The principle which has been so fully illustrated by the defendant’s counsel is doubtless a correct one, and is well established by the authorities cited. But whether a deed be made between parties, and who the parties are, must depend on a proper construction of the deed; and when we have once ascertained who the parties are, it follows that a stranger cannot sue on a covenant contained in it, though made for his benefit. The United States cannot be considered as strangers to this deed, because they are formally, as well as substantially, made parties to it; formally, since it is made by the defendants of the one part, and a public officer, a special agent for the United States, of the other part; substantially, because it relates altogether to the carrying on of a public work, in which the agent as an individual cannot possibly have a personal interest.— Indeed the observations made by the court in the case of Potts v. Lazarus, decided at the present term, apply fully to this case; for if Lazarus was not a party to that deed, the reasons leading to that conclusion must also prove that *89the United States are a party to the deed in question. As to an agent’s liability to be sued, the case of a public agent is stronger than that of a mere private one, because the former is never held liable where it appears that he contracted on the behalf of government; though cases have occurred in which a private agent has been held liable to an action, in consequence of the peculiar and express terms of the contract he has entered into. We are of opinion that the demurrer must be overruled.
United States v. Blount, 5 N.C. 84, 2 Car. L. Rep. 84 (1815)
The United States v. Blount.
This was an action of covenant on a deed, which is in the words and figures following, viz. “ Covenant and agreement made and entered into this 13th day of November, A. D. 1800, by and between John Wallace of Shell Castle, in the county of Carteret, and John Gray Blount of the town of Washington and county of Beaufort, of the one part, and James Taylor, Surveyor of the port of Beacon Island, and, in this instance, special agent for and on the part of the United States, of the other part, witnesseth, that for and in consideration of the sum of two thousand eight hundred dollars paid by him, the said James Taylor, for the United States, to him, the said John Wallace, the receipt whereof is hereby acknowledged, they, the said John Wallace and John Gray Blount, have sold to him, the said James Taylor, for the United States, eighty thousand bushels of shells for the works *85intended to be erected at Beacon Island; which shells the said James Taylor, or his successor, or any and every person appointed by him or by the United States, may take at any time, or all times, until the same be fully completed, from the following places: Forty thousand bushels, or one half of the quantity now sold, to be taken from the rocks adjacent and contiguous to Beacon Island and Shell Castle, as he may choose, and forty thousand bushels, or the other moiety, to be taken from Shell Island; the quantities taken to be ascertained by the usual mode of measuring shells, or by any other which the said parties may hereafter agree on to facilitate and expedite the delivery.
“ It is further covenanted and agreed upon by and between the said parties, that the said James Taylor may add to, or diminish from the said quantity, to wit, eighty thousand bushels, as he or his successor may hereafter think proper or find convenient; and should he add to the quantity, it is hereby covenanted that he shall have any further or larger quantity at the same prices with those now sold to him, which are three cents for the shells taken from Shell Island, and four cents for the shells taken from the rocks per statute bushel measured as customary: and in the event of his not taking the whole quantity now covenanted for, the said John Wallace and John Gray Blount are hereby bound to repay, him at the rates aforesaid for such quantity so not taken.
“ And the said John Wallace and John Gray Blount further covenant and agree to and with the said James Taylor, that should any let, hindrance, or molestation, prevent him, the said James Taylor, or his successor, or any person acting by or under their authority, or by virtue of this covenant, from taking the quantity or any part thereof from Shell Island, now covenanted for, by reason of any claim made or to be made to the said Island, then and in such case, the said James Taylor or his successor may make up the quantity so deficient in consequence of such hindrance, from the rocks *86adjacent and contiguous to Shell Castle and Beacon Island aforesaid, at the rate of four cents per bushel as aforesaid; and the said John Wallace and John G. Blount bind themselves by these presents to defend any and every action or actions, suit or suits, which may be brought against him or his successor, or any other person acting by or under their authority, or by virtue of this covenant. In witness whereof, the parties aforesaid have hereunto set their hands and affixed their seals, and have interchangeably agreed upon the said covenant.”
And the said United States say that they did not take the whole quantity of shells aforesaid, to wit, eighty thousand bushels; and that in fact, they did only receive five thousand bushels parcel thereof, to wit—2500 bushels from the rocks adjacent to Beacon Island and Shell Castle, and 2500 bushels from Shell Island; and as to the residue, to wit, 75000 bushels, they did refuse to take the same, to wit, on the 10th June, 1802, of which the said Blount then had notice: And that they, the said United States, on the said 10th June, 1802, demanded of the said Blount repayment for the quantity so not taken, which he refused, &c.——Damages £5000.
And the defendant demurs, and shews as the cause of demurrer, that the United States are not a party to the said indenture, and cannot maintain any action thereon, in their own name.
Donnell, in support of the demurrer.
—This action cannot be supported in the name of the United States. The rule is, that where a deed is made inter partes, a stranger shall not take advantege of a covenant made for his benefit. 3 Levintz. 139. Nor where a bond is made to A for the benefit of B, can the latter sue, upon it, or release it, because he is not a party. Levintz. 235. 2 Inst. 673. In Carthew 76, it was held by Lord Holt, that a party to a deed cannot covenant with one who is no party to it; but that one who is no *87party to a deed may covenant with one who is a party, and oblige himself by sealing the deed. The parties in this case are Blount and Wallace on the one side, and Taylor on the other. If the latter as agent of the United States, could communicate to them a power of enforcing this covenant, he could only do it by making them a party by signing and sealing in their name. If a person having a power of attorney to act for another, make a lease in his own name, such lease is void, for it should be made in the name of him who gave the power and commission to act in his behalf. 9 Rep. Combe's case. 2 L. Raymond 1418. If the covenant is badly framed and imperfectly executed, it is the fault of those who framed it; and, as the Chief Justice remarks, in 1 Bos. & Pull. 98, the court can look no further.
Mordecai, for the plaintiffs.
If the United States cannot sue on this covenant, no person can; and the effect will be to give the defendants a large sum without any consideration. Taylor could not maintain the action, for then his private debts might be set off against a just claim of the U. States; nor could he be liable to an action, for it appears manifestly throughout the whole deed, that the defendants did not contract with him on his personal responsibility, but as agent of the United States. This principle seems to be conclusively settled in the cases of Macbeath v. Holdimand 1 Term Rep. 172, Unwin v. Wolseley, Ibid 674, and Hodgton v. Dexter 1 Cranch 345. In the second case it is remarked by Ashurst, J. that whether the contract be by parol or by deed, it makes no difference as to the construction to be put upon it. Whatever may be the effect of a seal between private persons, it cannot be necessary that the seal of the United States should be affixed to every contract made for their benefit, in order to make them parties. Their agents are numerous and dispersed over a great extent of country, but they have but one seal, which is in the care of one officer. The true construction of this covenant is, that *88the benefit of it is to enure to the United States, and the agent having put a seal to it, cannot change the intent of the parties. If B in consideration of his having leased land from A, promise to pay the rent to C, the latter may maintain an action. 3 Bos. & Pull. 149. So if one person make a promise to another for the benefit of a third, that third may maintain an action upon it. 1 Bos. & Pull. 101.
Donnell, in reply.
—It is not necessary for me to prove that the action might have been brought by Taylor; for it does not follow that the United States may sue because he cannot. The benefit of a contract may enure to a party without his having a right to maintain the action, as in the case from 1 Levintz. to which may be added 7 East 148. But if a man covenant under his hand and seal, for the act of another, he shall be personally bound by his covenant, though he describe himself as covenanting in behalf of another. 5 East 148.