¶1 — after stating the case: The demurrer was properly sustained to the defendant’s counter-claim, and that for the reason stated, that it arose out of transactions occurring after the institution of the action, as appears upon its face. The refusal to allow an amendment, which, as defendant insisted, would connect it with the plaintiff’s cause of *241 action, was unreviewable exercise of a discretionary power vested in the Judge. The responses of the jury to the issues submitted to them, without objection, cover the entire ground of controversy.
¶2 The writings which, as exhibit “A,” are annexed to the case, were not offered in evidence during the trial, nor were any instructions asked for by the appellant until the jury-,, after hearing the charge, had retired, and at this stage of the trial these papers were offered to be heard and the presiding Judge declined to receive them. In this there is no error.
¶3 The pleadings and the evidence show no personal contract to have been entered into by the appellant to bind himself to pay for the professional services desired, but he represented himself as authorized by Davis, who had the benefit, of them, to employ the plaintiff, and throughout he professed to act as agent only. The defendant does not become individually liable because his authority to bind his principal is. disowned by the latter, unless the consideration is received by the agent, out of which arises an implied promise to pay. Potts v. Lazarus, 2 C. L. Rep., 83 (180); Delvies v. Canthorne, 2 Dev., 90. In such case the agent may become personally answerable upon the contract, but otherwise the action must be for damages for his false assumption of authority to act.
¶4 The present action proceeds upon the idea that, if the principal be not bound, the agent is, for the services rendered ; or, in other words, if the contract does not bind the one, it binds the other. The result in damages may be the-same, but the liability does not rest upon any such foundation, for the obvious reason that no such personal contract is formed. No objection is made on this score, and we let the judgment stand, as no exception is taken, but with the explanation made above. There is no error, and the judgment is affirmed.
¶5 Affirmed.