
    P. H. Hammarskold vs. William I. Bull, et al.
    
      Public Agents — Pleading—Evidence— Contract.
    
    Declaration in assumpsit against A., B. and otters, styled them “ Chairman and Commissioners of the New State Capitol,” and the bill of particulars, filed with the declaration, set forth charges for work done for the State: — Held, that the defendants were sued as public agents, and as such were not liable; and, even if sued as individuals, still, upon the pleadings and the evidence, they were not liable, no special contract, or special circumstances, being alleged or shown, which subjected them to personal liability.
    Where public agents are sought to be made liable as private individuals upon a contract made for the public benefit, the declaration should set out the special circumstances, as that they had exceeded their authority or had a fund with which to pay the plaintiff, upon which it is sought to make them liable, or the plaintiff cannot recover.
    Where several defendants are sued upon a joint contract the proof must show a joint contract by all, or the plaintiff must fail.
    BEFORE GLOVER, J., AT RICHLAND, SPRING TERM, 1858.
    Tbe report of bis Honor, tbe presiding Judge, is as follows:
    “ Tbe action was assumpsit brought by tbe plaintiff against William I. Bull, John L. Manning, Bicbard S. Bedon, Tbomas J. Goodwn, Benjamin E. Hunt, Charles McKay, J. Harleston Bead, Junior, and Tbomas M. Wagner, designated in tbe writ, 1 Chairman and Commissioners for tbe New State Capitol.’ Tbe declaration, after reciting tbe writ, alleges in tbe several counts that 1 tbe said defendants’ being indebted, &c.
    “As tbe evidence was voluminous, only so much will be reported as may be necessary in considering tbe plaintiff’s motion to set aside tbe non-suit.
    “Tbe General Assembly in 1850 appointed William I. Bull, R. S. Bedon, John Wilson, T. M. Wagner, L. M. Keitt and B. E. Hunt, of tbe special joint committee on tbe State House and grounds. Five thousand dollars were appropriated tbis year for repairs to tbe State House, and a report of tbe committee was adopted recommending tbe erection of ‘ a Eire Proof Building,’ and that tbe proceeds of tbe sale of town lots in Columbia be transferred to tbe Committee.
    “December, 1851, tbe following resolution was adopted: 1 Resolved, That a Committee of eight persons, three to be selected by tbe President of tbe Senate, and five by. the Speaker of tbe House, be appointed to take charge of tbe Eire Proof Building now under construction, in tbe room of tbe special joint committee whose term of service will expire.’ William I. Bull, R. S. Bedon and James Gregg, were appointed on tbe part of tbe Senate, but it does not appear that tbe House made any appointment. ‘The special joint committee on tbe State House and grounds,’ in December) 1851, state that they bad determined to erect tbe Eire Proof-Building 1 as tbe part of a plan which might be used as a State House,’ and that they bad, ‘ before commencing operations, employed a skilful architect to furnish a general plan of a complete building, and also of tbe part (namely tbe north wing) now to be built.’ Another appropriation was also made tbis year. Tbe 1st October, 1851, plaintiff received four hundred dollars, which is a credit in bis bill of partieulars, and is the first evidence of bis connexion with tbe work as an architect, or otherwise.
    “In December, 1852, William I. Bull, Richard S. Bedon and Thomas J. Goodwyn, on tbe part of tbe Senate, and Thomas M. Wagner, B. E.-Hunt and L. M. Keitt, on tbe part of tbe House, were appointed of a special joint committee on tbe State House and grounds, and about tbe same time tbe Senate appointed Professor Williams ‘on tbe committee on tbe fire proof building’ in tbe place of James Gregg, deceased. December 13, ‘ tbe committee on tbe State House and grounds to whom was referred tbe report of tbe Commissioners of tbe Eire Proof Building,’ reported, and recommended an appropriation of $50,000 ‘towards tbe completion of tbe Eire Proof Building now under construction; and also for tbe commencement of tbe next section, intended for a State Capitol,’ to be built according to the plans of P. H. Hammarskold, submitted to tbe last Legislature — and that tbe Commissioners are hereby authorized to contract for tbe same.’ Agreeably to this recommendation $50,000 were appropriated subject to the order of the Commissioners. Tbe only evidence offered, shewing that tbe defendants J. Harleston Read, Junior, and John L. Manning, were Commissioners, is found in the Minutes of tbe Commissioners’ proceedings. At a meeting held, 9th December, 1852, William I. Bull was in tbe chair, and R. S. Bedon, T. J. Goodwyn, B. E. Hunt, J. Harleston Read, Jr., and L. M. Keitt, were present, when it was resolved, 1 that tbe Commissioners report their accounts and proceedings, and apply for an appropriation of $50,000 for the prosecution of tbe Eire Proof Building.’ 1 At a meeting of the Commissioners of tbe New State Capitol,’ March, 1853, William I. Bull, J. L. Manning, T. M. Wagner, L. M. Keitt, present, it was agreed to pay certain sums specified for tbe foundation, &c.; of ‘the New State Capitol according to instructions by tbe architect.’
    “ 1853, December. Thomas F. Drayton was appointed by tbe Senate 1 a Commissioner of the New State Capitol,’ in tbe place of Professor Williams and Charles F. McKay, was appointed by the House in the place of L. M. Keitt. At tbe annual session of the General Assembly, this year, tbe Governor was directed to issue bonds for $250,000 which was appropriated on the recommendation of 1 the Commissioners of the New State Capitol.’
    “1854. At meetings of ‘the Commissioners of the New State Capitol’ in January and February, and on 26th May, (when the plaintiff was dismissed) William I. Bull, Chairman, and Bedon, 'Drayton, Goodwyn, McKay, Manning, Hunt and Wagner, were present; but all were not at eacb meeting. The report of a special joint committee, made December 21, 1854, on the Governor’s Message, Hammarskold’s memorial, &c., among other things states, that 1 To Mr. Hammarskold was allowed five per cent, on all amounts of money expended by the Commissioners for work done under his supervision and direction — and he was to discharge all the duties of an architect according to the custom and obligations of architects dealing with private persons, and was liable to be dismissed at any time, at the ¡Dleasure of the Commissioners. This was the contract with Mr. Hammarskold, the only evidence of which is to be found in the recorded resolution of the Com-sioners, and in the reports and written communications of Mr. Hammarskold. At a meeting of the Commissioners of the New State Capitol, the 21st October, 1853, William I. Bull, T. J. Goodwin, B. S. Bedon, B. E. Hunt, and J. Harleston Bead, Jr., being present, it was resolved, ‘ that Mr. Hammar-skold, as architect for the construction of the New Capitol, including the wing now under construction, received his appointment under this Board; that he bears the same relation to them that he would to a private individual, subject at all times to obey the decision of the commissioners, and also to obey any such suspension of the work as the Chairman may, in writing direct, until the matter suspended may be brought before a meeting of the Commissioners.’
    “It was resolved to accept tire iron windows furnished by Mr. Hammarskold on the same terms as those under contract from Mr. Werner, and that the Board will at some future time consider the extra expenses incurred thereon by the same.
    “ Much evidence was offered to establish the several items of the plaintiff’s claim set out in his bill of particulars, commencing in December, 1851; but it is not believed necessary to report it. If any shall be omitted which appellant’s counsel may suppose important, they will append it to this r'eport. In tbis connexion, it may be proper to refer to this case in 9 Rich. 474.
    “ A motion was made for a non-suit, on tbe following grounds:
    “ 1. Because tbe defendants are sued in tbeir official character, and not responsible for tbeir contracts personally.
    
