
    Cook against Irwin.
    Monday, March 27.
    
    A public officer is not liable personally on contracts made by him officially, except upon the most clear and satisfactory evidence of an express and unqualified engagement to become so.
    Funds placed by Government in such officer’s hands, and invested by him in stock, but not specifically appropriated, do not alter the case.
    THIS was an action for money had and received, tried before the Chief Justice at Nisi Prius in February last, in which a verdict was found for the plaintiff. And now, on a motion by the defendant for a new trial, the circumstances oí the case were thus.
    On the 2d April, 1814, a contract was made between the United States, by the agency of the defendant, Callender Irvine, commissary general of purchases, and Morrison, Taylor & Co., of Lexington, Kentucky, for 60,000 pounds of gunpowder. The plaintiff alleged, that the firm of Morrison, Taylor Es? Co., consisted of James Morrison, George G. Taylor, William N. Lane, Bushrod Boswell, Joseph Boswell, David Sutton, James Maccoun, and David Maccoun. The contract with the United States was signed by James Morrison, George G. Taylor, and David Maccoun, agent. On the 20th September, 1814, 12,200 pounds of powder were delivered, and on the 13th October, 1814, 11,147 pounds, to captain Wooley, at Fort Fayette, Pittsburgh, who gave his receipts for the same. These receipts were put into the hands of J. W. Tilford, the general agent of James & David Maccoun, at Philadelphia, by Bushrod Boswell, with orders, as appeared by the deposition of J. W. Tilford, to receive the money, and pay one half of it to Simon Gratz, and appropriate the other half to the use of James Si David Maccoun. J. W. Tilford applied several times to the defendant for payment, and was told by him, that payment would be made as soon as the defendant received treasury notes from the government, which were expected every day. J. W. Tilford then applied to the plaintiff, David Cook, and told him that he had some receipts for gunpowder; that he had drawn on the commisary in favour of T. Es? P. Kelly, for 2000 dollars, and wished to sell the plaintiff a draft for the balance. The plaintiff said he could not purchase the draft till he knew whether it was good or not. J. W. Tilford then, on the 27th October, 1814, drew an order on the defendant, as commissary general, in favour of the plaintiff, for 8638 dollars and 68 cents, payable as soon as he should be in funds from the war department, and signed it for Morrison, Taylor £s? Co., and he and the plaintiff took it to the defendant’s office. The draft was presented toMr. Banger, the defendant’s clerk. The defendant was in the back room. The draft was taken to the defendant; and he was consulted about it. Payment of the draft was promised, and it was put on file in the office. The plaintiff asked if it was necessary to have the draft accepted. Banger said not. Banger then wrote a receipt for the money to be paid the defendant, to be signed by Tilford, for Morrison, Taylor Co., and told the plaintiff that would be his voucher. Tilford, who proved these facts, stated that he understood from Mr. Banger, that the business was done in their usual form and manner of transacting business. After this, the plaintiff gave Tilford his notes for 5000 dollars, payable in 60 days, and for 3000 dollars, payable in 50 days. One of these notes for 1000 dollars, the plaintiff discounted himself : the others, Tilford stated, were discounted by other persons. All the notes were payable to the order of James David Maccoun, and indorsed by Tilford, as their agent. 'They were regularly paid, and the proceeds were applied by Tilford to the exclusive use of James David Maccoun. The plaintiff and defendant did not agree as to the persons who composed the firm of Morrison, Taylor & Co., nor as to the power conferred on Tilford, to receive the money. On these Heads, the deposition of Tilford stated, that he had heard from James £s? David Maccoun, but from none of the others, that the eight persons before mentioned, composed the firm of Morrison, Taylor Co.; that he had no authority from James Morrison to receive any of the powder money, or to make the negotiation with David Cook, or to draw a draft on the commissary general: that there was no authority given to him by any one, to draw the bill for the powder money, but being the acknowledged agent of James David Maccoun, and being also entitled, as he understood, to receive the money for the powder, he took the mode of drawing the bill in favour of the plaintiff, as a convenient one.
    Various letters were also given in evidence, written to Tilford, in August, October, and November, 1814, by James ■is? David Maccoun, Bushrod Boszvell, Morrison, Taylor Ss? Co., Maccoun, Lane & Co., Morrison, Boszvells Sutfon. 
      respectively: by which it appeared, that the Maccouns and Lane, directed him to pay their debts with the proceeds of the powder certificates : while Morrison, Boswells Sutton, forbade him to do so, and directed him to deliver the receipts to Simon Gratz Brothers, if the money was not paid, or if he had received it, to pay one half the amount to Simon Gratz U Brothers, and no part of that half to the use of James David Maccoun. Simon Gratz & Brothers gave notice of their claim to the defendant, and offered on the 14th November, 1814, to take one half, and let Tilford receive the other half; but this was refused by the plaintiff. On the 16th November, the defendant returned the order to the plaintiff, having refused to pay it, on which the plaintiff had it protested for non-payment. The plaintiff brought suit against Gratz, and against the persons above mentioned, as composing the firm of Morrison, Taylor Go. The amount of the money due from the government, was received from them by the defendant, and invested by him in 6 per cent, stock, on the 13th February, 1817.
    
