ÆäÀÌÁö À̹ÌÁö
PDF
ePub

[171] CHAPTER II.

OF THE EXECUTION OF AUTHORITY BY INSTRUMENT UNDER SEAL.

In executing his authority an agent must take care so to execute it as not to render himself personally liable. It will be convenient to consider the authorities in the following order:

A. Instruments under seal.

B. Instruments other than deeds.

1. Bills of exchange.

2. Promissory notes.

3. Charter-parties not under seal.

4. Bought and sold notes.

C. In other cases.

First as to deeds. A duly authorized agent may so execute a deed that

(a) It will bind the principal, and not himself; or
(b) It will bind himself, and not the principal; or
(c) It will be void.

A deed will bind the principal if executed in his name and on his behalf, and this fact appears on the face of the instrument.1 As to the signature, sealing, and delivering, a rule has been laid down in an early case for the guidance of the agent. If A. B. duly authorize C. D. to execute a deed for him, C. D. may do this either by writing "A. B. by C. D., his attorney," or by writing " C. D., for A. B.," provided he delivers the instrument as the deed of A. B.2

[172] If an agent makes himself a contracting party he will be liable on the deed, although he may profess in the

1. In order to bind the principal by an instrument under seal, the instrument must purport to be made and sealed in the name of the principal. Echols v. Cheney, 28 Cal. 157; Lutz v. Linthicum, 8 Pet. 165; Stinchfield v. Little, 1 Greenl. 231; Stone v.

Wood, 7 Cow. 452; Fullam v. West
Brookfield, 9 Allen 1; Townsend v.
Corning, 23 Wend. 435; Briggs ▼.
Partridge, 64 N. Y. (anno. reprint)
358.

2. Wilks v. Back, 2 East, 142.

The

instrument to contract on behalf of a third party.3 main question to be decided in all these cases is this: Do the terms of the instrument disclose a personal undertaking or not?

CHAPTER III. [176]

OF THE EXECUTION OF PAROL CONTRACTS.

SECT. 1. The drawing and accepting Bills of Exchange.

[177] It is assumed in this and the following summaries, that the agent has full authority to contract on behalf of his principal.

(a) If a bill is addressed to a principal and accepted by his agent on behalf of that principal, the principal and not the agent will be liable as acceptor.1

(b) If the bill is drawn upon an agent in a personal character, he will be liable as acceptor, although he accepts for or on behalf of his principal.2

3. Where the deed purports to be made by the agent and to be sealed by him, and not to be made and sealed by his principal, the agent will be personally liable, and the description of himself as agent will not exclude his personal responsibility. Lutz v. Linthicum, 8 Pet. 165; Stinchfield v. Little, 1 Greenl. 231; Fullam v. West Brookfield, 9 Allen, 1; Duvall v. Craig, 2 Wheat. 45; White v. Skinner, 13 John. 307; Tippets v. Walker, 4 Mass. 595; Quigley v. De Hass, 82 Penn. St. 267; Kiested v. Orange & A. R. R. Co., 69 N. Y. (anno. reprint) 343.

1. Halford v. The Cameron, &c. Co., 16 Q. B. 442.

Judge Story in his valuable work on Agency (§ 155) says: "If, from the nature and terms of the instrument, it clearly appears not only that

the party is an agent, but that he means to bind his principal, and to act for him, and not to draw, accept, or indorse the bill on his own account, that construction will be adopted, however inartificial may be the language, in furtherance of the actual intention of the instrument. But if the terms of the instrument are not thus explicit, although it may appear that the party is an agent, he will be deemed to have contracted in his personal capacity;" and the general rule does not seem susceptible of more accurate and definite statement. See Stackpole v. Arnold, 11 Mass. 29; Mills v. Hunt, 20 Wend. 431. See notes, Evans Agency (Ewell's ed.), 248, et seq.

2. Thomas v. Bishop, 2 Str. 955; Nichols v. Diamond, 9 Ex. 154; Mare v. Charles, 5 E. & B. 978.

This rule seems to be the result of the operation of two other rules, the first being that no one can be liable as acceptor but the person to whom the bill is addressed, unless he is an acceptor for honour; the second, that the words of an instrument must not be construed so as to make it void, if they will reasonably bear an interpretation making it valid.'

3

(c) If a bill is drawn by an agent in his personal character, he will be personally liable as drawer.5

(d) If a bill is drawn upon several, one of whom accepts, he is liable as acceptor." So, if more accept, they are liable." (e) The debt of a third person is a good consideration, for which a man may bind himself by giving a bill of exchange.8

SECT. 2. Promissory Notes.

