
    Bigelow v. Baker.
    In the Court below,
    Isaac Baker, Plaintiff; James Bigelow, and Eliphalet Steele, Defendants.
    
    A. applied to B. to purchase of him a patent right; B. doubting his solvency, declined giving him credit ; C. and D. then addressed a writing to B. to this effect—A. is authorized by us to contract with youfor a ¡latent right, &c. and we consider ourselves holden to fulfil whatever bargain he may make with you relative to that business for the price; and D. were ; whereupon B. transferred such right to A. and took his due-bill A. was, from the first, insol vent, and neglected payment: Held, thatC, liable
    THE plaintiff declared, that one Joel Rogers made application to him, to purchase the right of making and vending a certain churning-machine, for which the plaintiff had obtained a patent from the President of the United States; that the plaintiff being advised, that Rogers was not a man of property, declined giving him credit; and that the defendants, to enable him to obtain said right, executed, directed, and delivered to the plaintiff the following writing :
    “ Mr. Joel Rogers, the bearer hereof, is authorized by us, “ the subscribers, to contract with you for a patent right of “ the churning-machine ; and we consider ourselves holden “ to fulfil whatever bargain he may make with you relative “ to that business.—Harford, June 10th, 1803.
    “ Blifihalet Steele,
    11 James Bigelow.”
    
    The declaration further stated, that Rogers, by the direc-lion of the defendants, presented this writing to the plaintiff. whereby the plaintiff was induced to sell him said right; and that the plaintiff transferred to him “ the right “ of making and vending said machine in certain parts of “ the United States, and took of said Rogers a written due-tt bill for the same, in the words following :
    
      Amherst, June \Zlh, 1803.
    “ Due to Isaac Baker one hundred and thirty-five dollars, “ to be paid as follows, one hogshead of rum, the remainder “ to be one third in loaf sugar, the other two thirds in brown “ sugar ; the rum to be good West-India rum ; the above “ mentioned goods -are to be delivered at Hartford, at or be- “ fore the first day of July next.
    “ Joel Rogers,u
    “ That said Rogers, at the time of making said due-bill, “ was, and ever since has been, insolvent, and wholly unable “ to pay the said due-bill, or any part thereof; and the whole “ of said due-bill remains unpaid, and the plaintiff has re- “ ceived no part of the pay for the said machine sold to “ said Rogers as aforesaid ; and the defendants on the 10th “ day of June, 1803, became liable to pay to the plaintiff “ the contents of said due-bill, and in consideration thereof, “ assumed, See.”
    To this declaration there was a demurrer; which was ad; judged sufficient.
    Edwards, and Bradley, for the plaintiffs in error,
    The foundation of Baker’s right, to look for payment tb the plantiff in error, is alleged, in this declaration, to be a writing made by them, addressed to Baker, and delivered to him by Rogers. And the principal question, in this case, respects the construction of this writing. The general terms, used in the concluding sentence, (viz.) “ We con-i' sider ourselves tolden lo fvtlfil whatever bargain he may “ make with you relative to that business,” must, il the eoa-struction be made upon the whole instrument, be understood to be restrained and limited, by the previous clauses in the same writing. By the antecedent part of this writing, Ro-géis is declared to be “ authorized by the subscribers, to con-i' tract for this patent right.” These words import an agency, to purchase for the plantiffs in error, which Rogers might have executed, if he had chosen to do so: for a person, purchasing for another, acts under an authority derived from that other; but a person purchasing for himself, and in his own name, acts from his own authority, and not from any power delegated to him by another.
    