      C. J. Ingersoll and Binney, for the defendant, contended,
    1. That the plaintiff was not entitled to recover.
    2. That the defendant was not liable to the suit.
    1. It is admitted that Tilford had authority to receive the money. He was the general agent of fames David Maccoun; but had no authority from Morrison, Taylor Co., except in the single instance which led to this dispute. Bush-rod Boswell came to Philadelphia, and on their behalf, put the. powder certificates into Tilford's hands, with express orders to appropriate one half to James David Maccoun, and one half to Simon Gratz Brothers, when received from the defendant. He had no power to sell the debt, or to do any thing more than receive it and pay it over in the manner he was directed by Bushrod Boswell. To this purport are Tilford’s deposition, and all the letters. But the arrangement which Tilford made with the plaintiff was, not to receive money, but notes at 60 days, payable to fames &>' David Maccoun, in consideration of which, the plaintiff received a draft by Tilford, on the defendant. This arrangement was unauthorised. Tiford’s power was special; and the plaintiff was bound to take notice of this. A special agent cannot bind his principal beyond the limits of his anthority: though a general agent may. 3 T. Rep. 757. 1 Taunton, 347, The voucher which the defendant required, was not the plaintiff’s receipt, but the receipt of Tilford; and the utmost that can be said for the plaintiff, is, that he had power to receive the money in the same manner as Tilford. The assumption of a power to sell, deprives the principal of his power of revocation at any time before payment, and the importance of this power, appears in the present instance. They cited, Pinkney v. Hall.
      
       Lane v. Williams.
      
       Ex parte Bonbonus.
      
       Ex parte Peele.
      
       2 Ch. Cas. 38. Sheriff v. Wilkes.
      
       Grayson v. Hutton.
      
       Livingston v. Roosevelt.
      
       Ridley v. Taylor.
      
       Emly v. Lysle.
      
    
    2. The defendant is not liable in his private capacity. The contract was with the government, made by the defendant in his official capacity, and to them the contracting party must look. It would be ruinous to public officers, if they were made liable in their own estate for public contracts. There is no evidence of any promise by the defendant, which can take this case out of the general rule : he never meant to make himself personally liable : he refused to accept the order ; and in the transaction of the business, pursued the usual course of the office. To make him liable personally, there should be clear and express evidence of a promise. This principle is well settled in a variety of cases. Macbeath v. Haldimand.
      
       Unwin v. Wolsely.
      
       Hodgdon v. Dexter.
      
       Jones v. Letomb.
      
       Passmore v. Mott.
      
       Myrtle v. Beaver.
      
       Melchior v. Halsey.
      
       Walker v. Swartwout.
      
       Rathbon v. Budlong.
      
       Brown v. Austin.
      
       Rice v. Shute.
      
    
    
