AND AGENT. 66 PRINCIPAL from liability. The law is thus laid down by Parke, B. :— The plea simply states that after the contract was entered into between the plaintiffs and a third party, the agent of the defendant, under circumstances which rendered the defendant liable upon it, the latter paid the agent. I am of opinion that this is no defence to the action. There are no doubt cases and dicta which unless they be understood with some qualification, afford ground for the position taken by the counsel for the defendant" (sc., that the mere fact of payment to the agent discharged the principal). But "there is no case where the plaintiff has been precluded from recovering, unless he has in some way contributed either to deceive the defendant, or to induce him to alter his position" (d). It is, in short, necessary in order to exempt the principal from being sued, that something must occur to make it unjust to call upon him for payment: as, for instance, where the seller tells the principal that he will look to the agent for payment, and the principal in consequence pays the agent (e). The same principle applies to the right to sue the agent. Thus, as has been already pointed out, a person who under a mistake pays money to an agent for a principal, cannot recover it back from the former after he has paid it over to his employer, since it would be unjust then to sue the agent. RULE 54. contracts RULE 54. An agent who, without having Agent who authority, enters into a contract on behalf of a principal, cannot himself be sued on the contract ; but is otherwise liable. without authority cannot be sued on the contract. Where a person, though without authority, enters into a contract professedly as agent for another person, he (d) Heald v. Kenworthy, 10 Exch. 745, 746, judgment of Parke, B. (e) Ibid., 744, per Parke, B. AND AGENT. cannot be sued for a breach of the contract. "I think," PRINCIPAL says Lord Campbell, C. J., " that where it clearly and expressly appears that a person really acting as agent, fairly contracts as such agent in the name of his principal, and professes to make that principal liable, the agent is not liable to be sued upon the contract. He may be sued so as to make him liable in damages for the loss sustained by the person with whom he has entered into the contract. But to say that he is personally liable upon a contract which he really makes as agent, would be to make a contract instead of construing that which the parties themselves have made" (ƒ). Though the agent cannot be sued upon the contract, he may be sued so as to make him liable in damages. If he has fraudulently represented himself to have authority he is liable to an action for false representation (g), and whether his representation be fraudulent or not, he can be sued for a breach of the implied contract that he had authority to contract (h); for "a person who induces another to contract with him as the agent of a third party by an unqualified assertion of his being authorised to act as such agent, is answerable to the person who so contracts for any damages sustained by reason of the assertion of authority being untrue. This is not the case of a bare mis-statement by a person not bound by any duty to give information. The fact that the professed agent honestly thinks that he has authority affects the moral character of his act; but his moral innocence, so far as the person whom he has induced to contract is concerned, in no way aids such person or alleviates the inconvenience and damage which he sus (f) Lewis v. Nicholson, 21 L. J. 316, Q. B., judgment of Campbell, C. J.; Jenkins v. Hutchinson, 13 Q. B. 744; 18 L. J. 274, Q. B.; Thomson v. Davenport, 2 Smith, L. C., 6th ed., 340-346; Godwin v. Francis, L. R. 5 C. P. 295. (g) Thomson v. Davenport, 2 Smith, L. C., 6th ed., 346. (h) Ibid.; Collen v. Wright, 7 E. & B. 301; 26 L. J. 147, Q. B. ; 8 E. & B. 647; 27 L. J. 215, Q. B. (Ex. Ch.); Randell v. Trimen, 18 C. B. 786; 25 L. J. 307, C. P.; Spedding v. Nevell, L. R. 4 C. P. 212.; Godwin v. Francis, L. R. 5, C. P. 295. AND AGENT. PRINCIPAL tains. The obligation arising in such a case is well expressed by saying that a person, professing to contract as agent for another, impliedly, if not expressly, undertakes to or promises the person who enters into such contract, upon the faith of the professed agent being duly authorised, that the authority which he professes to have does in point of fact exist" (i). Acceptance of bills without authority on behalf of acceptor and others. Exception. authority of agent knowledge. A. fraudulently represents to T. that he has authority to contract for P. with intent to deceive. A., when he has no authority from P. and knows it, nevertheless makes a contract with T. as having such authority. A., though not having in fact any authority to contract as agent of P. with T., yet does so under the bona fide belief that he has authority, e. g., from having received a forged power of attorney. T. can, in the first and second of these cases, sue A. for false representation, and in all of them for a breach of the implied contract, that he has authority to contract as agent of P. (k). It would appear that if one person without authority accepts bills on behalf of himself and others, he is liable in an action on the bill. Hence where A., without authority, accepted a bill for a company or partnership of which he was a member, in the following terms, "A. accepted per proc. P. and C. Mining Company;" it was held that he was personally liable (1). Exception.-Where the authority of an agent has without his knowledge expired at the time of his making the contracts. If an agent has received authority to contract for his has expired principal, and the authority has expired by the death of without his the principal without the knowledge of the agent, and the agent, though his authority has expired, believes himself to have, and contracts as having authority, he is not liable to an action. (i) Collen v. Wright, 8 E. & B. 657, 658, judgment of Willes, J. (k) Thomson v. Davenport, 2 Smith, L. C., 6th ed., 327. (1) Nicholls v. Diamond, 23 L. J. 1, Ex. ; 9 Exch. 154; Owen v. Van Uster, 20 L. J. 61, C. P.; 10 C. B. 318. AND AGENT. A wife, during the absence of her husband abroad, PRINCIPAL contracted as his agent for goods to be supplied for her; it was held that she was not liable for the price of goods supplied after his death, and before information of it reached her (m). "All the cases in which the agent has been held personally responsible will be found to arrange themselves under one or other of these three classes. . . . It will be found that he has either been guilty of some fraud, has made some statement which he knew to be false, or has stated as true what he did not know to be true, omitting at the same time to give such information to the other contracting party, as would enable him, equally with himself to judge of the authority under which he proposed to act. Here the agent had in fact full authority to contract, and did contract in the name of the principal. continuance of the life of the principal . . equally within the knowledge of both contracting parties. If then the true principle derivable from the cases, is that there must be some wrong or omission of right on the part of the agent in order to make him personally liable on a contract made in the name of his principal, it will follow that the agent is not responsible in such a case as the present" (n). Though the agent in this case was a married woman, the judgment "is founded on general principles applicable to all agents" (0). . . The was a fact (m) Smout v. Ilbery, 10 M. & W. 1; 12 L. J. 357, Ex. Compare Blades v. Free, 9 B. & C. 167. See Chapter XVI. (n) Smout v. Ilbery, 10 M. & W. 10, 11, per Curiam. (0) Ibid. CHAPTER XIII. PARTNERS. PARTNERS AND UNINCORPORATED COMPANIES. RULE 55.-A firm or unincorporated company RULE 55. cannot be sued in its name as a firm or as a company, but must be sued in the names of the individual partners or members composing the firm or company (a). A firm must be sued in names of members. RULE 56. All part ners by whom contract must be joined in action upon it. RULE 56.-All persons who are partners in a firm, or members of an unincorporated company, at the time when a contract is made by or on behalf of the firm or company, should be joined in an action for the breach of it (b). Where partners contract jointly, either in their individual names, X., Y., and Z., or in the name of the firm, M. and Co., they must all be sued in an action on the contract. A contract, further, made by one partner on behalf of the firm is generally to be held a contract by the firm; for each partner is, within the scope of the partnership business, an agent for his co-partners, and has authority for and on behalf of all of them to make such (a) For an explanation of this rule, see p. 148, ante. What is there said as to actions by, applies, mutatis mutandis, to actions against, partners. (b) See Rules 13 and 21. |