
    Syme v. Butler, Ex’r of Aylett.
    [Tuesday, October 31st, 1797.]
    Public Agent — Contracts —Persona! Liability. — A public olfleer. contracting1 on the part oí government, is not personally liable.
    Points of Law — Opinion of Appellate Court — How flade Available. — If a point of law arise in the cause, the party Lwho wishes to avail himself of the opinion of an appellate Court thereon,! should demur, [or I move the Court to instruct the jury, or present notes for a special verdict.
    In an action on the case, brought by Syme against Aylett’s executors in the District Court of King and Queen, the declaration contained several counts; 1. For flour, bacon and barrels sold and delivered; 2. A quantum valebat for the same; 3. For money laid out and expended. Plea, the general issue with leave. The principal question in the cause was, whether Aylett, who was Deputy Commissary' General of Purchases for the United States, was personally liable for a contract with Syme, for some flour purchased during the late war. The original agreement between them, is in the following words:
    '^Proposals made by Col. Syme to> William Aylett, D. C. G. P.- — December 25th, Í778.
    You may have all the flour manufactured this season at my Rocky Mills, at five pounds certain, and as much more as I sell one hundred barrels common flour for, to one person, for ready cash, delivered on demand under one contract and manufactured at my New Castle Mills, deducting four shillings and six pence per hundred for the wagonage from Rocky Mills to navigation, allowing me the same price for barrels as othpr millers get on Pamunky river. The flour to be taken from the mill door, in such manner as to prevent more than about one hundred and fifty barrels at one time in the mills. Paying me five thousand pounds directly, and fifteen thousand pounds the 1st day of March next, and the balance after that date as it is wanted.
    I agree to the above conditions, except in taking away the flour, which I promise to exert myself by my assistants in effecting, even to the last barrel; Col. Syme’s people assisting in loading, this is my ultimatum.
    William Aylett, D. C. G. P.
    I accede to the within, with this amendment to the exception, that when the quantity of flour on hand, after one month from this date, shall exceed the within stipulated quantity of 150 barrels, that I am to be allowed to employ wagons upon the best terms I can to transport it, so as to keep my mill clear and in order for business.
    J. Syme.
    I agree to the above.
    William Aylett, D. C. G. P.
    Upon the trial of the cause, the plaintiff filed a bill of exceptions to the Court’s opinion, which stated, “that at the trial of this cause, the evidence hereunto annexed, to no part of which any objection, judged valid by the Court was made, was offered, and by the Court ordered to go to the jury, a motion was made to the Court 107 *to direct a verdict to be found for the defendants, whereupon the presiding Judge did direct the jury, that upon the whole of the letters, it did appear, that the testator did not by the agreement given in evidence, nor by his own conduct appearing bj' the said letters, or any other testimony in the cause, make himself personally liable, and did direct the jury to find for the defendant, but the other Judge having been of opinion that the question' -whether the defendant’s testator made himself personally liable ought to be left to the jury, it was ordered by the Court, that the jury should upon the said evidence consider, whether the testator did upon the said testimony, make himself personally liable, and to find for the plaintiff, if he did, but for the defendant’s if he did not; whereupon, the counsel for the plaintiff, under all the circumstances, objected to the opinion of the Court.”
    There is nothing in the record which describes any particular papers, as being annexed to the bill of exceptions; but it is said, “the papers filed in this cause, are in the words and figures following, that is to say. ’ ’ After which follow a variety of documents, consisting of the written agreement aforesaid, of letters, invoices of flour, accounts, orders for flour and money, depositions of witnesses, &c. From which documents it appears, that' after the agreement aforesaid was made, a variety of letters, (in which the public service is often spoken of by Aylett,) passed between the parties; to most of which Aylett added the same letters D. C. G. P. to his signature, but to some he did not. The receipts and orders for the flour are generally given by some public officer, referring in some terms or other to the troops, or the public. In the correspondence, there was frequent reference to the expected receipt of public monies by Aylett, with which he intended to discharge the debt: and in one he says, he is ready to pay, but must have proper vouchers. This letter is signed William Aylett, D. C. G. P. 108 The depositions *related chiefly to the merchantable quality, the price and delivery of the flour, and to the payments made.
    The jury found a general verdict for the defendant, and the Court gave judgment accordingly. To which judgment, the plaintiff obtained a writ of supersedeas from this Court.
    Warden, for the plaintiff.
    The first question is, if Aylett, having made proposals for the flour, and signed his name with the addition of D. C. G. P., bound himself personally, or only bound the United States? Those letters may signify any thing else, as well as the commission which he bore; and, therefore, do not necessarily oblige the government, instead of himself. The tenor of the agreement is not so, and the additional letters don’t prove it. The first letter is to Aylett personally, and so is the style, and the initial letters contained no magic to bind the United States, instead of the writer. The agreement does not say, that the plaintiff should be paid at the public treasury, but that Aylett will pay some down, and the rest at stipulated seasons. Some he did pay; and he says in one letter, there is a run upon his treasury. The account is stated against Aylett; and there is no express agreement, that the government shall be bound. It was, therefore, a contract with Aylett; and he was to resort to government in his own right.