      J. R. Ingersoll and Chauncey, contra,
    contended, that the Court would not grant a new trial, if no injustice has been done. 6 Binn. 320. 4 Dall. 889. In this case, all parties concerned, were heard upon the trial, and the defendant’s legal objections are interposed to prevent justice. He is no more than a stakeholder between the parties. He has received the money from the Government and invested it in stock, as it must be understood, for the benefit of those entitled. The jury here by their verdict, have decided, that the plaintiff has been guilty of no fraud or collusion, and that he is entitled. But to examine the defendant’s objections.
    1. It is contended, that the plaintiff has no right to recover, because Tilford was a special agent, and exceeded his authority. But the evidence proves that Tilford was the agent of the whole concern, of which Morrison, Taylor Es? Co. constituted but a part. The letters shew, that all parties considered Tilford, as authorised to receive the money, though they differed as to the appropriation of it when received. Morrison, Taylor Es? Co., as well as James Es? David Maccoun, confirmed this authority. Bushrod Boswell delivered the powder certificates, as a partner, if not an agent of the whole concern. Tilford, it was admitted, was the general agent of James Es? David Maccoun, who were partners in the concern, and was therefore the general agent of the concern. A power to receive the money, includes a power to sell a draft or evidence of the debt. The fairness of the conduct of Tilford, and of the plaintiff, was left to the jury to decide, and their verdict does away any imputation of impropriety of conduct on their part. The cases cited on the opposite side, shew no more than that a special power of agency must be specially pursued.
    2. The general principle is not denied, that an officer is not personally liable on contracts made by him for the Government. But we rest on the defendant’s express promise to pay, in consequence of which, the plaintiff advanced his money. The defendant went beyond the line of his duty, and engaged to pay the money to the plaintiff, which was due upon a contract with Morrison, Taylor Es? Co., and recognised the authority of Tilford to draw the order. The defendant had no power to bind the Government to pay the plaintiff, of course he made himself liable. The cases cited on the other side, were actions against the agent of the Government on the original contract. They cited, 1 Br. Ch. 101. 1 East, 582. 2 Str. 955. 3 Caines’ Rep. 69. 4 Term. Rep. 343. 5 Esp. Nisi Prius, 247. 1 Bay, 368. 2 Johns. 48. 5 Johns. 58. 7 Johns. 391. 13 Johns. 313. 1 Esp. Rep. 311. 1 Taunt. 347.
    
      
       1 Salk. 126.
    
    
      
       2 Vern. 292.
    
    
      
       8 Ves. jun. 540.
    
    
      
       6 Ves. jun. 602.
    
    
      
       1 East. 48.
    
    
      
      
         Note in 1 East. 48.
    
    
      
       4 Johns. 251.
    
    
      
      
         13 East. 175.
    
    
      
       15 East. 6.
    
    
      
       1 Term. Rep. 172.
    
    
      
       1 Term. Rep. 674.
    
    
      
      
         1 Cranch, 347.
    
    
      
       3 Dall. 384.
    
    
      
       2 Binn. 201.
    
    
      
       1 East. 135.
    
    
      
      
         3 Wills. 149.
    
    
      
       12 Johns. 444.
    
    
      
       15 Johns. 1.
    
    
      
       3 Mass. Rep. 217.
      
    
    
      
      
         1 East. 572.
    
   The opinion of the Court was delivered by

Gibson J.

