¶1(dissenting) :
¶2On a demurrer to evidence, the plaintiff recovered a judgment for' $533.00 for services and expenses as a surveyor. The evidence is meager and somewhat indefinite. For .the purposes of the ease, the work for which the charge was made must be regarded as having been done and the value thereof proven, but the liability of the defendant, an agent of the beneficiary of the service, is denied. Plaintiff’s father *485obtained the work for him through the law firm of McGinnis & Hatcher, who told him Miller, the defendant, wanted the work, that it would be paid for, that Miller was the agent, and that there was “a company behind it” with a million dollars worth of real estate, and Mr. Hatcher left the impression on his mind that the company was the Crab Orchard _ Improvement Company. He saw them about the work three times. He never saw Miller about it at all until after a good part of the work had 'been done, for which a bill had been made off against Miller by direction of McGinnis and Hatcher. The young man, the plaintiff, made no contract for the work with anybody. As the bill rendered Miller was not promptly paid, he quit work and called upon Miller about the unpaid bill. Miller said the bill had been mislaid and would be hunted up and soon paid and requested' that the balance of the work be done. His language as given by the witness was ‘‘You will get — I will see that you get your money in a few days. I want you to go right on and finish up the work, and I will see that you are not delayed in getting your money for your nest work.” The bill was soon afterwards paid by the Crab Orchard Company. After the remainder of the work was done, plaintiff and his father sued that company for their bill for services and expenses, but failed to recover for some reason not disclosed.
¶3Miller’s agency was known when the work was taken and he made no contract. The authority of McGinnis and Hatcher to make one for him as his agent is not shown. He never paid the bill made off against him by their direction. It was paid by the company, disclosed as Miller’s principal at the date on which the work was ordered to be done. Payment of that bill by the company was a disclosure of the principal before the last work, that for which recovery has been had here, was done. Miller’s language quoted by the witness expresses no personal promise to pay. If it imposed any obligation it was one of guaranty. Moreover, it impliedly said “You are working for my principal, not for me. ’ ’ There is no evidence that Miller was the beneficiary of the work, so as to raise an implied promise on his part. Nor is there any evidence of lack of authority in him to have the work done.
¶4A finding against Miller’s agency could not properly be *486permitted to stand. Nor could a finding that his principal was not disclosed. It was disclosed to plaintiff’s father at the very inception of the contract and again when the principal paid the bill for the first part of the work. Nor could a jury be permitted to say Miller promised to pay for the work. He never paid the bill rendered in his name.
¶5If a person claiming to be an agent, but having no authority, attempts to make a contract in the name of another, or, having limited authority, attempts to bind his principal by a contract in excess of his powers, he is liable, but not on the contract as his own. He is liable either for fraud and deceit in the false representation that he had authority, or for breach of his warranty that he had, a tort in the former case and a breach of contract in the latter, but he is not liable as upon the contract he attempted to make. Clark & Skyles on Agency, see. 586. If we could' say Miller attempted to make the contract sued on for the Crab Orchard Improvement Company and was not authorized to do so, there could be no recovery against him in this action, for the declaration contains only the common counts. The action being in assumpsit, he could not be charged in it as for a tort, and no common count will sustain a recovery for a breach of warranty. The warranty would have to be set out and the breach and resulting damages alleged. So liability upon this ground may be dismissed as unfounded without further discussion or inquiry.
¶6The instances above given are the only ones in which an agent is liable in any form, except in cases of fraud, upon •contracts made in the name of his principal. But he may be liable, although a duly authorized agent and acting for his principal, upon contracts made in his own name, but, to make him liable in such cases, he must contract in his own name. Take, first, the ease of an agent contracting for an undisclosed principal. “It is a well settled rule, therefore, that where an agent conceals the fact of his agency and enters into a contract in his own name as the ostensible principal, he may be treated as the principal by the party with whom he deals, and may be held liable on the contract to the same extent as if he were in fact the principal in interest. ’ ’ Clark & Skyles Agency, sec. 568. .Note that he must contract in his own name. If he contracts in his own name, disclosing his *487principal, Re is not personally liable, unless the credit was extended to Rim or Re expressly agreed to be liable. Johnson et al v. Welch et al, 42 W. Va. 18. Whether Re has sufficiently disclosed the principal or whether credit was extended to Rim is often a question for the jury, but this is a subsidiary question, not dispensing with the essential premise that the agent must have contracted in his own name. Clark & Skyles Agency, secs. 568, 568a, 568b, 568c. “This rule does not apply, however, unless the agent expressly binds himself, where the party dealing with him has knowledge of the agency or of circumstances which, if inquired into, would have disclosed the principal. ’ ’ Id.sec. 568d. If he contracts in his own name, but discloses the agency and the name of his principal, or facts enabling the party with whom he is dealing to identify the principal, he is not personally liable. But if he goes further and expressly agrees to be personally liable, or he was notified that the credit was extended to him and not the principal, then he is personally liable. In all such cases, however, it is essential that the contract be made in his own name. Of course he may make himself a guarantor of his principal’s obligation, but that .is a different question, and one not here involved, for Miller is not sued as a guarantor. He is sued on the contract itself without a shadow of proof that he ever made it in his own name, and, if he had so made it, the name of his principal was fully disclosed, both in the first instance and subsequently before the work here sued for was done, by the Crab Orchard Company’s payment of the bill for the first part of the work.
¶7Recurring to the evidence, I find nothing in words or conduct from which a jury could infer an unconditional promise on the part of Miller to pay for the work. Neither the plaintiff nor his father had any conversation at all with him' about it until more than half the work had been done. It was actually ordered by McGinnis and Hatcher. There is no evidence that Miller got the benefit of the work. Pacts were disclosed by McGinnis and Hatcher sufficient to enable Curtis to ascertain the name of the principal, if indeed they did not actually give the name. Curtis says he got the impression from them that it was the Crab Orchard Improvement Com*488pany, and that company actually paid the bill for the first part of the work.
¶8In my opinion, there is clearly no right of recovery against Miller, and I, therefore, dissent.