dissenting. — I cannot agree to affirm the judgment of the county court. The evidence is detailed in the bills of exceptions. The action was assumpsit. The court, on the evidence, directed a verdict for the plaintiff. Of course, it must have been on the ground, that, taking all the testimony to be true, the plaintiff was legally entitled to a verdict. The ground of my dissent, is, that the defendant is not liable in this action, on the evidence, from any principle of law imperative in the case. If it was mutually understood, between the plaintiff and defendant, that the contract was made by the defendant as an overseer of the poor of the town, and the services performed by the plaintiff and the articles furnished for the pauperjwere on the credit of the town, the plaintiff cannot recover, unless the defendant made himself personally liable. I shall assume that the credit was not given to the defendant, on his promise, because no such fact is found by the jury, and because that was a question to-be submitted to the jury, and neither the county court nor this court are authorized to determine a question of fact, especially where there is conflicting testimony. Upon the whole testimony of the case, particularly that of Ives, the son of the plaintiff, and the fact that the plaintiff has brought a suit against the town of Wallingford for the whole amount he claims here, I should infer that it was not understood the defendant was to be personally responsible-; that there was no express promise on which theplain*333tiff relied, and that the credit was actually given to the town and not to the defendant. On this part of the case, however, it is sufficient to say that' it was a question to be submitted to the jury, and if the court, from the testimony, decided on this as a matter of fact, their decision was manifestly erroneous, and the judgment should be reversed. That the question should have been left to the jury, I infer from the case of Eaton v. Bell, 5 B. & A. 34 ; Macbeath v. Haldimand, 1 Term.R. 172; as well as from the principle that questions of intention, and to whom credit is given, and whether a promise was made, are to be submitted to a jury, being questions of fact and not of law.
That the defendant was not personally liable, if he acted and was understood to act as agent of the town, appears to me to be a principle well established. The leading case, on this subject, is Macbeath v. Haldimand, found in 1 Term. R. 172. The opinion of Justice Ashurst, in that case, which was said to be entitled to the most unreserved respect, by Judge Spencer, in the case of Walker v. Swartwout, 12 Johns. R. 444, was, that “ a person, acting in the capacity of “ an agent, may undoubtedly contract in such a manner as to “ make himself personally liable, and that brings it to the “ true question here, namely, whether, from any thing which “ passed between the parties, at the time, it was understood “ by them that the plaintiff was to rely upon the personal se- “ curity of the defendant.” In that case, as the evidence was wholly in writing, it was thought by the court that the import of those writings was matter of law and not of fact. This case has been followed in this country by that of Hodgson v. Dezter, 1 Cranch, 345, Walker v. Swartwout, above mentioned, and in some of the other states. In the case of Bowen v. Morris, 2 Taunt. 374, it was considered that the principle which governed the case of Macbeath v. Haldimand, applied to a mayor of a borough, acting as agent for the corporation. The decision of the court, in that case, is very pertinent to the one before us. They decided that the “contract did not bind the mayor, personally, because he did not contract in behalf of himself, personally ; that he acted merely as agent,” even though the corporation had not constituted him their agent, under „seal; so that he was not competent, by that contract, to bind the corporation. And in the case of Olney v. Wickes, 18 Johns. *334122, it was considered that the same principle governed the case of contracts made by an overseer of the poor for the maintenance of a pauper, and the overseer was placed on the same ground as a public agent or officer, and when he acts ostensibly in the line of his official duty, his contracts are public, and not personal, and I apprehend the remark of justice Platt well founded, that an express promise to pay does not form the criterion or the sole criterion of personal responsibility, but that it depends upon the character in which he acts, whether as a public agent or a private person. It appears to me, therefore, that this action cannot be maintained against the defendant, unless it was understood between the plaintiff and defendant that, he was to be person-all liable, which certainly was not the case. The action is, however, attempted to be supported on the ground that if the defendant was agent, he went beyond the scope of his authority and did not bind his principal, and, therefore, was personally liable. In the first place, it is to be remembered that the defendant was acting within the scope of his authority and did bind the town to a certain extent. On the very contract here relied on, the present plaintiff sued the town of Wallingford and recovered to the amount of five dollars, and the recovery was sanctioned by this court, at their January term, 1837. In the second place, I do not assent to the proposition that an agent is liable where there is no right of action against the principal. In the cases of Macbeath v. Haldimand, Hodgson v. Dexter, and Walker v. Stuartwout, there was no legal remedy against the persons in whose behalf they contracted, and the principal is general, that, when a man “ acts for the public and treats with another in that capacity, there is no pretence to say that he is personally liable.” This was the remark of Buller, J., in the case of Macbeath v. Haldimand. In the case of Cheney et al. v. Clark, 3 Vt. 431, where the building committee of an association for building a meeting house employed a person to labor for them in building a meeting house, they were held not responsible, because it did not appear they had pledged their individual credit and responsibility, or made an express promise, although it was a case where they could not bind the association, and there was no responsible principal who could; in any event, be made accountable. It is true, this seems to *335be at variance with the case of Horsely v. Bell, Ambler, 769, but,in the case before us, there is a principal for whose benefit the services were performed by the plaintiff. The ground ' on which the plaintiff failed to recover the whole amount of his claim of the town, was, that the overseers of the poor could not make a contract, obligatory on the town, for a greater sum than five dollars, without an order from a justice of the peace. The case is reported,8 Vt. R. 224. It is now claimed that the defendant should be liable, because it was his duty to procure the order from a justice of the peace, and the case of King v. Butler, 15 Johns. 281, is relied on. To this position I cannot assent, for the following reasons :
1. It does not appear, in this case, that the defendant was guilty of any neglect. He was but one of three overseers, and, for any thing appearing,he might have been controlled by the others.
