cannot be presumed to be given except to a party who is capable of being bound by the contract: hence it is material whether the alleged principal is one who might authorize or ratify the contract, but does not, or is one who could not possibly do so.

a. The more frequent case is where the party named as a. Who principal is one who might be responsible.

might be responsi

It is now settled law that, subject to the qualifications ble. which will appear, the pretended agent has not in that case either the rights or the liabilities of a principal on the contract.

agent can

tract.

First, as to his rights. In Bickerton v. Burrell (a) the Professed plaintiff had signed a memorandum of purchase at an not sue on auction as agent for a named principal. Afterwards he the consued in his own name to recover the deposit then paid from the auctioneer, and offered evidence that he was really a principal in the transaction. But he was nonsuited at the trial, and this was upheld by the full Court. It was laid down (per Lord Ellenborough, C. J., Bayley, Abbott, and Holroyd, JJ., concurring) that "where a man assigns himself as agent to a person named, the law will not allow him to shift his position, declaring himself principal and the other a creature of straw A man who has dealt with another as agent (b) is not at liberty to retract that character without notice and to turn round and sue in the character of principal. The plaintiff misled the defendant and was bound to undeceive him before bringing an action." This leaves it doubtful what would have been the precise effect of the plaintiff giving notice of his real position before suing but the modern cases seem to show that it would only have put the defendant to his election to treat the contract as a subsisting contract between himself and the plaintiff or to repudiate it at once. Before we come to these it must be mentioned that there

(a) 5 M. & S. 383.
(b) I.e. for a named and respon-

.

sible principal.

Contra in is a reported case in equity which appears to be directly equity. Fellowes v. opposed to Bickerton v. Burrell. This is Fellowes v. Lord Lord Gwy- Gwydyr (a). The facts were shortly these. Lord Gwydyr dyr: sed was entitled as Deputy Great Chamberlain to the decorations used in Westminster Hall at the coronation of George IV. He sold these to the plaintiff Fellowes, who re-sold them to the defendant Page at an advanced price, but professed to be selling as the agent of Lord Gwydyr, and signed the agreement for sale in that character. Fellowes, being unable to procure Lord Gwydyr's consent to his name being used in an action, sued Page in his own name in equity for a balance due on the agreement. It was argued for the defendant that he had been misled " as to a most important ingredient in the contract, as to the person, namely, with whom he had really contracted" (b). And moreover it is difficult, for other reasons mentioned in the argument (b), to see what equity the plaintiff had except on some notion that there must always be a remedy in equity when there appears to be none at law. However it was held by Sir John Leach, V.-C., and by Lord Lyndhurst on appeal, that Page could not resist the performance of the contract without showing that he had been actually prejudiced by having it concealed from him that Fellowes was the real principal. It is submitted that this decision is contrary to the principles laid down in Bickerton v. Burrell and the other cases to be presently cited; that there is no intelligible reason for any distinction between law and equity on a question of contract or no contract ; and that consequently Fellowes v. Lord Gwydyr cannot now be regarded as law (c).

Rayner v.
Grote.

The doctrine under consideration was further defined in Rayner v. Grote (d). There the plaintiff sued to recover a

(a) 1 Sim. 63, 1 Russ. & M. 83.
(b) Russ, & M. at p. 85, 88.
(c) It may be that the decision
was right on the facts, on the ground
that Page continued to act under
the contract after knowing the true
state of things (as was said in argu-

ment for the plaintiff, 1 Russ. & M. 83), which would bring the case within Rayner v. Grote, 15 M. & W. 359; but this is not mentioned in the judgments.

(d) 15 M. & W. 359.

balance due upon the sale by him to the defendants of a quantity of soda ash according to a bought note in this form:"I have this day bought from you the following goods from J. & T. Johnson-50 tons soda ash,

J. H. Rayner." It was proved that the plaintiff was the real owner of the goods, and 13 tons out of the 50 had been delivered to the defendants and accepted by them at a time when there was strong evidence to show that they knew the plaintiff to be the real principal. The law was stated as follows (a):

"In many such cases [viz. where the contract is wholly unperformed] such as for instance the case of contracts in which the skill or solvency of the person who is named as the principal may reasonably be considered as a material ingredient in the contract, it is clear that the agent cannot then show himself to be the real principal and sue in his own name; and perhaps it may be fairly urged that this, in all executory contracts, if wholly unperformed, or if partly performed without the knowledge of who is the real principal, may be the general rule."

But here part performance had been accepted by the defendants with full knowledge that the plaintiff was the real principal, and it was therefore considered that the plaintiff was entitled to recover.

the pro

sued on the

Next, as to the pretended agent's liability. It was at Nor can one time thought that an agent for a named principal who fessed turned out to have no authority might be sued as a prin- agent be cipal on the contract (b). But it has been determined contract. that he is not liable on the contract itself (c). He is liable Implied however on an implied warranty of his authority to bind of authohis principal. This was decided in Collen v. Wright (d), and has been followed in several later cases (e). The

(a) Per Cur. at p. 365; and see the remarks on Bickerton v. Burrell, ad fin.

