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liable as principals on the charter-party, as they appeared on the face of the charter-party to have signed merely as agents. But they were liable, under section 235 of the Contract Act," for having untruly represented themselves to be the authorized agents of the master to enter on his behalf into the contract therein contained. Their liability was limited to the amount which could have been recovered from the master if he had really been their principal. No difference was made in their liability by the fact that the owner was also liable.1
A person who bona fide but without authority pretends to act as agent for another, and makes a contract on his behalf with a third party, impliedly warrants to such third party that he has authority to make the contract.
So where a suit in Chancery was brought by such third party against the supposed principal to enforce a contract made by the alleged agent, and the latter, after notice said he would be held responsible if the suit failed for want of authority to contract, never withdrew the assertion that he was authorized to make the contract, and the bill was dismissed on the ground of such want of authority. It was held, that the third party might in an action
(b) s. 235—A person untruly representing himself to be the authorized agent of another, and thereby inducing a third person to deal with him as such agent, is liable, if his alleged employer does not ratify his acts, to make compensation to the other in respect of any loss or damage which he has incurred by so dealing.
against the agent on the implied warranty of authority recover as damages his costs of the Chancery suit.1
Where a man has signed a contract, he must be taken to be the contracting party, unless on the writing it appears distinctly that he was only acting as an agent.
Thus, where by an agreement stated to be between the defendants, shipowners of Liverpool, and the plaintiff, of London, on behalf of the Geelong and Melbourne Railway Company, it was agreed that a ship of the defendants should load certain goods and proceed to Geelong, in the colony of Victoria, and there deliver the goods. The plaintiff signed the agreement in his own name. It was held, that he was entitled to sue, and liable to be sued, personally, on the contract."
In Lennard v. Robinson by a charter-party between the plaintiff and the defendants, described as of London, merchants, it was agreed that the plaintiff's ship should proceed to Torrevieja, and there load a full cargo. At the foot of the charter-party were the words "By authority of and as agents for M. A. II. Schwedersky, of Memel," followed by the signatures of the plaintiff and the defendants:Held, that the defendants were personally liable for a breach of the charter-party.
1 Collen r. Wright, 27 L. J. Q. B. 215.
'Cooke v. Wilson, 26 L. J. C. P. 15; Hough v. Manzanos, L. R. 4 Ex. D 104.
324 L. J. Q. B. 275,
In this case, before the signature to the contract, there was not the slightest intimation that the defendants were not principals. They appeared to be the contracting parties and as such they undertook to load the cargo and do all that was to be done. Coleridge, J. said-"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 principals or agents. The stipulations in the contract seemed to bind the defendants personally. The defendants, described as contracting parties, and the language of the contract is, that the ship shall load from the factors of the said merchants, a full and complete cargo, at merchants' risk and expense, which the said merchants hereby bind themselves to ship.' This is extremely strong to show that the contract was intended to bind them personally."1
And Bramwell, L. J. in Wagstaff v. Anderson," said: "Now without doubt there have been several decisions which have established the principle, that although a person expresses himself in the body of a document to be acting as an agent for another, yet that fact does not prevent him from being
See also Adams v. Hall, 3 Asp. M. L. C. N. S. 497; Paice v. Walker, L. R. 5 Ex. 173; Fairlie v. Fenton, L. R. 5 Ex. 169; Southwell . Bowditch, L. R. 1 C. P. D. 100, 374; Fawkes v. Lamb, 31 L. J. Q. B. 98; Tanner r. Christian, 24 L. J. Q. B. 91.
2 L. R. 5 C. P. D. 171; 49 L. J. C. P. 486.
personally liable upon the document, in cases in which his signature has been fixed absolutely and without qualification."
In ex parte Hartopp,' Lord Erskine, L. C. says:"No rule of law is better ascertained, or stands upon a stronger foundation, than this:-that where an agent names his principal, the principal is responsible, not the agent: but for the application of that rule, the agent must name his principal as the person to be responsible." So where a charter-party purported to be made between Captain W. Parker and G. W. Winlo, agent for E. Winlo and Son, of Devonport, merchants, at the top of the charter-party was printed "G. W. Winlo, broker, Newcastle-onTyne," and the charter was signed by G. W. Winlo,
in his own name.
Lord Campbell, C. J. said in his judgment:-"I have no doubt that the defendant is personally liable on the contract, because he contracts as a party to the agreement, and merely says he is agent for E. Winlo and Son of Devonport." It is clear that a person may be personally liable, on a contract, although he is in reality, and describes himself as agent of a third party, and there is nothing in this charter to rebut the presumption that by contracting as a party to the agreement, the defendant intended to be personally liable on the contract. If he had intended to exclude his own liability he should have signed per procuration, but here he simply signs his
1 12 Ves. 352.
Agent when not personally liable.
He is therefore both on the authorities and on principle, personally liable as a contracting party, although other persons are named for whom he was de facto agent as between him and them.1
When a ship is sub-chartered, the Court generally will not conclude that the master has signed as agent for the sub-charterers, unless he signs in terms as agent for them or gives notice of the sub-charter.
The presumption giving rise to the general rule that agents or factors acting for merchants resident in a foreign country, are held personally liable upon all contracts made by them for their employers, whether they describe themselves in the contract as agent or not, may be rebutted, either by proofs 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. It is a question of fact in each case, a question of intention, to be ascertained by the terms of the particular contract and the surrounding circumstances. But where a written contract is made, and expressed to be with the foreign principal, and not with the agent, the latter is not liable, although the contract be signed by him, "for, and on account of," the foreign principal. So, where the contract is signed
1 Parker v. Winlo, 27 L.J.Q.B. 49; Hough v. Manzanos, L.R. 4 Ex. D. 104. The Emilien Marie, 44 L. J. Ad. 9.
3 Paice v. Walker, L. R. 5 Ex. 173; Armstrong v. Stokes, L. R. 7 Q. B. 598; Elbinger & Co. v. Claye, L. R. 8 Q. B. 313; Hutton v. Bulloch, L. R. 9 Q. B. 572.
Oglesby v. Yglesias, 8 E. B. & E. 930; Pederson v. Lotinga, 28 L. T. 267.