HODGSON v. DEXTER

Martin, attorney-general of Maryland, and Key, for plaintiff in error. Dexter, and Mason, attorney of United States for the district of Columbia, for defendant.

Key made three points.

1st. That the defendant is individually and personally liable and bound to the performance of the covenant in the indenture contained, by him executed, and on which the suit is brought.

2d. That the defendant's first plea is bad in law, is argumentative, and does not put in issue matters competent to bar the plaintiff's action.

3d. That the defendant's fourth plea is bad in substance, is no bar, and wants form.

1st. The sixth plea and demurrer are calculated to bring into view the question whether the defendant has bound himself personally to the performance of the covenant.

Although a public agent is not generally liable for contracts made by him in that capacity; still he is capable of binding himself as well as his government, by using apt words for that purpose.

This case is not of importance from any general principles which it will establish. The decision must depend upon the expressions and operation of the indenture of lease.

The defendant has used strong obligatory expressions, of plain unequivocal import. "And the said Samuel Dexter for himself, and his successors, doth hereby covenant, promise and agree to and with the said Joseph Hodgson, his heirs and assigns." To weaken the force of these expressions, it is said that he only intended to bind himself in his official character as secretary at war, 1st. Because he is styled in the premises secretary at war; 2dly. Because the term successors is used throughout the instrument; 3dly. Because the words " said Samuel Dexter," and " said parties have hereunto set their hands and seals," refer to Samuel Dexter in the official character in which he is first named in the premises.

1st. As to the styling him secretary at war, in the premises, it is only a description of the person, designatio personœ.

It is the office of the premises to identify the contracting parties, and it is most common to use any honourable title which they may enjoy. It is not in the preamble that we are to look for the force of the expressions of the covenant, but in the covenant itself. It is a rule of construction that when obligatory words, of plain unequivocal meaning, are used, you cannot resort to other parts of the instrument to contradict them. But when equivocal or doubtful words are used, you may. A party using expressions that legally bind him, is estopped to say he did not intend to be bound in his individual capacity.

The word " himself," is to be taken separately from the words "his successors," and each is to be applied to the obligatory words of the covenant; reddenda singula singulis. The said Samuel Dexter covenants for himself and for his successors. He covenants that he will surrender the premises in good repair; and if he does not so surrender them, he covenants that they, his successors, will. Words cannot be stronger than those which he has used.

2dly. As to the word "successors," Mr. Dexter can have no successors in the legal sense of the word. It is true that Mr. Dearborn filled the office posterior to Mr. Dexter, and hence, in point of time, succeeded him, and was in that sense his successor; but he is not his successor in any known legal sense of the word. There is no legal connection between them. Mr. Dexter was not competent to bind his successor in any manner. He was not a corporation sole; and there is no law of the United States which authorizes him to bind his successor. The word "successors," has no operation whatever. Mr. Dearborn was not obliged to occupy the house, nor would an action have been maintainable against him for the rent. If he had been disturbed in the possession, he could have had no action upon the covenant; if he had been ousted, he could not have supported an ejectment. Even if Mr. Dexter had been a corporation sole, his successors would not be bound. No chattel can be limited to the successors of a corporation sole; but it will go to the executor, and not to the successor.

If these observations are correct, then the word "successors," is surplusage, and the lease enured to Mr. Dexter in his individual capacity; but this point will be resumed.

3dly. As to the words "said Samuel Dexter," and "said parties have hereunto set their hands and seals;" they can have no operation to let in Mr. Dexter's official character. Either he bound himself in his official capacity, or as an individual.

Nothing can be inferred from the word "said," but that it related to him in one capacity or the other; and in which, is the very question before the court.

Let us now examine this instrument upon principle.

1st. With reference to the person executing it; 2dly. As to the legal operation of its expressions.

All agents, acting as such, for avowed principals, only bind their principals; but it must be admitted that they are competent to bind themselves, as well as their principals, if they use apt and adequate words.

Government cannot carry on its operations but through agents, who are distinguished as its officers. I admit that an officer of government, contracting as such, for government, is not personally liable. The law neither creates nor implies any liability on the officer; but he may make himself individually liable by his express promise and contract. 1 Term Rep. 181. Macbeath v. Haldimand. There is nothing, then, in the character of secretary of war, that prevents him from using words that will render him liable. This leads to the second question, which is, whether he has used such words.