      “ 2. Because there is no evidence showing any joint contract or liability of tbe persons sued as defendants.
    “ 3. Because there is no evidence which establishes a contract by the defendants except as officers of the State.
    “ 1. The motion was granted chiefly on the two first grounds* The defendants were attached to answer as 1 Chairman and Commissioners for the New State Capitol,’ and the declaration, reciting the writ, pursues this designation. ‘ The said defendants,’ used in the several counts, referred to persons before designated in their official characters, and it did not appear to me to be a sufficient allegation to charge them personally. If the intention had been to charge them in the official character with which they were clothed, the declaration is correctly framed for that purpose; and although words of designation may sometimes be omitted, they cannot be regarded as designationes personarum only and surplussage, in the connexion in which they stand with these defendants, who received their appointment from the General Assembly, and contracted as public agents with the plaintiff.
    “2. Conceding the sufficiency of the allegations to charge the defendants personally, it was insisted, that the evidence does not shew their joint liability in contracts made with the plaintiff. If his contract, as architect, was made October 1, 1851, when he received $400, or at any time before December, 1852, there is no proof either from the legislative records, or from the minutes of the Commissioners, that John L. Manning, J. Harleston Read, Junior, or Charles E. McKay, were parties to such a contract. Until March, 1853, when John L. Manning first attended a meeting of tbe commissioners, he does not appear to have been connected with them.
    “3. In support of tbe third ground, it was urged, that any contract made by the defendants with the plaintiff, was made in the character of public agents, within the scope of the authority conferred upon them, and that the plaintiff treated with them in their official character: That the appropriations made by the general assembly were for the work to be done, and not specifically for any one employee; that their authority was pursued and that there was no proof that they contracted with the plaintiff except in their public character.”
    The plaintiff appealed and now moved this Court to set aside the nonsuit, on the ground:
    Because his Honor held, that under the pleadings, the Court could not consider any evidence going to show that the defendants had exceeded their authority as public agents, or had promised and assumed in their personal capacity, or were in possession of a fund, or to show that the defendants were in any other way personally liable, or liable at alb save only as public agents, (and therefore, not answerable.) Whereas it is respectfully submitted that the declaration was sufficient to sustain the action against the defendants, viewed otherwise than only as such public agents; and that, therefore, the evidence offered by the plaintiff going to show such exceeding of authority, such personal promise and undertaking, such fund, such personal liability, and such liability, other than only as public agents, ought to have been submitted to the jury.
    Arthur, Bellinger,
    for appellant, cited 1 Chit. PL 246-7; Step, on PI. 302; Bristow v. Wright. Doug. 640 ; 1 Chit. PI. 372; Step, on PI. 378; McCool v. McCluney, Harp. 486; Browning v. Buff., 2 Bail. 175; Tobin v. Addison, 2 Strob. 4; 
      Beasley v. Bun, 8 Eieb. 845; Robinson v. Cornwall, 2 Bail. 137; Black v. Shooler, 2 McC. 275; Kennedy v. Richey, 1 Strob. 4; Burrell v. Jones, 3 B. & Aid. 47; Ang. & A. on Corp. 19; 1 Bouv. 77; 2 Kent, 278; Pittstown v. Plattsburg, 18 Johns. B. 407 ; Obit, on Con. 280; Batton v. Bell, 7 Eng. C. L. B. 13 ; Commissioners v. Murray, 1 Bicb. 341; 13 Mass. 193 ; 4 Bicb. 46; Davis v. Hunt, 2 Bail. 412; Vidal y. Clark, 2 Bicb. 359; Brown v. Faust, 2 Bay, 126; 5 Bicb. 298; 9 Johns. B. 334; 7 Eng. O. L. B. 13.
    
