The first question is, the admissibility of
evidence, to prove the character in which the defendant contracted for the services of the plaintiff,—whether individually, or as a public officer. On this point, we think the ruling of the court is not subject to objection. The evidence conduced to establish the point, for which it was offered, and that was sufficient to make it admissible.
In the next place, the defendant claimed, that he made the contract, as a public agent, and therefore was not personally liable, unless indeed, in making the contract, he had been guilty of fraud, or misrepresentation, or had superadded his personal engagement. The plaintiff, on the other hand, claimed that the defendant did not contract, as a public agent, and furthermore, at all events, must be liable, unless he contracted in such a manner, “ as to give the plaintiff a remedy somewhere else.” The court ruled, in conformity to the claim of the plaintiff; and herein, we think, entertained an erroneous view of the law. The court held, that, in point of law, the defendant was not a public agent, and could not be classed with public agents, who are presumed, while acting in public business, to act in an official capacity. We do not readily apprehend, why the defendant, deriving his public and official character from the general law and the election of' the people of a given district, under the law, may not be held to be a public agent, as much as if he were the agent of the state, immediately, or of a county, town, society or school district. Wherein is the difference ? All derive their power from the same source, parceled out, only to be exercised in different jurisdictions, and for different purposes. Such, we understand to be the doctrine of our courts, as held in Adams v. Whittlesey, 3 Conn. R., 564; Perry v. Hyde, 10 Conn. R., 338; Sterling v. Peet, 14 Conn. R., 248; Johnson v. Smith, 21 Conn. R., *384627. And the same is the law in New York. Olney v. Wickes, 18 John., 124. Often has it been held, that selectmen, and other kindred officers, are public agents, officers of the law, though elected by their respective towns and districts.
We think, likewise, upon the second point made, that it does not follow, that an agent, acting either in a public or private capacity, is, of necessity, made personally liable, although he does not give a cause of action against some one else. We believe the law to be, that, if a person assumes to act and enter into contracts, in the name of another, as his principal, and does this, with an honest intent, openly, and fully disclosing all the facts touching his supposed authority, or which may be fairly implied, from his situation, and especially, if he provides against his personal liability, in any event, he can not he held liable, unless he be guilty of fraud or false representation; and even then, he is not necessarily liable on the contract itself. Story, in his treatise on Agency, page 322, says : ic It seems clear, that, in no case can an agent be sued, on the very instrument itself, as the contracting party, unless there are apt words therein, so to charge him; thus, if a person, acting as agent for another, should, without authority, or exceeding his authority, make and.,,execute a deed, in the name of his principal, and not in his own name, the agent would not be liable thereon, although it would not bind the principal.” The same was held in Douriman v. Jones, 9 Jurist, 454. Polhill v. Walter, 3 Barn. & Adolph., 114. The same doctrine was asserted in Massachusetts, in Long v. Colburn, 11 Mass., 97. Ballou v. Talbot, 16 Mass., 461 ; and the same in Penn., in Hopkins v. Mehaffy, 11 Serg. & R., 129. The cases in New York are somewhat “different, but, we think, there is no question, but that the rule laid down by Judge Story, is the rule of our courts. We would especially refer to the cases to be found in 1 Am. L. C., 432, and a later case in the 12 Eng. L. & E., 433.
*385We are aware, that it is not unfrequently laid down, as a rule of law, that, if an agent does not bind his principal, he binds himself; but this rule needs qualification, and can not be said to be universally true or correct, as the cases already cited, abundantly show. If the form of the contract is such, that the agent personally covenants, and then adds his representative character, which he does not, in truth, sustain, his covenant remains personal and in force, and binds him, as an individual; but if the form of the contract is otherwise, and the language, when fairly interpreted, does not contain a personal undertaking or promise, he is not person ally liable; for it is' not his contract, and the law will not force it upon him. He may be liable, it is true, for tortious conduct, if he has knowingly or carelessly assumed to bind another, without authority; or, when making the contract, has concealed the true state of his authority, and falsely led others to repose in his authority ; but, as we have said, he is not, of course, liable on the contract itself, nor, in any form of action whatever. The question in these cases, will be found to be one of construction of the language and meaning of the person who attempts to act for another, and is a question often attended with very great difficulty and doubt; but when the intention is ascertained, that intention should ever be the rule for deciding whose contract it is. The cases are exceedingly conflicting, and unsatisfactory, though they contain some principles universally acquiesced in. If the agent is acting in public business, and enters into a contract, for the benefit of the public, he is presumed to act in his official capacity, as in Hodgson v. Dexter, 1 Cranch, 345; but, if he is acting in private business, there is no’presumption for or against, and he is, or is not, liable, according to the language 'used. The county court held, that the defendant did not bind those for whom he apparently acted, and was therefore, of necessity liable himself. This is not correct.
*386We have no occasion to comment on other facts of the case, although we think, that, in a subsequent part of the charge, there is some obscurity in the language employed in instructing the jury; but we do not think it necessary to go into the question ; for we mean to place our decision upon the errors already pointed out.
In this opinion, the other judges concurred.
Judgment to be reversed.