This lease is for eight months; but if for eight years, the same law must govern its construction. I hold it an undeniable position, that Mr. Dexter was not competent to bind his successors in office. If he could not, then the lease must have some operation. It cannot be intended to be a void lease. If not void, then it enures to Mr. Dexter and his executors. If it enures to them, they only are liable on the covenant, that is, he in his lifetime, and they after him. A much stronger case exists in the books. A bishop is a corporation sole; he has successors, technically speaking. Here, then, is a person who has a double capacity, competent to contract in either. So had Mr. Dexter. But, say the books, if a lease be made to a bishop and his successors, it enures to him and his executors. 1 Bac. Abr. 508. Corporation, E. 4. Co. Litt. 46. b. 12 Co. 105. Corven's Case. The word "bishop" in such a case is as much the description of his politic capacity, as the word secretary at war in the present case. A bishop has legal " successors;" and is not a habendum "to a bishop and his successors," as strong as the words "to the said Samuel Dexter and his successors?" If in the case of the bishop such a lease would enure to him in his individual capacity, à fortiori in the case of Mr. Dexter, who has no legal successors.

Again. The covenant to leave the demised premises in good repair, is a covenant real. 1 Bac. Abr. 534. 536. If it be a covenant real, and runs with the estate and interest, then, as the estate and interest passes to Mr. Dexter and his executors, he and they only can be bound. Suppose the lease had been for five years, and a stranger had taken possession; who could support an ejectment? Not the lessor, because he had parted with his interest: not the successor of Mr. Dexter, because he is neither a party nor a privy. Mr. Dexter only could have maintained the action, the estate and interest being in him. It never was out of him during the term. If the operation of law casts this lease upon Mr. Dexter, he who has the benefit must bear the burden; and he must be bound by this covenant to repair which runs with the estate.

The defendant's ideas violate all the rules of construction.

1st. In a deed, when words of a precise import are used, you cannot resort to other expressions for a supposed intent. The word " himself," in the covenant, is too plain to admit of doubt.

2d. No words shall be rejected which can be made to operate. By their construction, the word "himself," which has a definite meaning, must be rejected, and give way to the word " successors," which, in this instrument, can have no meaning.

3d. Such construction shall be given ut res magis valeat quam pereat.

According to our construction the deed is operative; but according to theirs it is mere waste paper.

1st. They say that Mr. Dexter is not bound.

2d. All must agree that his successor is not bound.

3d. Ex consequenti, nobody is bound.

The case of Unwin v. Wolsely, 1 Term Rep. 674. is clearly in our favour. In that case the contract was by an officer of government who expressly contracted " on account of his majesty," and covenanted " on account of the king," that " government should be answerable." In our case there are no such words, nor any thing except the styling himself secretary at war, and using the term successors, which can possibly indicate any intention to bind the government.

2d point.

The first plea in bar is bad. The matter is insufficient to bar the plaintiff from his action. The substance of it is, that the house was burnt without the negligence or other default of the defendant. This is no answer to an express covenant. Due care and diligence is nothing more than every bailee for hire, where there is no express agreement, is bound to use. The plea puts in issue the negligence or default of the defendant, and throws the onus probandi on the plaintiff to show actual negligence; whereas the defendant ought to show such an inevitable casualty as to bring himself within the benefit of the exception. He states that the fire happened without his default, from some cause to him unknown; but it does not thence follow that the destruction of the house was inevitable. It is immaterial whether it happened with his knowledge and will, or without. The plea does not bring in issue the fact whether the destruction was inevitable, or not; but only whether it happened with his knowledge and by his default.

Default or negligence means the want of ordinary care.

3d point.

The merits of this plea have already been discussed in speaking of the word "successors," in the lease. The demurrer here is not by the plaintiff to the defendant's plea; but by the defendant to the plaintiff's replication; but if the replication is bad, yet if the plea is bad, judgment must be for the plaintiff, unless the court should be of opinion that the declaration also is bad, inasmuch as it is not supported by the indenture of which a profert is made, whereby it becomes part of the declaration. In that case the fate of this demurrer must depend upon the question of personal liability of the defendant.

Dexter, contra.