      Treadwell, DeSaussure, contra,
    cited Harp. 395; 2 Bail. 173 ; 1 Chit. PI. 357; 2 McC. 295; 2 Atty. Gen. Op. 1414, 1447; 1 Atty. Gen. Op. 189, 458, 507; 14 Pet. 497; 1 Ball. & B. 189 ; 7 Mass. 259; 2 Kelly, 214; 3 Mass. 214; 1 T.B. 142; 7 Dowl. 275; 7 Scott, 97; 5 Bing. N. C. 253 ; 4 Bing. 566; 1 M. & P. 290; 1 Bro. C. C. 101; 5 Barn. & Aid. 34; 2 B. & P. 155; 2 East, 343 ; 2 H. Bl. 530; Dong. 59 ; Cowp. 682 ; 5 T. B. 623 ; 1 Phil. Ev. 133, 159 ; Dong. 667 ; 4 East. 400; Dong. 640 ; Ang. & A. on Corp. § 580; 3 Hals. 182; 10 Go. 120; 1 B. & P. 140 ; 1 Went. PI. 181; 4 Scott, 182; Miller y. Ford, 4 Bicb. 132; 1 Cra. 364; Story on Ag. § 302 ; Story on Ag. § 306; 10 Smeeds & M. 398; 18 Johns. B. 122; 5 S. & B. 498; Fox v. Drake, 8 Cow. 191.
   The opinion of the Court was delivered by