    The next question is, as to the opinion of the Court. Although the opinion of the presiding Judge only was positively delivered against the plaintiff, yet the jury probably paid more regard to it, than that of the junior Judge, inasmuch as that was no charge, but only by way of opinion, that the jury might consider it as they pleased : whereas, the charge of the presiding Judge was positive, and, therefore, more calulated to influence them. If, it had been left on the arguments of counsel, the jury would have decided for themselves; but, that differs materially from this case, where the junior Judge did not gainsay what 109 the presiding *Judge had said, and consequently, the impression from his charge was not removed.
    Washington, contra.
    The single question is, whether the Court’s decision was right or wrong? It is said, that the presiding Judge decided against the plaintiff; but, this is not correct. For, the Judges did not concur in the charge; but, the junior Judge was of opinion, that the jury should decide for themselves, upon all the circumstances of the case, and so the Court afterwards directed. But, suppose, it were otherwise, and that the Judges had not concurred at last, but had finally differed, then no opinion at all was given, and, therefore, no reason to impeach the judgment for misdirection.
    But, upon the merits, the law was clearly for the defendant, Macbeath v. Haldimand, 1 T. R. 172, which proves expressly, that Aylett was not personally liable, as he contracted on behalf of the public. Therefore, if the question was, whether the charge by the presiding Judge was right, it would be clear. It is true, that a public agent may, by special agreement, or concealing, his character, make himself personally liable. But, it is otherwise, when he avows his character, as Aylett did in this case. For, the addition of the initial letters to his name, was a clear avowal of the capacity in which he acted; and the whole question was, whether he meant to make himself personally liable or not. The jury, to whom the question was properly left, understood it, that he was not to be liable in his own right, but, that it was a contract on the part of the government merely, and they had a right to decide. Besides, as only the written evidence is stated, it don’t appear, that there was not other evidence to prove that he acted in his official capacity. Of course, there is no ground for disturbing the judgment, even on the evidence and the merits of the case. But, if the Court is of opinion, that the charge was right, it is no matter what evidence is in the record.
    *Wickham, in reply.
    According to the bill of exceptions, the Court were called on to give an opinion ; and one Judge gave a positive charge, but the other said that was not the opinion of the Court; and that according to his own notion, the matter ought to be left to the jury. Such a direction was accordingly given; and no particular opinion of the Court delivered on the testimony: which, according to Mr. Washington’s own case, there ought to have been; because, it was written evidence, and, therefore, the Court ought to have decided on it.
    Two questions occur: 1. Whether the party had a right to the Court’s opinion? 2. Whether a proper opinion was given? The presiding Judge did right in giving his opinion decidedly on the law of the case, and the junior Judge was wrong in declining it: because, he was bound to de■clare his opinion. It was wrong, therefore, to leave the case to the jury. The law says, that the jury shall not decide upon a question of law; and, therefore, if the question involves both fact and law, the Judge should determine the question of law. Eor, the party has a right to the opinion of the Court upon the law; and the Court should not refuse, and leave the matter at law, at large, to the jury. If the Court is divided in opinion, there may be some difficulty ; but, in that case, they should direct a special verdict, which is the only way of getting out of it.
    But, if this point be against us; still I contend, that the merits are with us. It cannot be denied, but an officer in Aylett’s situation might make himself personally liable, and that he would, be so, if the terms were personal. From the whole tenor of this evidence, Aylett seems to have intended to become personally liable. It does not appear, that he had any authority to contract for the United States; but he contracted with the United States, and Syme with him. He appears to be in arrear to the United States, and in one of his letters says, he must close his accounts before he resigns his office: which shews, he 111 considered the engagement *with Syme as personal, and that he wanted a voucher to settle with the public. In another letter, after a suit was brought, he says, if it were not for delay, he would prefer that mode of settlement to any other, and proposes a reference; which proves the' same idea, of his personal responsibility. As to the case from IT. R., the Governor there, probably, represented the person of the King, and then the contract was expressly with government. Besides, the account there was made up against government; but, here, it was against Aylett.
    Washington. Mr. Wickham states it, as if the plaintiff had moved the Court to instruct the jury, and they had refused. But, it was not the plaintiff, but the defendant who moved; and the defendant does not complain. If the plaintiff had insisted on the Court’s opinion, and been refused, perhaps there might have been something in the exception. But, as it is, there is none.
    Wickham. It could have required a counsel of more than ordinary assurance, after what had passed, to have made such a motion ; because, the Court had already decided. There is a general count for money had and received; and Aylett appears to have received large sums which were to pay for this flour, and, therefore, were received to the plaintiff’s use.
    Washington. That argument was proper for the jury, and was probably urged.
    
