
    
      E. H. Miller v. J P. Ford et al.
    
    The defendants, appointed by a resolution of the Board of Commissioners of Roads to rebuild a certain bridge, advertised as usual for proposals — bargained with plaintiff and took his bond for the faithful performance of the contract, signing and inserting their own names simply as “committee.” To an action on the contract the defendants pleaded in abatement the non-joinder of the other members of the Board. The plea was sustained, and on appeal, the Court ordered a new trial.
    When an agent maltes a contract as agent and at the same time names his prin- , cipal; in other words, when in making the contract, credit is given exclusively to his principal, he is not personally liable. Stoi'y on Ag. Sec. 263.
    ' A person contracting as agent will be personally liable whether he is known to be an agent or not, in all cases where he makes the contract in his own name, or voluntarily incurs a personal responsibility either express or implied; whenever from the form of the transaction he has become a direct personal party to the contract. Story on Ag. Sec. 269.
    If the terms of a written contract made by an agent, show explicitly that he is an agent,and that he means to bind his principal and not himself, that construction will be adopted, however inartificial the instrument may be ; but if the terms are not thus explicit, although it may appear that the party is an agent, he will be deemed to have contracted in his personal capacity. Story on Ag. Sec. 155.
    In cases of unwritten contract, the question whether the agent is liable, or the principal, or both, is a matter of fact, generally left to the jury. The inquiry is, to whom is the credit knowingly given according to the understanding of both parties 1
    In general, where credit is given either to the agent or the principal, a presumption will arise that it is an exclusive credit. This doctrine applies to cases where the agent is acting for a known principal, and the party dealing with the agent elects to credit one and not the other. But where the agent acts without disclosing that he is acting as an agent, or when acting as a known agent he does not disclose the name of his principal, although credit is given to the agent it is not deemed to be an'an exclusive credit; on the contrary, when the principal is discovered he also will be deemed responsible as well as the agent. Story on Ag. Sec. 291 — 288—279—270.
    Before-, J. at Georgetown,-■, 1849,
    This was an action of assumpsit, upon a contract for building a bridge. The declaration contained a count upon the special contract, and the indebitatus count for work and labor. Defendants pleaded in abatement the non-joinder of sixteen other persons, whom they alleged to have contracted jointly with them. Plaintiff denied that defendants had contracted jointly with the persons enumerated in the plea, and issue joined thereon.
    
      It appeared in the evidence, that the defendants had inserted in the public newspaper the following advertisement: “ Proposals will be received until the first Monday in February next, for rebuilding the bridge across Milldam Swamp, near China Grove. The bridge to be 115 feet long,” &c., prescribing the specifications, signed, “ J. P. Ford, J. R. Ford, Francis Green, committee.” In pursuance of this advertisement, plaintiff sent in a tender to the committee, undertaking to build the bridge according to the published specifications, for nine hundred and seventy-five dollars, the amount now sued for. His bid was accepted by the committee, and for the faithful performance of his contract they took from the plaintiff his bond, in the following form :
    
      “ Know all men by these presents, that we E. H. Miller, Wm. F. Blakely, John F. D. Britton, and John B. Miller, arev held and firmly bound unto the committee on China Grove' bridge, to-wit: J. P. Ford, J. R. Ford, and F. Green, in the penal sum, See, to be paid to the said committee, viz : J. P. Ford, J. R. Ford, Francis Green,” &c. &c. Conditioned for the faithful completion of the work. Signed by the plaintiff and his sureties.
    Mr. Howard, the Clerk of the Board of Commissioners of Roads, testified that the bridge had been completed and was in use previous to the commencement of this suit. On the part of the defendants, it was proved, from the minutes of the Board, that they had been appointed a committee to rebuild the bridge in question, by a resolution of the Board, under which they had acted, and they claimed to be exempt from personal liability upon their contract made in that character. Between the date of the contract and the commencement of the suit, there had been a change in the members of the Board, by death and the expiration of the term of many; and new appointments had been made by the legislature.
    His Honor the presiding Judge charged the jury, that the action should have been brought against the Board, and not the committee, and that as persons who constituted the Board at the time of the contract are the proper parties to the suit, whose names have been specifically set forth in abatement, the plea must be sustained.
    The jury found a verdict for the defendant's, sustaining the plea.
    The plaintiff appealed, on the grounds following:—
    1. Because the defendants are personally liable upon the contract entered into by them, in the manner set forth in the report.
    
      2. Because his honor decided that the individuals constituting the Board, at the time of the contract, and not at time of the commencement of suit, were the proper parties to the suit.
    3. Because his Honor decided, asa principle of law, that the Board and not the committee, were responsible; whereas, it is respectfully submitted, that the case made upon the issue anc the evidence, presented a question of fact, and it should have been left to the jury to determine to whom the credit had been given.
    Wilkinson, for the motion.
    
      Munro, contra.
   Curia, per Wardlaw, J.

The following extracts from Story on Agency contain propositions which are well sustained by authority.

“ When an agent makes a contract as agent, and at the same time names his principal; in other words, when in making the contract credit is given exclusively to his princi-pa]j js not personally liable.”

A person contracting as agent will be personally.,liable, whether he is known to be an agent or not, in all cases when he makes the contract in his own name, or voluntarily incurs a personal responsibility either express or implied ; wherever from the form of the transaction he has become a direct personal party to the contract.” ...

“ If the terms of a written .contract, made by an agent, shew explicitly that he is an agent, and that he means to bind his principal and not himself, that construction will be adopted, however inartificial the instrument-may be; but if the terms are not thus explicit, although it may appear that the party is an agent, he will be deemed to have1 contracted in his personal capacity.”

“In cases of unwritten contract, the question whether the agent is liable, or the principal, or both, is a matter of fact, generally left to the jury. To whom is the credit knowingly given, according to the understanding of both parties?” •

“ In general, where credit is given either to the agent or the principal, a presumption will arise that it is an exclusive credit. This doctrine applies "to cases where the agent is acting for a known principal, and the party dealing with the agent elects to credit one and not the other. But where the agent acts without disclosing that he is acting as an agent, or when acting as a known agent he does not disclose the name of his principal, although credit is given to the agent, it is not deemed to be an exclusive credit; on the contrary, when the princi-js ¿hSCovered. he also will be deemed responsible as well as the agent.”

In the case before us, if we regard the advertisement as an instrument which contains the terms of the contract that was made by the proposal of the plaintiff and the acceptance of it by the defendants, the intention of the defendants to bind the Commissioners and not themselves personally, does not explicitly appear; and the bond seems to indicate a contrary intention in the transaction.

If’we regard the whole contract as unwritten, the matter should have been left to the jury, with instructions that they should judge from all the circumstances to whom the plaintiff, at the making of the contract, ought to have been understood to give credit.

In this view the whole Court concurs; and as this decides the case, and there is some difference of.opinion upon the question made by the second ground of appeal, no further opinion is expressed.

A new trial is ordered.

Richardson, O’Neali. and Frost, JJ. concurred.

Motion granted.  