O’Neall, J.

In this case I do not intend to follow the counsel through the immense array of authorities with which they presented their views to the Court. Our labors on the circuit and in this Court' are sufficiently onerous, without undertaking to write essays on pleading, and speculative points. I concur fully with the Judge below in his ruling on the two first grounds, and I think the third ground is also fatal to the plaintiff’s claim.

1. It is supposed that the former opinion, 9 Bich. 474, settled that the pleadings did not charge the defendants in their public character. But I am sure that is a mistake : the only point then before the Court was, whether my decision quashing the proceeding was proper. The Court thought it was not, and that the case must await its future chances, on a demurrer, or on a motion for nonsuit, after the facts had been fully brought out. That has been now reached, and we are now to decide, first, are the defendants charged in their public character? It seems to me if words have any meaning, such is the charge. They are sued as “ the Chairman and Commissioners of the New State Capitol,” and so treated throughout.' The bill of particulars which points out the proof intended to be adduced, tells the defendants, the plaintiff charges you with various particulars in your public character, as agents for the State. But all this is nothing says the plaintiff; what I have said about your public character is surplusage — I will strike it out. The rule is, if the allegation need not be proved to entitle the plaintiff to recover, it may be struck out as surplusage. Let us test this case in that way: strike out everything touching the public character of the defendants and the case then stands as a claim by plaintiff rendered Messrs. Bull, Manning, Bedon and others as private gentlemen. The first piece of evidence may be the plan for the new State House. Can that be a charge against them ? it is work done for the State, procured to be done by the plaintiff at the instance of the defendants, and with a full knowledge, on the part of the plaintiff that they were acting for the State. It would be absurd to say that could be a charge against them individually. When the public character of the defendants is taken from the case, the plaintiff cannot move at all, for he has no evidence to sustain such a case, ^

Again it is supposed, that they can charge the defendants under an express contract made by them, and which must make them individually liable. To say nothing about the necessity of declaring on that express contract, and the waiver of tbeir public cbaracter, let us loolc to the proof adduced, the resolution of the 21st October, 1858. It is strange how ingenious minds may be misled. That resolution is a clear declaration that the plaintiff had his appointment from, and under the board, that is, the Commissioners of the New State Capitol; he is told that he bears the same relation to them, that he would to a private individual. That means, that he is to them responsible as he would have been if he had been employed by them as private individuals. What a monstrous perversion of the sense of words, to talk about that as a personal private contract on the part of the Commissioners !

It is next supposed that these defendants may be charged on this declaration, on account of acting outside of their authority. It is surely enough to say there is no proof of any sirch thing. Their beginning and progress about the work was reported annually to the General Assembly, and they approved of the same. Ratification confirms all which has gone before, and it is the same as if authorized' before being done. But I do not think this proceeding could ever have charged them for any such thing. It would have been good pleading to have set out in an action on the case their public character, and then that they had exceeded their authority in inducing the plaintiff to do the work alleged and thereby he was injured.