      Rogers wanted no authority from the plaintiffs in error, to purchase this patent right for himself ; he might want a credit, but could never want an authority ; and understood in that sense, this clause is absurd. But, if we interpret this clause, to intend, that the plantiffs in error did thereby constitute Rogers their agent, to purchase this patent right for themselves, we shall thereby give to these words, their usual and obvious meaning ; and Rogers will then be understood, to be authorized to make any contract, for the purchase of this machine for the plantiffs in error.
    This writing will then be understood, according to its only true meaning and obvious import, to read thus : “ We “ constitute Mr. Rogers our agent, to purchase for us, your “ patent right, &c. and we will fulfil his agreement for such “ purchase.”
    But it may be said, that this declaration, which is confessed by the demurrer, alleges, thatil this writing was made, <l to enable Rogers to obtain the right of making and vending this machine.” To this objection the answer is, that the purposes, for which the writing was made, are declared in the witting itself, and have been shown to be, to enable Rogers to purchase for the plantiffs in error, and not for himself. This averment, then, ⅛ contradicted by the written evidence, set out in the declaration ; but it was not competent to aver against this writing; the warrant could not be proved in contradiction to the writing ; and not being well pleaded, is Hot admitted by the demurrer.
    It appears from the subsequent parts of this declaration, that Rogers has never executed this agency, with which he was entrusted by the plantiffs in error—that he did not put'” chase for them, but for himself, and to secure the purchase money gave to Baker his own due-bill. The authority given Rogers could only enable him, if he pleased, to act as the agent of the plantiffs in error ; it could not deprive him of the power of acting in his own individual cap city ; and if, upon the whole, Baker chose to deal with him in that capacity, as it seems he did, upon what principle is it, that the plantiffs in error should now be brought in, to fulfil this contract ?
    It is said, that Rogers has hot paid his due-hill ; and, theie fore, the plaintiffs in error must pay it : but, if this is to be assumed as a substantive ground of liability, it would follow, that they must pay not this debt only, but every other debt, which this Rogers may Owe, and even the debts of every other person who may be unable to pay. This is proving too much, and the argument is refuted by its reduction to this absurdity.
    Again, it is said, that, in consideration of their liability, they have promised to pay this due-bill. Now, if they were before liable to pay, this promise is unnecessary ; and, therefore, may be well laid out of the argument : but if they were not before liable, this promise does not make them so •, because it is then without any shadow of consideration, and the. maxim is undoubt d, that ex nudo pacto non oritur actio.
    
    
      Dwight, for the defendant in error.
    It appears by this declaration, that Rogers attempted to purchase of Baker, the defendant in error, the patent right, but wanting- credit, failed.—Upon this, he obtains of Bigelow and Steele, the plaintiffs in error, the letter recited in the declaration. That they gave him this letter, for the purpose of enabling him to obtain the patent—and that on the credit of the letter, he did purchase. To this there is a demurrer.
    By the plaintiffs in error, it is contended, That the letter authorized Rogers only to purchase for them ; not for himself. But the plain language of it, refutes this idea. “ Rogers is “ authorized by us to contract with you, and tee consider our- “ selves hulden to fulfil whatever bargain he may make with “ you.” That is, we authorize him to make just such a bargain as he pleases, and we will fulfil it. Instead of being restricted, here is the utmost latitude given. The plaintiffs’ contracting to fulfil whatever bargain Rogers may make, necessarily implies that they had given him liberty to make -whatever bargain he might think proper. Any other construction would render the writing useless. The case compares with that of Tyler v. Marsh ; 
       where this Court established the construction I contend for, in a writing very nearly the same with this.
    It is perfectly clear, that Rogers did not want the authority ©f Bigelow and Steele, to contract in his own name. But he wanted their credit to contract at all. It is so expressly-averred, and the demurrer concedes it. Rogers’s object was to buy for himself; and it is to be presumed, that the plaintiffs knew it to be so ; and of course, it will follow, that they meant to authorize him to contract for himself; otherwise, they would have restricted him in terms, to purchase for them, and in their name. Besides, for ought that appears, the contract, though in Rogers’s name, was for their benefit.
    We do not claim to recover of Bigelow and Steele, on the ground of an implied, but of an express promise ; and that reduced to writing.
    
      
       Ante, vol, 1. p, 1.
    
   By the Court,

The judgment was affirmed,  