1st. It is admitted by Mr. Key, that the defendant had a right to make a public contract, and thereby to bind the government; and we admit that he was also competent to bind himself. The question then is, whether this is a public contract; or whether the defendant has bound himself personally. In addition to the internal evidence of the deed itself, the plea states other material facts which are admitted by the demurrer, and which tend to prove the intention and understanding of the parties at the time of contracting. These facts are, 1st. The order of the president, pursuant to law, to remove the offices to Washington; 2d. Their consequent removal; 3d. The necessity of providing a house in which they might be held; 4th. That for these purposes, and for no other purpose whatever, the buildings were, by the plaintiff, leased to the defendant; 5th. That the defendant was at that time secretary of the department of war. These facts show the authority which the defendant had to bind the government, and the purpose for which the contract was made. The contract, then, being made by a public officer of the government, having authority therefor, and for the use of the government, is primâ facie a public, and not an individual, contract. The question then is, whether the defendant has pledged his individual credit, in addition to that of his government. This depends upon the intention of the parties; for the intention of the parties in all cases constitutes the contract. This intention is to be known by the words they have used; but if those words are doubtful, resort may be had to other facts, such as the subject matter of the agreement, the purpose for which it was made, and the official character of the parties, or either of them. But in the present case the words of the instrument itself seem to leave no room to doubt. In the premises, the defendant is styled secretary at war, and throughout the whole deed, when he is mentioned, he is called the said Samuel Dexter, referring to the official description contained in the premises; and in the conclusion it is said that the said parties have thereunto set their hands and seals. The word " successors" also is used wherever the name of the defendant occurs in the instrument; and, whether he was competent to bind his successors or not, yet it shows the intention of the parties, and the character in which the defendant meant to contract. It shows also who was to occupy the premises after the defendant should cease to be secretary at war. The plaintiff himself also has clearly shown what his understanding was at the time by covenanting on his part that the successors of the defendant should quietly occupy and enjoy the premises during the term. This shows that the plaintiff understood he was contracting with a public officer, for public purposes. But great stress is laid upon the word "himself." The said Samuel Dexter, for himself and his successors, covenants to keep the premises in repair. How does he covenant for himself? Clearly for himself while in office, and as the representative of the government, his principal. The same arguments which show this to be a public contract, explain and limit the meaning of the word himself. Who is "himself?" The said Samuel Dexter. Who is the said Samuel Dexter? The premises say, Samuel Dexter, secretary at war.

The case of Macbeath v. Haldimand, 1 Term Rep. 172. is a much stronger case against the individual than the present, and yet the court had no hesitation in declaring it to be a public contract, and that the individual was not liable. In that case nothing was said expressly of contracting on account of the government, or for himself and his successors. In order to show that the defendant meant to pledge his individual credit in addition to that of his government, the plaintiff ought to make out a very strong case, in express terms; for if public agents are to be made liable upon presumptions arising from equivocal expressions, no prudent man will undertake to conduct the public business, where, of necessity, contracts must be made to an immense amount. If a doubt exists, the construction ought certainly to be in favour of the agent. The case of Unwin v. Wolsely, 1 Term Rep. 674. clearly shows that no difference, in the construction of the contract, can arise from the circumstance of its being under seal.

The intention of the contract being to bind the government, it shall not, by reason of the seal, become the contract of the individual who did not mean to bind himself. The only operation of the seal is to raise the agreement from a simple contract to a specialty. The seal, therefore, does not make it the deed of the individual. It is immaterial whether the words " on account of his majesty," make the case of Unwin v. Wolsely, a stronger case in favour of that defendant than the present. The case is not cited to compare those facts with these, but to show that the seal makes no difference between that case and the case of Macbeath v. Haldimand.

2d. point. Inevitable casualty.

The objections to this plea seem to be, that it throws the onus probandi upon the plaintiff; and that the facts do not show an inevitable casualty.

The plea has stated all that was possible to state; all that was within our knowledge; and if they do not show the case to be prima facie within the exception of the covenant, the plea is bad. No form of plea which the defendant could have pleaded, as to this point, would have laid the onus probandi on him.