2. The form of the action does not admit of this inquiry. The action is assumpsit. The inquiry is, whether there is a contract. If the defendant were to be made liable for this neglect, it should have been in an action ex delicto, and,
3. The extent of the powers of the overseers of the poor, was as well known to the plaintiff as to the defendant, and unless the defendant was guilty of some fraud or misrepresentation, as to obtaining the order, and if there was a mutual ignorance of the requirements of the law, I can see no reason why the effects of this mutual mistake should be transferred from the plaintiff to the defendant. If the plaintiff had any doubts as to the liability of the town, he should have required an express undertaking from the defendant to be personally responsible, in which case, we all agree, the action might have been maintained.
Of the case of King v. Butler, I have to remark, that, if it lays down any principles' which render this defendant liable, personally, I could not assent to it, as an authority. ' It was decided without argument, and it does not appear which of the learned judges of that court delivered the opinion. It was what is termed a per curiam case. The decisions which are found in Johnson’s Reports have always come to us with a weight of authority to which the learning, talents and exalted legal character of the learned justices, who composed *336the court,so justly entitle them, and,in general, when a subject appears to have been thoroughly investigated by that court, ' I rest satisfied that they have come to a right conclusion. If the case of King v. Butler were of that character,and decided the samé question now presented, I should have dissented with some hesitation. That case came before the court on a bill of exceptions to a decision of the court below, ordering a nonsuit. That case was assumpsit, and the defendant was an overseer of the poor, and the court decided, only, that an overseer was liable on his express promise.! to be personally accountable. The court say, “ the proof in the court below showed a most explicit and positive request, by the defendant to the plaintiff, to maintain the pauper, and an express and absolute promise to pay.” If this was the view of the court, it was sufficient to decide the case and all the after observations were uncalled for and may be considered as extrajudicial. At any rate, they do not appear to me to be well founded. But, moreover, it appears to me that that case was, in effect, overruled by the case of Olney v. Wickes, 18 Johnson. In speaking of the case of King v. Butler, Platt, J., who delivered the opinion of the court, says, that the contract in that case was in the nature of a special guaranty, and Spencer, Ch. J., who dissented, says, “we held, in King v. Butler, that the overseer was liable to a suit when he had requested the plaintiff to maintain a pauper, and made an express and absolute promise to pay Mm for the same,” and he thought, in that case, the proof was positive that the defendant, Wickes, did make such promise and that the plaintiff relied on his personal responsibility; for that reason alone he dissented. All appeared to agree that the case was to be governed by the decision of the question, whether the defendant contracted as an agent of the town, or in his private capacity, the majority holding that the idea of personal responsibility was repelled by the circumstances of the case, and the judges who dissented, that the reliance of the plaintiff was on the personal responsibility of the defendant. In the present case, had the question been submitted to the jury and they had found that Hulet, the defendant, made a special guaranty, or an express promise and on his personal responsibility, upon which the plaintiff relied, I should have *337acquiesced, however strong might have been my conviction that they made an erroneous conclusion, from the testimony.
Again, I cannot readily see how on one contract, made at' the same time and by the same words, by this defendant, he should be treated as an agent of the town and render them 'liable for a part of the money advanced, &c., and as contracting on his own responsibility and making himself personally liable for the residue, in other words, how one entire contract should be the contract of the town, to the amount of five dollars, and the contract of the defendant for the residue.
On a consideration of the whole case, it appears to me that it should have been left to the jury to determine whether the defendant made any promise on which the plaintiff did rely as making him liable in his individual character ; that, from the evidence, as detailed, it is apparent that both considered the contract as made for and in behalf of the town, and that it was a mutual mistake as to the powers of the overseers to bind the town; that there was no concealment or misrepresentation of the defendant as to the extent of his authority; that it is not an action, ex delicto, in which it would be proper to enquire whether the defendant was guilty of any neglect or misfeasance in not procuring an order ; that there is no evidence that he was thus guilty ; that the contract was the contract of the town, and so treated by the plaintiff, and so considered by this court, as to the sum of five dollars, part of the sums advanced by the defendant. For these reasons, I think the judgment of the county court-should be reversed. In this opinion, Judge Redfield, who was here at the last term and heard the argument, concurs with me.