PRINCIPAL

AND

AGENT.

Exceptions.

Deed executed in agent's own

name.

Bill of exchange drawn in agent's own

name.

cannot be sued; the three last are cases in which either the principal or the agent may be sued.

Exception 1.-Where an agent contracts by deed in his own name (z).

This exception is merely an application of the rule (a) that the person to be sued on a contract by deed is the person with whom the contract is expressed by the deed to be made.

Exception 2.-Where an agent draws, indorses, or accepts a bill of exchange in his own name.

An agent is personally liable " to third persons on his drawing, indorsing, or accepting, unless he either sign his principal's name only, or expressly state in writing his ministerial character, and that he signs only in that character; unless,' to use the words of Lord Ellenborough (b), he states upon the face of the bill that he subscribes it for another; unless he says plainly, I am the mere scribe.' Thus, where the defendant, the agent of a banker, drew the following bill, 'Pay to the order of A. £50 value received, which place to the account of the Durham Bank as advised,' and subscribed his own name, it was held that the defendant was personally answerable (c), and he alone, though the plaintiff, the payee, knew that he was only an agent" (d).

Though "the rule of law, as to simple contracts in writing other than bills and notes, is, that parol evidence is admissible to charge unnamed principals

but is inadmissible for the purpose of discharging the agent who signs, as if he were principal, in his own name, yet it is conceived that the law as to nego

(z) Conf. Rule 17, Exception 1. The remarks there made apply, mutatis mutandis, to actions against an agent.

(a) Rule 48. Appleton v. Binks, 5 East, 148; Berkeley v. Hardy, 5 B. & C. 355; White v. Cuyler, 6 T. R. 176; Wilks v. Back, East, 142;

Leake, Contracts, 290.

(b) Leadbitter v. Farrow, 5 M. & S. 345.

(c) Sowerby v. Butcher, 2 C. & M. 368; 4 Tyr. 320.

(d) Byles on Bills, 8th ed., 33.

AND AGENT.

tiable instruments is different in one respect; to wit, PRINCIPAL that where the principal's name does not appear, he is not liable on a bill or note as a party to the instrument" (e).

Exception 3.-Where credit is given exclusively to the agent.

It is possible that a third party with whom an agent contracts as an agent on behalf of a known principal may be willing to give credit to A., the agent, and not be willing to give it to P., the principal. The party so dealing with the agent cannot afterwards sue the principal. Thus, where T. sells goods to A. for the use of P., who is known to be A.'s principal, but gives credit exclusively to A., he cannot, after having treated A. throughout as the party with whom he contracts, treat P. as the party liable (f); for if the principal be known to the seller at the time when he makes the contract, and he, with a full knowledge of the principal, chooses to debit the agent, he thereby makes his election, and cannot afterwards charge the principal” (g).

Debiting the agent is one proof that credit was given to him exclusively, but this fact may also appear either from the contract itself, or from other circumstances. Where, for instance, an agent in England buys for a foreigner resident abroad, the agent is generally to be considered as pledging his own credit, because it is highly improbable that the seller would have given credit to a foreigner (h). But the question to whom was credit given is in all cases one of intention, to be answered either from the contract, or, where that is doubtful, from the facts (i).

(e) Byles on Bills, 8th ed., 34, 35. See Pentz v. Stanton, 10 Wend. 271; Leadbitter v. Farrow, 5 M. & S. 345; Bult v. Morrell, 12 Ad. & E. 745; 10 L. J. 52, Q. B. Compare Lindus v. Bradwell, 5 C. B. 583; 17 L. J. 121, C. P.

(ƒ) Addison v. Gandasequi, 2 Smith, L. C., 6th ed., 313. (g) Thomson v. Davenport, Ibid., 337, per Littledale, J. (h) Mahoney v. Kekule, 23 L. J. 54, C. P. ; 14 C. B. 390. (i) Thomson v. Davenport, 2 Smith, L. C., 6th ed., 327.

Credit given to

agent exclusively.

PRINCIPAL

AND AGENT.

Contract of persons incapable of contracting.

Agent

treated as an actual

party to contract.

Exception 4.-Where an agent contracts for persons incapable of contracting.

66

If an agent contracts for persons incapable of contracting, the agent is ordinarily held personally liable. Thus, where certain persons, on behalf of a parish in England, made an agreement with the plaintiff to pave the streets of the parish, and to pay him therefor; it was held that the persons so contracting were personally liable, for the parishioners, as such, could not be sued therefor (k). So where an overseer of the poor in England contracted with tradesmen upon account of the poor, and upon his own credit, it was held, that, as soon as he received so much of the poor's money, it became his own debt (1). So where the business of a voluntary eleemosynary society was conducted by a committee, it was held, that they were personally responsible to a baker who supplied the establishment with bread at their request (m); for it might be fairly presumed that he looked to the committee for payment, and not to the subscribers at large" (n). But the presumption is one which can be rebutted; for the person dealing with the agent may have known that he had no authority to bind his principals, (e. g., the members of the society,) and yet have been content todeal with the agent, not upon his personal credit, but upon the chance of being paid by his employers; and in this case the agent is clearly not liable (0).

Exception 5.-Where the contract is made by the agent himself, i. e., where the agent is treated as the actual party by whom the contract is made, or in other words, where the agent, though acting as such, incurs a personal responsibility.

(k) Meriel v. Wymandsold, Hardres, R. 205.