      
      Public Agent —Contracts —Personal Liability. — A man, contracting on behalf of the state, is not liable in his individual capacity. Tutt v. Lewis. 3 Call 834, citing, as authority for this decision, the principal case. See, in accord, Hodgson v. Dexter, Fed. Cas. No. 6,565.
    
    
      
       Special Verdict — Case Agreed — Instructions — Demurrer to Evidence — The principal case is cited in Green v. Judith, 5 Rand. 8, for the proposition that a jury may find a special verdict, or the parties may agree a case, or move for instructions to the jury; or, there may be a demurrer to evidence.
      The principal case is cited in this connection in Stegar v. Eggleston, 5 Call 458.
    
   FLEMING, Judge.

With regard to the question, whether this was a public or a private contract, I have no doubt. The whole of Aylett’s conduct shews, that he acted in his public and not in his private capacity. The very nature and style of the contract proves it; and it must have been known to the plaintiff, that he was negotiating as a public agent. I think, therefore, that Aylett was not personally liable. For, it is fully within the influence of the principle in Macbeath v. Haldimand, 1 T. R. [172.] That case is conclusive, and 112 the decisions ^referred to in it, go the whole length of determining this: particularly, that of Lutterloh v. Halsey; where an action was brought against Halsey, who was a commissary for the supply of forage for the army, by Eutterloh, who had been employed by him in that service, and it was held that the action would not lie. Which is verj' nearly the case before the Court; and, therefore, may be considered as putting an end to the question as to the original contract.

Nor is there any thing in the subsequent correspondence, which tends, as far as I can discover, to increase the-personal responsibility of Aylett. At any rate, it was a question proper for the consideration of the jury. For, I am clearly of opinion, that it ought to have been left to them to consider of the mixt testimony which was offered; and, therefore, that the Court were right in the direction which they gave, according to the opinion of Judge Buller in Macbeath v. Haldimand, [1 T. R. 182; see ante, p. 81.] And as they have decided the fact in favor of the defendant, I see no reason for disturbing a verdict, which I think right upon the merits.

My opinion, therefore, is, that the judgment should be affirmed.

CARRINGTON, Judge. The question made by the bill of exceptions, is, to the conduct of the Court relative to the instruction given to the jury. One exception taken by the appellant’s counsel was, that the senior Judge decided positively for the defendant. But, it appears, that the other Judge differing from him, they finally concurred in leaving it to the jury. So, that the first opinion of the senior Judge, whether right or wrong, was unimportant, as the final declaration of both Judges, and not the single opinion of either, was to be the rule. There is, consequently, no cause of complaint upon that ground.

But it was said, that the plaintiff had a right to the Court’s opinion on the evidence, and, therefore, ' that it ought to have been given. I think, though, 113 *that in the present case the jury had a right to decide upon the evidence; and, consequently, that the direction was right. If the jury mistook the law, the plaintiff should have moved for a new trial; or, if he feared it, before the verdict was rendered, he might have prepared notes for a special verdict, or demurred to the evidence; by either of which means, he could have got the Court’s opinion if he had desired it. But, instead of this, he chose to risque his cause with the jury altogether, and, therefore, must submit to the verdict; as he has shewn no error in the proceeding of the Court, which ought to avoid it.

Thus far with respect to the conduct of the Court:

But, upon the merits of the case, I am of opinion, that the verdict was right: for, the facts disclosed in the record, clearly prove, that Aylett contracted in his public, and not in his private capacity. His answer to the original proposal is designated by his public character; and it is not probable, that he would, upon his own account merely, have made so many large contracts as it appears he did. Neither is it presumable, that any person would have preferred him to the public in such a transaction, or' that he would have taken a risque upon himself, which might have involved him in ruin. The principle established in Macbeath v. Haldimand, 1 T. R., 172, is, that an officer appointed by government, and treating as an agent for the public, is not liable to be sued upon contracts made by him in that capacity: which is precisely the situation of Aylett, according to the facts contained in the record; and, therefore, that case may be considered as an express authority in favor of the defendant, upon the merits of the ca/tse. So, that the jury appear to me to have decided rightly upon the evidence. But, we are determining on the bill of exceptions, which discloses no error in the conduct of the Court; and, therefore, I am for affirming the judgment.

