Opinion
January Term, 1899.
Exceptions overruled and judgment ordered on verdict for plaintiff, with costs.
The plaintiff sued as assignee of J.R. De Remer Co. to recover stipulated compensation to be paid that firm under a contract for building a dam across the Canadian river in New Mexico. The contract was under seal and was executed by De Remer Co. of the one part, and in the name of Brown and Wells (the defendants), by Edwin H. Kellogg, as their agent, of the other part. Two causes of action are set out in the complaint, the first, to recover as above stated, and the second, for damages caused by an alleged failure of the defendants to carry out fully the terms of the contract obligatory upon them. On the trial, the second cause of action was abandoned. On all the proofs on the first cause of action the trial judge directed a verdict for the plaintiff and ordered that the exceptions of the defendants be heard in the first instance at the Appellate Division. These exceptions relate to two subjects of inquiry: First, as to the liability of the defendants; the contention in that behalf being that they are under no individual liability, but that the attitude in which they stood to the contract and its subject-matter was merely representative, and was so known to and understood by the plaintiff and his assignors. The second contention is that the plaintiff's assignors failed to perform the contract as required by its stipulations; that the work so far as performed was so defective and insufficient in strength that it was carried away and destroyed by the water of the river. Upon the second branch of the defendants' case, they suggest, although it was not made the subject of serious argument before us, that there was something to go to the jury. An examination of the whole case upon the subject convinces us that the evidence on this topic was insufficient to require a jury to pass upon it. There was no proof that the dam was badly constructed or that the material of which it was built was unsuitable for the structure. The work consisted of a pile and loose rock dam, about eight feet above the bed of the river with a dyke ten feet high connecting the same with a small bluff. When the work was finished, the engineer's certificate of approval was made and given. The dam subsequently gave way. There is no evidence to show that it was from inherent weakness or from improper construction, nor anything that would falsify the engineer's certificate. There is evidence to show that the destruction was caused by a storm or cloud burst, which caused the waters of the river to rise a great many feet over the top of the dam. After the water had subsided, logs were found lodged in trees twelve feet above the ordinary surface of the stream, and great boulders had been moved considerable distances below the face of the dam. Had the evidence upon this subject been submitted to the jury on the issue of non-performance and a verdict been found against the plaintiff, it would have been the duty of the judge at once to set it aside. Therefore he was right in not submitting it. On the subject of the liability of the defendants under the contract, the defendants' argument is based upon matters extrinsic to the instrument itself. Much correspondence and detail of negotiations preceding the execution of the written instrument has been resorted to in the effort to show that, although the defendants by a contract under seal bound themselves to the plaintiff's assignors, yet there was no enforcible obligation assumed. The defendants claimed on the trial, and now claim, that they were merely acting as agents; but that position is unavailable to them. By the terms of the contract they assumed a personal liability. They admit the making of the contract; there is no question on the pleadings of the authority of Kellogg to execute it. The 2d paragraph of their amended answer is as follows: "Admit the making of the contract set forth in paragraph two of said complaint, but deny that the same was made and executed by these defendants, or any one acting for them as individuals and in their own behalf, and allege that said contract was made and executed for these defendants acting solely as agents and attorneys for the New Mexico Land and Irrigation Company, a corporation of the State of New Jersey, as will appear from said contract, all of which was then and there well known to plaintiff and his copartner Nichols." That paragraph contains an admission that the contract set forth in the complaint was made. There is a denial that it was made and executed by the defendants, or by any one acting for them as individuals or in their own behalf, but that is coupled with the allegation that the contract was made and executed for the defendants acting solely as agents and attorneys for the particular corporation therein mentioned, and they appeal to the contract itself as showing the truth of that allegation. Upon this state of the answer, all that was necessary for the plaintiff to do was to introduce the contract in evidence. That was done, and its provisions clearly show that the defendants were assuming the personal obligation of contracting parties with the firm of De Remer Co. They bound themselves personally to make the payments. Whether the contract was eventually for the benefit of the unnamed company referred to in it could make no difference in the enforcement of an obligation assumed by a contract under seal, even if that obligation were to pay for work to be done for the third party. "The New Mexico Land and Irrigation Company, a corporation of the State of New Jersey," is not mentioned in the contract, nor is there in the proofs anything outside of the contract which could bring legitimately that corporation in as a party to it. In the original answer interposed in the case (and which forms part of the record before us) the allegation of the 2d paragraph is the same as the 2d paragraph of the amended answer, with the exception that it is there alleged that the defendants were acting as agents and attorneys for the "Bell Ranch Land and Irrigation Company, a corporation of the Territory of New Mexico." All that is to be inferred respecting any other party than the plaintiff's assignors and the defendants being interested, is from the use of the word "Company" in that part of the contract which relates to performance and the penalty for non-performance. Neither the corporation mentioned in the original answer nor that mentioned in the amended answer could have maintained an action on the contract against the plaintiff's assignors. They were not in privity in any way. The obligations of the contract were assumed by the defendants, not by the corporations. It is perfectly clear that the defendants intended to and did assume all its obligations, and there was no corporation in existence that could assume them when the contract was made. The defendants have sought to show that Kellogg was given authority only to make for them a contract in accordance with particular plans orally agreed upon between them and him, but they can derive no benefit from that claim, for the reason again, that they by their answer have admitted the making of this contract, and have only claimed that which it was incumbent upon them to show, if peradventure they might do so, that they were not bound as individuals to that very contract. There is no proof to change the legal obligations they assumed to the plaintiff's assignors under that contract. The disposition made of the case by the court below was right, and the exceptions must be overruled and judgment directed for the plaintiff on the verdict, with costs. Van Brunt, P.J., Barrett, Rumsey and O'Brien, JJ., concurred.