¶1Opinion by
¶2The facts out of which this litigation arose are as follows: The dwelling of Daniel Wilson, an aged and infirm man, was forcibly entered by four masked men, who after severely beating him, stole about $3,000, in money. Soon thereafter detectives were engaged, and John A. Wilson, a brother of Daniel Wilson, after an interview with the detectives, consulted with Findley P. Wolff, an attorney at law, and employed him to assist the district attorney in the prosecution of several persons alleged to be guilty.
¶3Daniel Wilson was not physically able to give any personal attention to the preparation of the criminal case, which was largely left to the management of John A. Wilson, who made several' informations against different parties, and after trial two defendants were convicted and sentenced on the charge of burglary. To recover for the services so rendered this suit was brought.
¶4The plaintiff obtained judgment against John A. Wilson and Daniel Wilson, before a justice of the peace, for the sum of $200 and costs. The defendants took an appeal to the court of common pleas ; the plaintiff filed his determination to submit all matters at variance to arbitrators, before whom the *515case was heard, and they awarded in favor of the plaintiff and against John A. "Wilson the sum of $200, and as to Daniel Wilson they awarded that the plaintiff had no cause of action, from which award John A. Wilson alone appealed. The case was tried before a jury which was sworn as to John A. Wilson alone, resulting in a verdict for the defendant, and the plaintiff brings this appeal. The plaintiff’s second point was as follows : “ If John A. Wilson employed F. P. Wolff as attorney for Daniel Wilson, without the authority of Daniel Wilson so to do, John A. Wilson is liable under the pleadings and evidence in this case.” To which the trial judge answered; “ That point is refused. We say to you that if John A. Wilson falsely stated that he was the agent of Daniel Wilson, that Mr. Wolff cannot recover in an action of assumpsit, he would have to bring an action of deceit against Mr. Wilson for falsely representing that he was Daniel Wilson’s agent.” And in the charge to the jury stated : “ If the jury can find any testimony in the case to show that John A. Wilson employed Findley P. Wolff as his attorney to represent him in those cases, why then you would be justified in finding a verdict in favor of the plaintiff for what his services would be reasonably worth. There is only one disputed question and that is, whether John A. Wilson employed Mr. Wolff as his attorney to conduct his cases or not.”
¶5It is elementary law that no person can be sued for breach of contract who has not contracted, either in person or by an agent; or in other words who was not a party to the contract; and conversely, no person who has not contracted, either in person or by an agent, may be sued for a breach. For breach of a civil contract, the person to be sued is the person who has promised, or who has allowed credit to be given him.
¶6The plaintiff’s statement alleges : “ That he was regularly and specially engaged and employed to conduct the preparation and trial of the aforesaid case, by the said John A. Wilson, for and in the behalf of said Daniel Wilson, and that he, the said plaintiff, by virtue of such employment and with the knowledge, approval and authority of the said defendants, and with the help and direction, and mostly in the presence of the said John A. Wilson, did prepare the aforesaid case for trial, conduct the preliminary hearings thereof, and with the aid of *516other counsel, also by the said John A. Wilson employed for and in behalf of the said Daniel Wilson, did conduct and prosecute the trial of the said case to judgment; and that the said Daniel Wilson, with the approval of the said John A. Wilson, has adjudged the services of the said other attorney in said trial, to be worth $200, and has paid that amount to said other attorney, for such services.”
¶7It clearly appears from the record that Daniel Wilson was relieved of liability by the arbitrators, and the award of no cause of action was made, for the sole reason that John A. Wilson was not authorized directly or indirectly to act as his agent, in the employment of Findley P. Wolff as his attorney. On the trial of the case in court, Daniel Wilson, stated without objection, that he had testified before the arbitrators that he had never authorized John A. Wilson to act so for him, and John A. Wilson, this defendant, swore that he had testified to the same effect before the arbitrators.
¶8The liability of an agent contracting without authority, in the name of another, is divided into three classes: 1. Where the agent makes fraudulent representations of his authority, with intent to deceive. 2. Where he has no authority and knows it, but nevertheless makes a contract as if having such authority. 8. Where not having authority in fact, to make a contract as agent, yet does so under bona fide belief that such authority is vested in him, as in the case of an agent acting under a forged power of attorney, which he believes to be genuine, and the like. As a general rule, a contract made by an agent as such and within the scope of his authority, is binding on the principal and not on the agent, and the personal liability is a.questionof intention, and not of inference or conclusion drawn by law, except in the sense in which the law deduces intention from language and holds men to the legitimate result of their words and actions. See Thomson v. Davenport, 2 Smith’s Leading Cases, 377 and notes (8th ed.).