(1) Anon., 12 Mod. R. 559. See Lambert v. Knott, 6 Dowl. & Ryl. 127. Cullen v. Duke of Queenbury, 1 Bro. Ch. R. 101; S. C., 1 Bro. Parl. Cases by Tomlins, 396; Lancaster v. Fricker, 1 Bing. R. 201. See Hoskyns v. Slayton, Cas. Temp. Hard. 376.

(m) Burls v. Smith, 7 Bing. R. 705. See Doubleday v. Muskett, 7 Bing. R. 110.

(n) Story, Agency, s. 285.

(0) Ibid., s. 287.

"A person who is acting for another, and known by him with whom he deals to be so acting, may and will be personally liable if he contracts as a principal, and that whether he contracts by word of mouth or in writing. The difference is, that, if the contract is by word of mouth, it is not possible to say from the agent using the words 'I' and' me,' whereas if the contract is in writing, signed in his own name, and speaking of himself as contracting, the natural meaning of the words is, that he binds himself personally, and, accordingly, he is taken to do so. It is well settled that an agent is responsible, though known by the other party to be an agent, if, by the terms of the contract, he makes himself the contracting party" (p).

If the contract is by word of mouth, it is merely a question of evidence whether the agent intended to make himself a party to the contract. If the contract is in

writing, the question of an agent's liability depends upon points of interpretation. Thus a charter-party is made between A., " agent for P." and T., and signed by A., without any restriction. A. is personally liable (q).

A contract is entered into by A., who appears in the body of it to be the contracting party, but who signs it "by authority of, and as agent for, P., a merchant abroad," A. is personally liable (r); since "many cases have decided that it is not sufficient to free the parties to a contract from personal liability, that they state in the contract that they enter into it as agents for another person; but that the whole instrument is to be looked at in order to see whether the contract is made by them as

(p) Williamson v. Barton, 31 L. R. 174, Ex., judgment of Bramwell, B. See Story, Agency, s. 269; Higgins v. Senior, 8 M. & W. 834; 11 L. J. 199, Ex.; Parker v. Winlo, 7 E. & B. 942; 27 L. J. 49, Q. B.; Lennard v. Robinson, 5 E. & B. 125; 24 L. J. 275, Q. B. Compare Fisher v. Marsh, 34 L. J. 177, Q. B. ; 6 B. & S. 411. If, however, credit is given to the agent exclusively, the case falls within Exception 3. (q) Parker v. Winlo, 7 E. & B. 942; 27 L. J. 49, Q. B. (r) Lennard v. Robinson, 5 E. & B. 125; 24 L. J. 275, Q. B.

PRINCIPAL

AND

AGENT.

AND AGENT.

PRINCIPAL principals or as agents" (s). So, again, à fortiori, where A. contracts in his own name without mentioning his principal, though the fact of his being an agent is known to the other party, A. is personally liable (t). But where a charter-party was signed "for P. of L-, A. as agent," A. was held not personally liable; on the ground that it would require extremely strong words in the body of the contract to control the effect of that form of signature (u), and where A. signed "for P. and Co.,” A. was held not liable (x). The fact, however, that an agent is clearly liable on a written contract, does not free his principal from liability; for, though a person who appears to be liable on the face of a written contract, cannot give evidence to show that he is not liable (since to do this would be to contradict the written contract), there is nothing to prevent the production of evidence that a person who is not liable on the face of a contract, is in reality chargeable under it (y).

Agent

contracts for an

undisclosed principal.

Exception 6.-Where the agent is the only known or ostensible principal, or where a contract (not under seal) has been made by an agent in his own name for an undisclosed (2) principal (a).

A. contracts with T. in reality as an agent for P., but it is not known or stated to T. that A. is contracting as an agent. A. contracts with T., and states himself to be

(s) Lennard v. Robinson, 24 I. J. 277, Q. B., judgment of Coleridge, J. (t) Higgins v. Senior, 8 M. & W. 834; 11 L. J. 199, Ex.; but conf. Wake v. Harrop, 31 L. J. 451, Ex.; 1 H. & C. 202 (Ex. Ch.).

(u) Deslandes v. Gregory, 2 E. & E. 610; 30 L. J. 36, Q. B. (Ex. Ch.) but conf. Reid v. Dreaper, 30 L. J. 268, Ex. ; 6 H. & N. 813; Cooke v. Wilson, 26 L. J. 15, C. P.; 1 C. B., N. S., 153. Wilson v. Zulueta, 19 L. J. 49, Q. B.

(x) Redpath v. Wigg, L. R. 1 Ex. 335 (Ex. Ch.).

(y) Garrett v. Handley, 4 B. & C. 664; Bateman v. Phillips, 16 East, 356 (Ex. Ch.); Paterson v. Gandasequi, 15 East, 62; 2 Smith, L. C. 6th ed. 313; Sowerby v. Butcher, 2 C. & M. 368; 4 Tyr. 320; Lefeuvre v. Lloyd, 5 Taunt. 749; 1 Marsh, 318; Higgins v. Senior, 8 M. & W. 844, 845.

(z) For meaning of "undisclosed" principal, see p. 139, note (s) ante. (a) See Sims v. Bond, 5 B. & Ad. 389; 2 Smith, L. C., 6th ed., 355; Patterson v. Gandasequi, Ibid., 313; Thomson v. Davenport, Ibid., 327.