Page images
PDF
EPUB

194

CHAPTER VI.

THE LIABILITY OF A SERVANT TO THIRD PERSONS
FOR ACTS DONE ON BEHALF OF HIS MASTER.

In cases of Contract. 194
In cases of Tort-Cri.
minaliter

In cases of Tort-Ci-
viliter

213

. 209

Servant not generally

able upon Contracts

IN CASES OF CONTRACT.

GENERALLY speaking, a servant, who having authority to do so, enters into a contract in his master's name, is not himself personally liable upon such contract (a), entered into though he may undoubtedly, like any other agent, contract in such a manner as to make himself personally liable (b).

in his mas

cr's name.

But may be liable.

In order to make a servant liable personally on a contract made in his master's name, there must be some wrong or omission of right on the part of the servant (c). Thus, if he do not possess authority from his master to contract in his name, or, which is in effect the same thing, if he exceed the authority given him, and fraudulently misrepresent his authority, there can be no doubt that he will be personally liable to the person with whom he deals in his master's name. If, however, the person

(a) Paley on Ag. 368;
Story on Ag. 261; Ex
parte Hartopp, 12 Ves. 352;
Owen v. Gooch, 2 Esp. 567.
(b) Per Ashurst, J., in
Macbeath v. Haldimand, 1 T.

R. 181; per Bayley, J., in
Thomson v. Davenport, 9 B.
& C. 88, and in Burrell v.
Jones, 3 B. & Ald. 50.

(c) Smout v. Ilberry, 10 M. & W. 1.

dealing with him knows of his want of authority, and yet chooses to charge the master, it would seem that the servant could not afterwards be made liable in the event of the master failing to pay (c). Questions of this sort frequently resolve themselves into mere questions of credit. To whom was the credit given? The answer to which must depend upon the circumstances of the case. If the credit was given to the master, the servant could not be made liable, provided he had authority to contract. But if the credit was given to the servant, even for goods supplied for his master's use, he could not discharge himself from liability on the ground that he was a mere agent. A servant would also be liable if, at the time he entered into a contract, he did not disclose his master's name, and it was not known to the party contracting with him, although he was known to be a mere agent (d).

revoked

But where a servant has once had authority to con- Servant not tract in his master's name, and the authority is revoked liable it his without his knowledge, he would not be liable upon authority contracts entered into in his master's name, in ignorance without his of the revocation of his authority. If, for instance, a knowledire. man leaves a housekeeper in possession of his house, and goes abroad and dies, the housekeeper would not be liable to pay for goods obtained on her master's credit after his death, and before she knew of his death, pro- Death of vided they were of a description which she was autho- master. rized by her master to pledge his credit for during his life (e): although in such case her master's representatives would not be liable, as her authority to pledge his credit was in fact revoked by his death (ƒ).

Where clerks or other servants enter into written Howser n' contracts on behalf of their employers, they should be can avoid personal careful to do so in such a manner as to exclude the pos- liability sibility of their being personally liable themselves upon upon consuch contract, in the event of their employer failing to tracts en perform the engagements thus entered into. For if on behal of such a contract purport on the face of it to bind the his master. clerk, or party signing it, himself personally, it is not

(c) Paterson v. Gandasequi, 15 East, 62; S. C. 2 Smith's L. C. 198.

(d) So in the case of auctioneers; Hanson v. Rober. deuu, Peake, 163; Franklyn

v. Lamond, 4 C. B. 637.
(e) Smout v. Ilberry, 10 M.
& W. 1.

(f) Blades v. Free, 9 B. &
C. 167.

tered into

Clerks held hable on

bills drawn for the ir masters.

Thomas v.
Bishop.

competent for him to discharge himself from liability by evidence that he was acting merely in a ministerial capacity, as agent for his employer (g). To exempt himself from personal responsibility, a clerk should either sign his employer's name, or, if he sign his own, should expressly state his ministerial character, as by using the words "per procuration," or other words of a similar import.

The necessity of the above caution is exemplified by the following cases, in which clerks have been held personally liable upon bills of exchange accepted or drawn for the benefit of their employers.

Thus, where (h) the defendant accepted generally a bill of exchange directed to him by the name of "II. B., cashier of the York Buildings Company," he was held personally liable for the amount of the bill to an indorsee, although he proved that the letter of advice was addressed to the company, and that the bill being brought to their house he was ordered to accept it, which he did in the same manner that he had accepted other bills. For the bill, on the face of it, imported to be drawn on the defendant, and it was accepted by him generally, and not as servant to the company, to whose account he had no right to charge it till actual payment by himself.

(g) Higgins v. Senior, 8 M. & W. 834. See 2 Smith's L. C. 225; and see ibid, that the master himself may be liable if he were the real principal. But if the written contract describe the person, who is really only an agent, as principal, the real principal can neither sue nor be sued upon the contract; Humble v. Hunter, 12 Q. B. 310.