There is no doubt that Tilford was the agent of all the parties interested, for the purpose of receiving the money due on the contract; but, whether he had authority to sell the claim, and by that means deprive Morrison, Taylor £s? Co. of their right to revoke his authority, at any time before the money should be actually paid by the defendant, is a question not directly involved, and we will not, therefore, decide which. We are to enquire, whether the defendant has, by an express promise, engaged to pay the debt of the United States. Of the law on the subject, there is no doubt; A public agent treating for the government, but neither asking nor receiving credit for himself, is altogether irresponsible on any contract he may make in that capacity ; and where-ever his promise, or engagement, is connected with a subject fairly within the scope of his authority, it shall be intended to have been made officially and in his public character, uw» less the contrary distinctly and expressly appear. Were it otherwise, no man would be so imprudent as to accept an office with which individuals might have pecuniary transactions, for he could not perform its duties, without an absolute certainty of being ruined. Then, the policy of the law being, in all cases of doubt, to protect the officer, there can be no recovery against him, except on the most clear and satisfactory evidence of an absolute and unqualified engagement to be personally answerable. But, the policy of official protection aside, the rule is the same between private individuals, in every case of a promise by one to pay the debt of another. In England, and I believe, in most of our sister States, every promise of this sort is, unless it be reduced to writing, made void by statute. With us there is, unfortunately, no such statute; but the policy which gave rise to it elsewhere, so far operates here, that no recovery is permitted, where an absolute promise is not made out by clear and indisputable evidence. In the case before us, the whole evidence of a promise of any kind is contained in the deposition of Tilford. Previous to the period when he negotiated the draught to the plaintiff, he had, several times, called on the defendant, and been told, that the claim would be satisfied as soon as the latter should receive a remittance of treasury notes from Government, which was momentarily expected. On this, he proposed to sell to the plaintiff a draught on the defendant for the amount of the claim ; but before the arrangement was completed, the parties called at the office of the defendant, and presented the draught to Banger, his clerk. The defendant was in the back room, and the witness says the draught was taken to him by some one present, or that he was consulted about it, and thati‘ payment was promised ’’ and the draft put on file in the office. This js the whole of the evidence about the promise. Now beside that it is very uncertain, on this statement, whether the promise was made by the defendant or Banger, it is clear this was an official transaction, conducted throughout, as Tilford elsewhere swears, in the usual course of the defendant’s business, and the intendment of law therefore is, that the promise, if made by the defendant, was in his official character. If it were made by Banger, he could not bind the defendant either in an official or an unofficial transaction; and it is just as probable it was made by him, as by the defendant ; for Banger seems to have been the person chiefly consulted by the parties, and there is no decisive evidence of any one else having answered their enquiries. On this head the evidence is altogether uncertain and unsatisfactory. But what clearly shews that no personal responsibility was contemplated, is the refusal to accept the draft; Banger stating that their usual way of transacting business, was not to accept in such cases, and with that the parties were satisfied. Would they have been so, if this had not been a common office transaction in the usual course, or would they have gone away without some memorandum, or other kind of evidence to explain it, and secure the defendant’s personal guaranty? Beside too, the improbability that the defendant would, without any compensation for the risk, become personally responsible, for the sake of persons with whom he appears to have had no connection, and but little acquaintance, is monstrous. But it is unnecessary to consider the strong negative tendency of the evidence ; for it is altogether deficient in extent. It is not sufficient, to prove that the defendant merely promised payment; for that, in the course of an official transaction, can be referred only to payment in a course of official duty; but it is necessary to go so far, as to shew, that, for a good consi4eration, he entered into an .absolute and unqualified engagement to pay at all events, and out of his own pocket, if the public funds should fail him. But here there was no promise implying an engagement. W.hat is called the promise of the defendant was merely gratuitous, and in answer to enquiries as. to the value of Tilford,s demand. To enquiries of this kind, an officer is not bound to reply; but if he answer with good faith, he will not be responsible for the accuracy of the information he communicates, though for fraud he may be answerable in damages. Here, the evidence entirely fell short; and to leave the matter to the jury as a question of fact, without instructing them that by intendment of law, a promise in the course of an official transaction creates no personal liability unless that is expressly stipulated for, would be, perhaps, putting the cause in a point of view too favourable to the plaintiff. It was not á matter doubtful as to the evidence, but there was in truth, not sufficient evidence on which a verdict against the defendant could be founded.

A direct promise is therefore necessary to sustain an action against an officer. But Tilford having given a receipt for the amount, on which as a voucher the defendant received the money, it was, it is contended, received specifically as payment by the Government into the defendant’s hands, for the plaintiff’s use. But although funds were put into the defendant’s hands, and by him invested in the stocks, for the ultimate payment of this claim, when the persons entitled to the money should be ascertained, there is no pretence to say those funds were specifically appropriated by Government to the payment of any one in particular. The defendant was not an agent to receive payment for the plaintiff, and although funds were provided, payment by the Government remains yet to be made. There are, undoubtedly, cases in the books of assumpsit, for money had and received by regimental agents ; but it will be found, that in each, the defendant was the agent of the plaintiff, as well as of the government. Here the United States have not parted with the controul over the fund.

But it is argued, the defendant is to be considered as a mere stakeholder; the contest being between the individuals who contracted with the United States ; and, that as substantial justice has been done between them, the Court ought not to interfere with the verdict, because it may only be against some rule of law. Without unnecessarily entering into the merits of the disputes between those contractors, or saying any thing to the prejudice of any party in the suit depending directly between them, I may remark, that it is far from being clear, that injustice has not been done, or that the plaintiff has, under the transfer of the claim by Tilford, acquired any right at all. But as regards the defendant, injustice has certainly been done, which can be repaired, only by another trial: for it is not here, that he stands in all respects as a stakeholder, indifferent as to the event. The authority of the plaintiff to receive the amount due, is, to him, a matter of essential importance ; for though payment to the plaintiff on a void authority would not render the defendant liable to Morrison, Taylor Co.'in an action, still, as we must intend that Government will always do justice, the presumption is, that that firm would eventually receive whatever is due to it; and in the event of its being successful, the defendant would, in the settlement of his accounts, be held answerable for a misapplication of the money. It is said, however, that the individual claims of the parties, having been litigated and respectively decided on in this suit, would, doubtless, be a sufficient inducement for Government to refuse its interference in behalf of any one dissatisfied with the verdict. But for this, although it be highly probable, the defendant can have no pledge. In every point of view, then we are bound to award a new trial.

New trial granted.  