¶9In Kroeger v. Pitcairn, 101 Pa. 311, it was directly ruled, that whenever a party undertakes to act as agent for another, if he does not possess any authority from the principal therefor, or if he exceeds the authority delegated to him, he will be personally liable to the person with whom he is dealing, for or *517on account of his principal: Hopkins v. Everly, 150 Pa. 117.
¶10The court below relied largely on the case of Locke v. Daugherty, 43 Pa. 88, as almost like the case before it. We do not consider that case analogous. Assuming that under the plaintiff’s statement the liability of Daniel Wilson was set out to be essentially different from that of John A. Wilson, if he did not ratify and approve the act of John A. Wilson, in employing an attorney for him, this fact was dependent upon proof adduced as a special defense of Daniel Wilson before the arbitrators, and in regard to which both of the therein defendants testified that John A. Wilson was without authority to bind Daniel Wilson and further that Daniel Wilson had not. ratified or approved the employment of the' plaintiff, so that the liability of John A. Wilson became fixed as a conclusion of law, and of equal force under the authorities as if the contract were a direct one.
¶11The promise on which the suit was founded is not alleged to be a joint one; it is true it grew out of a single transaction of the plaintiff’s, but whether the agent or disclosed principal would be liable depended upon the proof they would furnish, in admitting or denying that relation. After the award in favor of Daniel A. Wilson, he was no longer considered a party to the record. No appeal was taken from the award as to him and the case proceeded to trial by the jury being sworn as to John A. Wilson alone. The statement alleged the employment of the plaintiff by John A. Wilson, for and in behalf of Daniel Wilson, but this was not sustained by proof of authority in John A. Wilson to so bind Daniel Wilson. The merits of the case were resolved, not as stated by the court, whether John A. Wilson employed Mr. Wolff to conduct the criminal cases, but whether, under the admitted facts, John A. Wilson was liable personally, by reason of his acting as an agent without authority.
¶12It has been repeatedly held that in actions upon joint contracts if one defendant be defaulted and the other go to trial on a defense personal to himself, a judgment in his favor does not discharge the defendant. The plaintiff may enter a nolle prosequi against the defendant who pleads matter in his personal discharge, and thus he becomes no longer a party to *518the record: Salmon v. Smith, 1 Saunders, 206; and cases cited in Greenleaf on Evidence, sec. 283. The effect of the judgment depends on the character of the plea.
¶13In a suit against two on a joint contract, ordinarily there can be no recovery against one, because neither is liable if the contract was not the joint contract of both, and it is only when one sets up a defense that the other cannot use that the case is otherwise. If one defendant pleads infancy, or a “certificate in bankruptcy,” “ lie unques executor,” or “ that he was a surety in the contract and that he has been discharged in equity by the conduct of the creditor; ” if he succeeds in maintaining his plea a judgment in his favor does not relieve the defaulted co-defendant, and in such a case there is no contradiction in the record: Swanzey v. Parker, 50 Pa. 441; Weist v. Jacoby, 62 Pa. 110.
¶14So far as the merits of the case were affected, it was tried as if the name of Daniel Wilson had been withdrawn from the record, and an amendment nunc pro tunc could have been filed even after the verdict or in this court: Beringer v. Meanor’s Admr., 85 Pa. 223; Xander v. Commonwealth, 102 Pa. 434. This is not a case of the joint liability of principal and surety on a note, as in Fawcett v. Fell, 77 Pa. 308; Wolf v. Hostetter, 182 Pa. 292; Cochran v. Arnold, 58 Pa. 399. The liability of John A. Wilson, being dependent upon facts not in the knowledge of the plaintiff until adduced on the trial before the arbitrators, and on the trial in court there being no objection made by John A. Wilson to the form of the statement or the proof adduced, there was no independent cause of action, substantially different from the one on which the suit was brought, and of this John A. Wilson had full knowedge through the statement filed: Hackett v. Carnell, 106 Pa. 291.
¶15While all the testimony was submitted to the jury, it was submitted under an erroneous instruction. The plaintiff was entitled to have the jurjr find whether he was employed by John A. Wilson for and in behalf of Daniel Wilson, and there being no dispute at all as to the value of the services rendered, the court should have instructed the jury, that under the proof and admitted facts of the case, the defendant was liable, as an agent ■who had acted without, or in excess of his authority. Moreover, the appellee concedes that the testimony is overwhelming *519that John A. Wilson was not the agent of Daniel Wilson and that he did not act in that capacity, and was not authorized as such.
¶16The judgment is reversed and a venire facias de novo awarded.