(h) Thomas v. Bishop, 2 Str. 955. Sce Healey v. Story, 3 Exc. 3. Mr. Justice Story in his work on Agency, sect. 159, note (3), and sect. 269, note (1), seems to doubt the authority of Thomas v. Bishop, in the latter note, and quotes an American case to

shew that such notes as that
in Thomas v. Bishop are, in
America, regarded as drawn
upon the drawee in his official
capacity. But in the case he
quotes, the acceptance was
"as agent." And it would
seem that the mode in which
the bill in Thomas v. Bishop
was addressed to the defend-
ant, left it ambiguous whether
the words 46
cashier," &c.,
were mere words of description
or not, and the defendant, by
accepting the bill generally,
shewed that he considered the
bill to be addressed to him
personally, and not in his offi-
cial character. See the obser-
vations of Patteson, J., in
Davis v. Clarke, 6 Q. B.
16.

So where (i) a broker, who was employed to sell goods, Lefevre v. drew a bill for the price on the purchaser, he (the bro- Lloyd. ker) was held liable upon the bill, although it was contended that he merely drew as the servant of the seller; for, having put his name on the bill, all the legal consequences of the act attached to him as much as to any other person whose name was thereon.

the bill

ter.

And in such cases it makes no difference, that a party Although taking the bill does so with full knowledge that a person party taking whose name is on the bill, is a mere servant. Thus, the know clerk agent to a country bank, to whom the plaintiff sent a to be acting sum of money, in order to procure a bill upon London, for his masand who, thereupon, drew a bill in his own name for the Leadhittery. amount upon the firm in London, the two firms being Farrow. the same, was held personally liable as drawer of the bill, although the plaintiff knew that he was agent, and supposed that the bill was drawn by him as such, and on account of the country bank, to which the agent paid over the money (k). And Lord Ellenborough said, "Is it not an universal rule, that a man, who puts his name to a bill of exchange, thereby makes himself personally liable, unless he states, upon the face of the bill, that he subscribes it for another, or by procuration of another, which are words of exclusion? Unless he says plainly I am the mere scribe,' he becomes liable. Now, in the present case, although the plaintiff knew the defendant to be agent to the Durham Bank, he might not know but that he meant to offer his own responsibility. Every person, it is to be presumed, who takes a bill of the drawer, expects that his responsibility is to be pledged to its being accepted. Giving full effect to the circumstance that the plaintiff knew the defendant to be agent, still the defendant is liable, like any other drawer who puts his name to a bill without denoting that he does it in the character of procurator. The defendant has not

done so, and, therefore, has made himself liable."

The rule illustrated by these cases is an inflexible one, Reason. and is by no means confined to bills of exchange, but applies to other written contracts (), and is founded

(i) Lefevre v. Lloyd, 5 Taunt. 749; and see Sowerby v. Butcher, 2 C. & M. 371.

(k) Leadbitter v. Farrow, 5 M. & S. 345; and see per Gibbs, C. J., in Goupy v.

Harden, 7 Taunt. 162

(1) Jones v. Littledale, 6 A.
& E. 486; Magee v. Atkinson,
2 M. & W. 440.
See per
Parke, B., in Higgins
Senior, 8 M. & W. 845.

v.

Cases where it is doubt

ful whether servant

sonally.

upon the principle before adverted to, that parol evidence is not admissible to contradict or vary any contract which has been reduced to writing (m).

Where written contracts are entered into by clerks or other agents, a difficulty frequently arises, from the mode in which they are worded, as to the meaning of the bound per- parties, whether they intended to contract for themselves personally or not. In such cases, the general rule applies, that the construction of written documents is for the Court. And it may be said, that, generally speaking, the onus of proving that a person who has signed a written document, merely acted as agent for some one else in so doing, lies upon the agent who would exempt himself from responsibility (n).

Held liable

Where the defendant covenanted "for himself, his in Appleton heirs, executors, &c., on the part and behalf of" A. B., that A. B. would pay a sum of money, the defendant was held personally liable (0).

v. Binks.

Burrell v. Jones.

Agent held

not liable in Spittle v. Lavender.

Downman

So where the solicitors of the assignees of a bankrupt, upon whose lands a distress had been put by the landlord, gave a written undertaking, thus, "We as solicitors to the assignees undertake to pay," &c., they were held personally liable (p).

But where A., an auctioneer, entered into and signed an agreement as agent of B. and B., shortly afterwards signed it with the words "I hereby sanction this agreement, and approve of A's having signed it on my behalf: it was held, that A. was not personally responsible (q).

And so where A. (an agent) made a promise in the v. Williams. following terms, "I undertake (on behalf of Messrs. E. and Co.) to pay," &c.: it was held to be (upon the face of it) an undertaking as agent, and not to be binding upon A. personally, as there appeared to be no want of authority on his part to make such an undertaking, and no excess of authority in making it (r).

(m) Ante, p. 27.

(n) Smith's Merc. Law,

152.

(0) Appleton v. Binks, 5 East, 148. See Downman v. Williams, 7 Q. B. 111; Norton v. Herron, 1 C. & P. 648.

(p) Burrell v. Jones, 3 B. & Ald. 47; and see Iveson v.

Conington, 1 B. & C. 160; Hall v. Ashurst, 1 C. & M. 714.

(q) Spittle v. Lavender, 2 Brod. & B. 452. See Bowen v. Morris, 2 Taunt. 374.

(r) Downman v. Williams, 7 Q. B. 103. See the American cases cited in Story on Ag. sect. 154.

« EelmineJätka »