(b) Cp. Pothier, Obl. § 75. (c) Lewis v. Nicholson, 18 Q. B. 503, 21 L. J. Q. B. 311.

(d) 7 E. & B. 301, 26 L. J. Q. B. 147; in Ex. Ch. 8 E. & B. 647, 27 L. J. Q. B. 215.

(e) Richardson v. Williamson, L. R. 6 Q. B. 276; Cherry v. Colonial Bank of Australia, L. R. 3 P. C. 24, 31. But the representation of the agent that he has authority must be a representation of matter of fact and not of law: Beattie v. Lord Ebury, L. R. 7 Ch. 777, 7 H. L. 102; Weeks v. Propert, L. R. & C.

warranty

rity.

B. Alleged principal

pretended agent is also generally liable to an action in tort (a). A somewhat similar doctrine of implied warranty has been acted on in the case of the contract to marry. A person who promises marriage also promises or warrants that he is legally capable of marrying, and is therefore not the less liable for a breach of promise though it may be questionable whether the actual promise to marry was not unlawful (b).

B. The rules last stated are applicable only where the who could alleged principal was ascertained and existing at the time the contract was made, and might have been in fact principal.

not be responsible: pro

fessed agent

treated as principal.

Here the doctrine of ratification is important. When a principal is named or described, but is not capable of authorizing the contract so as to be bound by it at the time, there can be no binding ratification: for "ratification must be by an existing person on whose behalf a contract might have been made at the time" (c).

There fall under this head contracts entered into by professed agents on behalf of wholly fictitious persons, or uncertain persons or sets of persons with whom no contract can be made by the description given, persons in existence but incapable of contracting, and lastly (which is in practice the most important case) proposed companies

P. 427, 437. As to the measure of
damages, Simons v. Putchett, 7 E. &
B. 568, 26 L. J. Q. B. 195; Sped-
ding v. Nevell, L. R. 4 C. P. 212;
Godwin v. Francis, L. R. 5 C. P.
295.

(a) Randell v. Trimen, 18 C. B.
786, 25 L. J. C. P. 307. The object
of establishing the liability ex con-
tractu was to have a remedy against
executors.

(b) Millward v. Littlewood, 5 Ex. 775, 20 L. J. Ex. 2; and this seems to be the true ground of the earlier decisions of the Court of C. P. in Wilde v. Harris, 7 C. B. 999, 18 L.

J. C. P. 297. This however is not properly a warranty, for it was treated as a term in the principal contract itself. Cp. chap. VI. below, ad fin.

(c) Per Wille, J. and Byles, J. Kelner v. Baxter, L. R. 2 C. P. 174, 185; Scott v. Lord Ebury, ib. 255, 267. When ratification is admitted the original contract is imputed by a fiction of law to the person ratifying; and the fiction is not allowed to be extended beyond the bounds of possibility. Perhaps there is no solid reason for the rule, but it is an established one.

which have not yet acquired a legal existence (a). Now when a principal is named who might have authorized the contract, there is at the time of the contract a possibility of his being bound by subsequent ratification. But when the alleged principal could not have authorized the contract, then it is plain from the beginning that the contract can have no operation at all unless it binds the professed agent. It is construed accordingly ut res magis valeat quam pereat, and he is held to have contracted in person (b).

This principle has been carried so far that in a case where certain persons, churchwardens and overseers of a parish, covenanted "for themselves and for their successors churchwardens and overseers of the parish," and there was an express proviso that the covenant should not bind the covenantors personally, but was intended to bind the churchwardens and overseers of the parish for the time being as such church wardens, &c., but not otherwise, it was held that since the funds of the parish could not be bound by the instrument in the manner intended, the effect of the proviso was to make no one liable on the covenant at all, and therefore the proviso was repugnant and void, and the covenantors were personally liable (c).

Accordingly the proper course for the other contracting party is to sue the agent as principal on the contract itself, and he need not resort to the doctrine of implied warranty (d). And as the agent can be sued, so it is appre

(a) Kelner v. Baxter, L. R. 2 C. P. 174, and authorities there referred to: Scott v. Lord Ebury, ib. 255; Empress Engineering Co. (C. A.), 16 Ch. D. 125, which overrules Spiller v. Paris Skating Rink Co., 7 Ch. D. 368. Companies have been held in equity to be bound by the agree. ments of their promoters, but on grounds independent of contract. See Lindley, 1. 363, 395.

(b) Kelner v. Baxter, at pp. 183, 185.

(c) Furnival v. Coombes, 5 M. & Gr. 736. But the doctrine of this case will certainly never be extended

(see Williams v. Hathaway, 6 Ch. D. 544); and it may be doubted whether it would apply at all to an instrument not under seal. It is clearly competent to the parties to such an instrument to make its operation as a contract conditional on any event they please and in such a case as this why may they not agree that nobody shall be bound if the principal cannot be? In Kelner v. Baxter oral evidence was offered that such was the intention, but was rejected as contrary to the terms of the writing sued upon.

(d) Kelner v. Baxter, supra.