PENDLETON, President. The record is, apparently, voluminous; but it is 114 short as to the proceedings *in Court, the length being occasioned by the insertion of the evidence. Whether this be the whole evidence produced at the trial, dsn’t appear; but it seems, from the bill of exceptions, as if the question agitated in the Court, turned upon the contract and the conduct of Mr. Aylett, as appearing from that testimony: And if it was proper for this Court to decide upon the justice of the verdict, they might have thought themselves at liberty to do so, upon the evidence stated.

But, it is not the verdict of the jury, but the opinion of the Court, that we are to examine into, upon the bill of exceptions.

That-opinion, we must take from the final direction of the Court, and not from an opinion delivered by one Judge and retracted by him on discovering that his associate differed from him. The opinion of the Court was, to leave the whole matter to the jury, with this direction, that if they thought Aylett had, by his contract, or subsequent conduct, made himself personally liable, they were to find for the plaintiff; if not, for the defendant.

In Buller’s N. P., 316, it is laid down from Sir Thomas Raymond, 405, [Chichester v. Philips,] and I do not find it controverted that if the judge allow matter to be evidence, but not conclusive, and so refer it to the jury, no bill of exceptions will lie; and, accordingly, in the case of Macbeath v. Haldimand, the motion for a new trial is founded upon the Judge not having left the evidence to the jury, as well as on his having given a misdirection on a point of law.

It was said, this was a misdirection, as it was a question of law which should not have been left to the jury, since it is the right of every party to have a point of law decided by the Court: And it is true, that such is the right of parties.

Let it be observed, however, that we are not in the state of the Court of King’s Bench, on motions for new trials on misdirection of the Judge at the nisi prius trials, which are subordinate to and 115 are decided *upon the same principles, as if in the Court itself. They take the history of the trial from one of their body, who presided over it, giving his statement full credence. But we are an appellate Court, hearing the appeal from an inferior Court of distinct jurisdiction, and can judge only from what appears on the record.

Erom that source it should appear, that the appellant asserted his claim to have the point of law tried by the Court at the time of the trial; and it should be shewn on the record: that the question was upon a point of law : Which may be done several ways. By moving for the direction of the Court immediately, or to reserve the point of law on the case stated on the record, or, to move the Court to direct the jury to find a special verdict upon notes offered, shewing a question of law, or by demurring to the evidence, bring the whole question of law and fact before the Court.

None of these steps appear to have been taken by the plaintiff. On the contrary, for any thing which appears, he seems to have been willing to submit the whole matter to the jury. He does not move for any thing; but, the defendant having moved for a direction to the jury to find for him, the plaintiff opposes it, and successfully too: for, the-Court leave it to the jury, after which, he does not demur to the evidence, but excepts, and that not to the opinion of the Court, but to that of one Judge given and retracted.

In that view, it is an exception without a precedent.

If, we view the evidence with regard to the points on which the Court properly left it to the jury, namely: 1. Whether Aylett bound himself personally by the contract; it will appear, that the contract was with Aylett in his character of public agent, so as to bind government and not himself personally; and this is proved, not by the parade of letters called caballistic 116 only, but by Col. Syme’s ^'original proposals to deal with him as a public agent. So, that upon that point, the verdict was right both in law and fact. 2. As to the subsequent conduct of Mr. Aylett to charge himself; that was surely a fact proper for the jury: and, if it was proper to decide on it, I can only say, that there is a defect in the evidence to enable me to do so, which I presume might have been supplied on the trial.

The dispute was about price, a proper subject for the jury; and, it is to be lamented, that the parties had not settled it, when no loss to either would have happened: But, like many others, they got angry and went to law, and must abide by the consequence.

It is said, it appears, Aylett was indebted to the United States; and, that upon the third count for money, had, and received to the plaintiff’s use, Syme may recover. But, the counsel appears to have mistaken the count, which is for money laid out and expended by the plaintiff for the use of the defendant, and not for money had and received, as he supposed. But, it don’t appear that Aylett is indebted. Harrison says he was indebted upwards of eight millions of dollars by the treasury books: And Tate saj's, that by Aylett’s books there appears a small balance either way, but he cannot recollect which.

So, that the fact is undetermined until that account be settled.

Affirm the judgment.  