it. But he never treated on the basis of the defendant being personally answerable; and to permithim to maintain this action, would permit him to have what was not in the contemplation of either party, recourse to the person of the agent. I am, therefore, of opinion, that the judge who tried the cause, was right in directing the jury, that the paper given in evidence, was not the deed of the defendant. In regard of the other error assigned, little need be said. Under the act of assembly, a defendant may change his defence, after the jury has been impanelled, as a matter, not of indulgence, but of right, and in this also there is no error.

Judgment affirmed.  