Summary of Rules.]—(a) Where a person promises and signs in the character of agent he will not be personally liable, nor where the agent uses words importing agency in the signature only, and not in the body of the instrument, will he be held to be a party to the contract.9 Care must be taken to distinguish between words descriptive of the agent's office or employment, and words importing agency. The former have no influence upon the contract, whereas the latter indicate that the agent is no party.1

(b) As a general rule, an agent who makes a note cannot relieve himself of liability unless the fact that he made it as agent appears on the face of the instrument.2

(c) Confusion has sometimes been introduced into arguments owing to a mistaken identification of the principles applicable to bills of exchange with those that are appli

3. Polhill v. Walter, 3 B. & Ald. 164.

4. Mare v. Charles, supra.

5. Leadbitter v. Farrow, 5 M. & S. 345; Newhall v. Dunlay, 14 Me. 180. 6. Owen v. Van Uster, infra. 7. Bult v. Morrell, 12 A. & E. 745. 8. Thomas v. Bishop, 2 Str. 955. 9. Alexander v. Sizer, L. Rep., 4

Ex. 105; Ex parte Buckley, 14 M. &
W. 469, overruling Hall v. Smith, 1
B. & C. 407.

1. See Dutton v. Marsh, L. R., 6 Q. B. 361, and cases infra.

See the cases collected in note, Evans Agency, 177.

2. See Wake v. Harrop, 30 L. J., Ex. 273.

cable to promissory notes. Two distinctions between these instruments should never be lost sight of.

The first is that a bill of exchange incorporates in the acceptance the person on whom the bill is drawn.

The second is that an acceptor cannot limit or vary his liability by addition of words of description.3

If the names of the drawee and acceptor are not the same, the rule that the acceptor and drawee must be identical is not necessarily infringed. Parol evidence may be given to show that the acceptor has authority from the drawee to accept on his behalf. If this evidence is given the bill is valid and binding on the drawee, for he is incorporated in the acceptance. The meaning of the second distinction is clear: an acceptor who is drawn upon personally cannot exempt himself from liability by accepting on behalf of another person to whom the bill is not addressed.

SECT. 3. Bought and Sold Notes.

Summary of Rules.]-(a) The material question is, What is the intention expressed in the contract? Whether an alleged principal is an Englishman or a foreigner resident abroad is in itself immaterial.5 This must be taken subject

3. An acceptance, signed "J. T., administrator," binds J. T. personally. Tasey v. Church, 4 W. & S. 346.

So a note in the form, "I. T. F., guardian of E. S., promise," etc., signed "T. F., guardian," binds T. F. personally. Forster v. Fuller, 6 Mass. 58.

An indorsement of a promissory note thus, "L. R., receiver," binds L. R. personally. Towne v. Rice, 122 Mass. 67.

4. Lindus v. Bradwell, 5 C. B. 583. 5. Mahoney v. Kekule, 14 C. B. 390; Green v. Kopke, 18 ibid. 549.

The rule upon this subject is laid down by Judge Story, that "agents or factors acting for merchants resident in a foreign country are held per

sonally liable upon all contracts made by them for their employers; and this without any distinction, whether they describe themselves in the contract as agents or not. In such cases, the ordinary presumption is, that credit is given to the agents or factors; and not only, that credit is given to the agents or factors, but that it is exclusively given to them, to the exoneration of their employ ers. Still, however, this presumption is liable to be rebutted, either by proof that credit was given to both principal and agent, or to the principal only; or that the usage of trade does not extend to the particular case." See Story on Agency, § 238.

The doctrine thus broadly stated

to what is said upon the question whether an agent has implied authority to pledge his foreign principal's credit.

[194] (b) If the contract is signed without the use of any words importing agency, the person so signing is by virtue of the contract both entitled and liable, unless in the body of the contract a contrary intention is clearly shown.

(c) An agent, then, may free himself from personal liability either by signing as agent,' or by using in the body of the contract words importing agency.

SECT. 4. Charter-parties not under Seal.

In a charter-party, as in every contract, if the agent chooses to make himself a contracting party, the other contracting party may either sue the agent who has himself contracted, though on behalf of another, or he may sue the principal who has contracted through his agent. He may do so whether the principal was known at the time or not. This right is independent of any remedy acquired by a stipulation for a lien or otherwise over the goods. This, however, does not prevent an agent from stipulating in the charter-party that his liability shall cease under the contract after a certain time, or upon the happening of a certain event.1

An agent may execute a charter-party in any of the following ways:

See

has, however, been questioned. Kirkpatrick v. Stainer, 22 Wend. 244, 259; Taintor v. Prendergast, 3 Hill, 72; Oelricks v. Ford, 23 How. (U. S.) 49, 64; Bray v. Kettell, 1 AHen, 80; Barry v. Page, 10 Gray, 398, where it is held that a foreign principal may maintain an action in his own name for goods sold by his agent here, although no agency is disclosed at the time of the sale.

6. Per Kelly, C. B., in Paice v. Walker, L. R., 5 Ex. 173.

The agent becomes personally liable only where the principal is not

known, or where there is no responsible principal, or where the agent becomes liable by an undertaking in his own name, or where he exceeds his power. 2 Kent Com. 630, and authorities cited.

7. Fairlie v. Fenton, L. R., 5 Ex. 169.

8. Gadd v. Houghton, supra; and see Sharman v. Brandt, L. R., 6 Q. B. 720.

9. Per Blackburn, J., in Christoffersen v. Hansen, L. R., 7 Q. B. 513.

1. Pederson v. Lotinga, cited L. R., 7 Q. B. 510.

« ÀÌÀü°è¼Ó »