The exception of inevitable casualties is in its nature a negative. One of the counts in the declaration avers the destruction of the buildings to have been by an evitable casualty. Upon this averment the defendant might have taken issue, and said it was not by an evitable casualty, or, in the words of the lease, that it was by an inevitable casualty, which is equally a negative proposition; and in either case the proof would lay on the plaintiff. So if the defendant had pleaded that the accident happened notwithstanding he had used the utmost care and diligence to prevent it; the plaintiff must have replied some act of negligence. For it cannot be supposed that the defendant should show particular instances of his care for every moment of his occupation during the whole term. Suppose the defendant had pleaded that the fire arose by accident in the adjoining house, and communicated to the house in question; (this example is assumed under an impression that such was the fact;) would that have been more satisfactory to the plaintiff than the present plea? He would still have to show that the defendant had not used reasonable means to avoid its effects.

In the case of Monk v. Cooper, 2 Lord Raym. 1477. the form of pleading is not more certain than the present; and is the form which has been ever since used in cases of destruction by fire.

It is understood that the learned gentleman who is to close this argument has given an opinion, and means to contend, that inevitable casualty means the act of God.

But surely it cannot mean an accident only evitable by the power of the supreme being. Death is usually termed the act of God; but death may be by human means, which may often be avoided; as in the case of murder. So death may be the consequence of unskilfulness of the physician, and might have been avoided by employing a man of more skill. So a man by exposing himself to a storm may take cold, and death may ensue; which might have been avoided by not exposing himself to the storm. Yet in all these cases the death is said to be the act of God. An inevitable casualty, therefore, is not always the act of God; but must mean, in the present case, a casualty inevitable by the defendant. It cannot mean a casualty evitable only by the united exertions of the whole human race. A whirlwind is said to be the act of God, yet its effects may be prevented by building a wall of brass about the house of sufficient strength. So the effects of lightning may be prevented by proper conductors; and the ravages of enemies may be impeded by a sufficient human force. These examples are cited to show that the term inevitable casualty cannot be confined to those accidents which are usually termed the acts of God; nor to such as are inevitable notwithstanding the united exertions of all the world. Where, then, is the line to be drawn?

It is believed that the true meaning of the expression is, such accidents as cannot be prevented by reasonable care and diligence.

But even taking the expression to be confined only to those accidents which are called the act of God, yet there are not wanting old authorities which expressly call a sudden fire the act of God, although more modern writers have very properly termed it an inevitable accident. 1 Roll. Abr. 808. pl. 6. under the head of "what acts shall excuse an escape," says, "so if the prisoners escape by sudden fire, this shall excuse the escape, for this is the act of God." And in Dyer, 66. b. 15. it is said, "if he plead that the prison was broken by enemies of the king, or by sudden fire, which is the act of God, or by such force or vehement power that he could not resist, this is good matter."

The case of Forward v. Pittard, 1 Term Rep. 27. is a very strong one upon this point. There was a verdict for the plaintiff, subject to the opinion of the court upon the following case: That the defendant was a common carrier from London to Shaftesbury. That on Thursday, the 14th October, 1784, the plaintiff delivered to him, on Weyhill, twelve pockets of hops to be carried by him to Andover, and to be by him forwarded to Shaftesbury by his public road wagon, which travels from London, through Andover, to Shaftesbury. That by the course of travelling, such wagon was not to leave Andover till the Saturday evening following. That in the night of the following day after the delivery of the hops, a fire broke out in a booth, at the distance of about 100 yards from the booth in which the defendant had deposited the hops, which burnt for some time with unextinguishable violence, and during that time communicated itself to the said booth in which the defendant had deposited the hops, and entirely consumed them without any actual negligence in the defendant. That the fire was not occasioned by lightning."

The counsel for the plaintiff in that case contended that a carrier is liable in all cases except the loss be occasioned by the act of God or the king's enemies: and a distinction is taken between the act of God and inevitable accident.

The counsel for the defendant insisted that he was not liable for accidents happening without any default or negligence of the carrier.

Lord Mansfield said there was "a nice distinction between the act of God, and inevitable necessity. In these cases (of common carriers) actual negligence is not necessary to support the action."

Afterwards, Lord Mansfield delivered the unanimous opinion of the court. "It is laid down that a carrier is liable for every accident, except by the act of God, or the king's enemies. Now what is the act of God? I consider it to mean something in opposition to the act of man: for every thing is the act of God that happens by his permission; every thing by his knowledge. But to prevent litigation, collusion, and the necessity of going into circumstances impossible to be unravelled, the law presumes against the carrier, unless he shows it was done by the king's enemies, or by such act as could not happen by the intervention of man, as storms, lightning and tempests."