If the defendants be regarded as a quasi corporation (which I do not think they are, they are merely agents acting for the State, like a committee from session to session of the General Assembly,) then that admits their public character, and there can be no recovery unless there be something beyond their contract. Now it may be when a quasi corporation has a fund to pay to the plaintiff, and will not pay it over, that by setting out that fact in the declaration there may be a recovery, but here there is no such matter set out. In any point of view on the first ground there can be no recovery.

2. On the second ground there is no proof whatever of a joint contract outside of the public character of the defendants. There is nothing like an assent by all to be bound except in the votes of a public body. So, too, many of the defendants came in at different times; and Messrs. Manning, Read, and McKay had nothing to do with his employment in October, 1851. Indeed Mr. McOay had no other agency in relation to the plaintiff than to move to dismiss him. Surely the absence of all proof of a joint contract is enough to end the pretence of personal liability.

8. The whole proof shows that the defendants contracted as agents of the State, and it is perfectly clear that they can not be made personally liable on such a contract. Indeed the law protects them entirely from suit. For the purposes of this case they are in place of the State. If this unfortunate plaintiff has any just claim let him apply to the General Assembly and he will have justice done to him. For never, in forty years, have I known a just claim utterly repudiated by the State. The General Assembly may render tardy justice, but as soon as they are convinced of the right, they have uniformly made amends.

The motion to set aide the nonsuit is dismissed.

WhitNER, Glover and MuNRO, JJ., concurred.

Ward LAW, J.,

concurring, said: — I think the defendants are sued as individuals, and that any judgment rendered against them on these pleadings must necessarily have been against them personally. If the intention had been to charge them officially, the action should have been against “The Chairman and Commissioners of the New State Capitol,” the body which acted by the will of a majority — a quasi corporation aggregate.

The pleadings, I think, are unobjectionable. The plaintiff alleges that the defendants promised, — they plead the general issue — under that plea it appears, by evidence, that the promises which were made, were made by the defendants as public agents, in other words, by the quasi corporation; the plaintiff may well rebut this, by evidence of anything which shows that the promises were binding on the defendants personally. It was no more necessary for the plaintiff to allege in his declaration the rebutting evidence, than for him to allege the evidence by which the making of the promise was to be shown.

I can see no evidence to show the concurrence of Mr. McCay in any joint promise to the plaintiff, made by the individuals, even if all the others 'became personally liable: and the joinder of too many defendants in an action upon contract is ground for nonsuit. Whatever Mr. McCay did was done in 1854, and was done by him as member of a board, not as an individual, and in exercise of the rightful power of the board to dismiss the plaintiff, not in confirmation of any unofficial agreement, which other members may have previously made with the plaintiff. A resolution, which in form seemed to have been adopted by the board, if it was such as to fix personal liability upon members, would avail only against the individuals who assented to it, and not against all the members of the aggregate body.

I have sought in vain for any evidence which would charge any of these defendants personally. The employment by some of them, in 1851, of an architect to prepare such a plan of a fire-proof building as would render the building fit to become part of a State House, was within the scope of their original appointment, and was approved by the Legislature. The resolution of October, 1858, instead of acknowledging or establishing a personal liability, shows that the contract of plaintiff was with the board, and not with private individuals, and merely asserts the authority of the board and its chairman, over him. The retention of his papers, even if admitted to be tortious, gives no action of assumpsit, against these individuals, for the advantage of it, if any, went not to individuals, but to the State for which they were acting. The appropriations which placed money at the disposal of the board, were not appropriations for the plaintiff, but for the work; and in the disbursement of them, a discretion was' entrusted to public agents, which a Court cannot control.

I concur -in dismissing the motion, but not in all the reasons which have been given for doing so. •

Motion dismissed.  