Opinion
(June Term, 1849.)
1. The clerk of a district court of the United States furnished certain transcripts of record to a collector of the customs, who applied for them officially, and, as he stated, by the direction of one of the auditors of the United States Treasury: Held, that the clerk could not hold the collector personally responsible for his fees, but must look to the United States Government for what was due him.
2. The construction of a written instrument belongs to the court and not to the jury.
APPEAL from the Superior Court of Law of CRAVEN, at Spring Term, 1849, Battle, J., presiding.
James W. Bryan for plaintiff.
(325) No counsel for defendant.
The plaintiff's intestate, Jeremiah Brown, was Clerk (320) of the United States District Court for the district of Pamlico, and the defendant collector of the customs at Washington. On 4 November, 1845, the defendant addressed to the intestate a letter, of which the following is a copy: "SIR. — I have to request that you will furnish this office, as early as you can find it practicable and convenient, a certified list of all custom-house bonds from Washington, N.C. on which judgments in favor of the United States are had in the United States District Court for the district of Pamlico at New Bern. Also, all such as may have been in suit, if any such there be, with the date on which they fell due, the names of the makers and sureties, the amount for which said bonds were originally made, the amount of each payment and date thereof, and the amount still due on principal," etc. This letter is signed, "James K. Hatton, Collector," and addressed, "J. Brown, Esq., Clerk of the U.S. District Court, New Bern, N. Carolina." On 11 November, 1845, the defendant again wrote to the intestate as follows: "SIR. — On the 4th ultimo I requested you to furnish to this office a certified list of all bonds or judgments belonging to this office, stating at the same time that the list furnished by you to T. H. Blount, Esq., late collector, was, according to his statement, incomplete, inasmuch as it did not contain all bonds and judgments in your office belonging to this," etc. This letter then states, "My object was to get a correct list, that I might comply with a request made to me from the First Auditor of the United States Treasury for the same. Your failing to comply with that simple request has greatly disappointed me, and may subject me to some considerable loss." It then makes the request for the list in the same terms as before. The third letter, written on 20 November, 1845, was addressed by the defendant to the intestate, repeating the request for the list, as stated in the preceding ones. These two last are addressed as the (321) first, and signed as that was. These letters were produced in evidence by the plaintiff, who further proved that the intestate, in consequence of the request contained in them, had made out and sent to the defendant copies of the records required. The plaintiff's declaration, which was in assumpsit, contained two counts: the first, upon an account for the copies of the records sent, etc.; the second, for work and labor done.
The defendant insisted that the contract was made with him as an officer and agent of the General Government, and he was not personally answerable.
The presiding judge was of opinion that from the testimony produced by the plaintiff it appeared the credit given by the plaintiff was to the General Government, and that there was nothing to show that the defendant intended to become personally responsible.
In consequence of this opinion the plaintiff submitted to a nonsuit and appealed.
There can be no doubt that a public agent, acting in behalf of the public, may render himself personally liable. The inquiry here is whether the defendant has done so.
The act of Congress, passed in 1791, ch. 128, pointing out the duties of collectors of the customs, is of no further use in this investigation than as it may serve to explain the anxiety, expressed by the defendant, that he might be enabled, through the aid of the intestate, to comply with the (326) request from the Treasury Department. It appears that Mr. T. H. Blount had preceded the defendant in the office of collector of the port of Washington, and in the list furnished him by the intestate were several omissions of bonds and judgments. This list was embodied in his report, we presume, to the office. With a view to supply this deficiency and to ascertain if there were any further omissions, the requisition was made upon the defendant by the department. The plaintiff's intestate, Mr. Brown, is distinctly apprised of these facts, and is informed that nothing is needed but a list of the bonds and judgments, etc., not for the purpose of enabling the defendant to comply with his duty to the public, for the act of 1791 required him only to make a due return of the bonds in his office, and the case shows that the bonds in suit in the district court never had been in his office since his appointment, but had been put in suit by his predecessor. The information sought to be obtained by the defendant was of no personal interest to him, any further than, as a faithful public servant, he was bound to aid the department in ascertaining what was due from its debtors. In all his letters he informs Mr. Brown for whom the information is needed and why. The bonds are described as belonging to the office at Washington, and the letters are signed by the defendant as collector. There is not in any part of the written evidence the slightest proof that the defendant intended to make himself personally responsible, and that responsibility must be explicitly undertaken. Hite v. Goodman, 21 N.C. 365; Gidly v. Palmerston, 2 Bro. and Bing., 275. The plaintiff contends that the records were made out by him, not for the Government, but for the defendant, to enable him to execute his official duty, and relies upon the language used by the defendant, expressive of his fears that he would suffer in consequence of the plaintiff's neglect in complying with his request. We do not so read the letters. The defendant, in each (327) of his communications, appears to guard against any idea that the work was for his benefit. On the contrary, in each application he states it is made to enable him to comply with a request from the department, and that the application is rendered necessary by the plaintiff's intestate's own neglect, as he had been informed, in not making out a perfect list for Mr. Blount. As to his fears of being injured by Mr. Brown's delay, it might arise to him in several ways without embracing the idea that the list was necessary to him. We are of opinion that the work was done at the instance and for the use of the General Government, and to it the plaintiff must look for remuneration, the defendant not having made himself responsible, either by contract or fraud.
The plaintiff further contends that his Honor erred in not leaving the construction of the letters to the jury, as a matter of fact to be found by them. The letters were produced in evidence by the plaintiff to show the defendant's liability, as containing the contract under which the services were rendered. The contract, then, was in writing, and the intention of the parties is to be ascertained from it. This is admitted by the defendant's argument; he does not pretend that, if left to the jury, they could have looked out of the letters. If so, then it was a pure matter of construction to be placed upon a written instrument, containing in itself everything necessary to its being properly understood. We think his Honor committed no error in the instruction he gave the jury — it was a question of law and not of fact. The case now before us is not as strong as that of Dameron v. Irwin, 30 N.C. 421, and the whole defense here is covered by it.
PER CURIAM. Judgment affirmed.
(328)