"If an armed force come to rob the carrier of the goods, he is liable; and the true reason is, for fear it may give room for collusion, that the master may contrive to be robbed on purpose, and share the spoil.

"In this case it does not appear but that the fire arose from the act of some man or other. It certainly did arise from some act of man; for it is expressly stated not to have happened by lightning. The carrier, therefore, in this case is liable, inasmuch as he is liable for inevitable accident."

The court in that case call a fire arising from the act of man an inevitable accident, but decide, that the carrier is liable, inasmuch as he is liable for inevitable accident; being considered as an insurer. There the case shows that the fire arose from the act of man; but inasmuch as it was without any default of the carrier, the court called it an inevitable accident. In the present case, the plea states, that against the will, and without the negligence, or other default of the defendant, the building was consumed by fire arising from some cause then and yet wholly unknown to the defendant. The only difference in the two cases is, that in the case of the carrier, the fire appeared to have arisen from the act of man, but in the present case, the cause of the fire is wholly unknown. If the former was justly called an inevitable accident, a fortiori, the latter ought to be so called.

In Comyns' Rep. 631. Destruction by fire is admitted by the counsel on both sides to be an unavoidable accident.

In Jones on Bailment, a work remarkable for the correctness and precision of its language, p. 90. Amer. ed. (p. 49. English ed.) is this expression: "If they be destroyed by wreck, pillage, fire, or other inevitable misfortune." In page 93. (51.) he cites a paragraph from Puffendorf, "that the borrower ought to indemnify the lender, if the goods lent be destroyed by fire, shipwreck, or other inevitable accident." In page 97. (53.) he says, "there are other cases, in which a borrower is chargeable for inevitable mischance; for example, if the house of Caius be in flames, and he be able to secure one thing only," c. And in p. 142. (78.) "there is no obligation in the bailee to suggest wise precautions against inevitable accident, and he cannot, therefore, be obliged to advise insurance from fire." In page 146. (79, 80.) he says, "although the act of God be an expression which too long custom has rendered familiar to us, yet, perhaps, on that very account, it might be more proper, as well as more decent, to substitute in its place inevitable accident." See also p. 135. (73.) 146. (79, 80.) 149. (81, 82.) 32. (18.) as to the peculiar law respecting innkeepers and common carriers, and as to the general principle that the bailee is liable only for negligence, the degree of which is regulated by the nature of the bailment.

The authorities thus cited show that fire in former times was called the act of God, but in latter days it is termed, in the very expressions of the lease, an inevitable accident, an inevitable casualty, an inevitable mischance, or an unavoidable accident, by lawyers, by judges, and by elementary writers. The presumption, therefore, is strong, that the case of fire was the very case of inevitable casualty, which the exception in the lease was intended to guard against.

3d. As to the third point.

It is immaterial whether this be considered as the contract of the officer in his official capacity, or of the government, and whether an action will or will not lay against the successor. That question can only be of importance as it concerns the mode of the remedy, but does not affect the point of personal liability. It would be ruinous not only to the agent, but to the government itself, if this doctrine of individual responsibility is to be established. Suppose the defendant or his successor had been dispossessed by the plaintiff during the term, who would have the right of action? If the defendant, after he was out of office, had the sole right to sue, the office must be at his mercy. He might release the contract. Suppose a contract made by the secretary at war, for supplying the army, and advances as usual made to the contractor. Suppose the sum advanced to be 50,000 dollars, (which in such cases is not a large sum,) and the contractor pockets the money, and refuses to make the supplies. The secretary becomes bankrupt, or refuses to bring suit, or dies, and his executors refuse to sue. How are the public to compel them? Is it consistent with the dignity of the United States to ask their leave to bring suit? There is now existing a contract for the casting of cannon, made by the defendant while in office. Can the secretary out of office release this contract? Can he give a valid release of the contract for supplies to the army?

These examples show that the ex-secretary is not the person contracting, and that the suit is brought against the wrong person.

Mason, on the same side, was stopped by the court, who said they were satisfied with the argument on the part of the defendant, upon the first point, and wished to hear the counsel in reply. Mr. Martin observed, that he did not suppose that any thing he had to offer would shake the opinion which the court seemed to have formed, and should not insist upon replying.