Servant not generally liable upon contracts entered into in his master's name; but may be liable. 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) though he may, undoubtedly, like any other agent, contract in such a manner as to make himself personally liable (b). 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 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 (d). 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 '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 (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 (d) Paterson v. Gandasequi, 15 East, 62; S. C. 2 Smith's L. C. 198. contracting with him, although he was known to be a mere agent (d). authority But where a servant has once had authority to contract in Servant not his master's name, and the authority is revoked without his liable if his knowledge, he would not be liable upon contracts entered into revoked in his master's name, in ignorance of the revocation of his autho- without his knowledge. rity. If, for instance, a 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, provided they Death of were of a description which she was authorized by her master 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 (f). on behalf of When clerks or other servants enter into written contracts How servant on behalf of their employers, they should be careful to do so in can avoid personal such a manner as to exclude the possibility of their being per- liability upon sonally liable themselves upon such contract, in the event of contracts their employer failing to perform the engagements thus entered entered into into. For if such a contract purport on the face of it to bind the his master. clerk, or party signing it, himself personally, it is not 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. drawn for The necessity of the above caution is exemplified by the fol- Clerks held lowing cases, in which clerks have been held personally liable liable on bills upon bills of exchange accepted or drawn for the benefit of their their master. employers: Thus, where (h) the defendant accepted generally a bill of Thomas v. exchange directed to him by the name of "H. B., cashier of the Bishop. (d) So in the case of auctioneers, Hanson v. Roberdeau, 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. (g) Higgins v. Senior, 8 M. & W. 834; see 2 Smith's L. C. 225. And see ib. 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; see Healey v. Story, 3 Exc. 3. Mr. Justice Story, in his work as agent." And it would seem Leferre v. Nicholls v. Mare v. Although party taking 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. So where (i) a broker, who was employed to sell goods, drew a bill for the price on the purchaser, he (the broker) 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. Again, where (k) a bill of exchange was directed to "Mr. James Diamond, purser, West Downs Mining Company," and accepted thus, "James Diamond, accepted per proc. West Downs Mining Company," Diamond was held personally liable upon it, as the legal effect of the acceptance was that he accepted in his own right as principal, and as agent for all the other members of the firm, but as the bill was only directed to him he only was liable. So where (1) a bill of exchange was directed to "Mr. W. C.," and "accepted for the company, W. C., purser," W. C. was held personally liable: and Lord Campbell said, "Thomas v. Bishop, it appears, has been doubted on the other side of the Atlantic, but for a century it has been uniformly considered good law in this country, and it is clearly in point. In Nicholls v. Diamond, the decision itself, and far the greater part of the reasoning in the judgments, are precisely what we now adopt." And in such cases it makes no difference that a party taking the bill, do so with full knowledge that a person whose name is on the bill is a mere servant. Thus, the agent to a country bank, to whom the plaintiff sent a sum of money in order to procure a bill upon London, and who, thereupon, drew a bill in Leadbitter v. his own name for the amount upon the firm in London, the two firms being 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 (m). And Lord Ellenborough said, "Is it not an universal rule that the bill know clerk to be acting for his master. Farrow. sonally, and not in his official (i) Lefevre v. Lloyd, 5 Taunt. (k) Nicholls v. Diamond, 9 Exc. 156. (1) Mare v. Charles, 5 E. & B. 978. See also Penrose v. Martyn, 28 L. J., Q. B. 29, where the secretary to a joint stock company (limited), was held personally liable upon a bill which he accepted as secretary, but omitting the word "limited," under 19 & 20 Vict. c. 47, s. 31. (m) Leadbitter v. Farrow, 5 M. & S. 345; and see per Gibbs, C. J., in Goupy v. Harden, 7 Taunt. 162. 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 be 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, and is Reason. by no means confined to bills of exchange, but applies to other written contracts (n), and is founded upon the principle before adverted to, that parol evidence is not admissible to contradict or vary any contract which has been reduced to writing (0). whether In bound per Where written contracts are entered into by clerks or other Cases where agents a difficulty frequently arises, from the mode in which it is doubtful they are worded, as to the meaning of the parties; whether servant they intended to contract for themselves personally or not. such cases the general rule applies, that the construction of sonally. 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 (p). When the defendant covenanted "for himself, his heirs, Held liable in executors, &c., on the part and behalf of" A. B., that A. B. Appleton v. would pay a sum of money, the defendant was held personally liable (q). Binks. So where the solicitors of the assignees of a bankrupt, upon Burrell v. whose lands a distress had been put by the landlord, gave a Jones. written undertaking, thus, "We, as solicitors to the assignees, undertake to pay," &c., they were held personally liable (r). Christian. Again, where "C., on the part of N," agreed to let certain Tanner v. premises to P. for a term of years, and C. signed the agreement but N. did not, C. was held personally liable to an action for not completing the lease (s). So, where "R. and F., of London, merchants," signed a Lennard v. charter-party "by authority of and as agents for Mr. A. H. S., (n) Jones v. Littledale, 6 A. & E. 486; Magee v. Atkinson, 2 M. & W. 440. See per Lord Wensleydale, in Higgins v. Senior, 8 M. & W. 845. (0) Ante, p. 32. (p) Smith's Merc. Law, 152. (q) Appleton v. Binks, 5 East, 148. See Downman v. Williams, 7 Q. B. 111; Norton v. Herron, 1 C. (r) Burrell v. Jones, 3 B. & (s) Tanner v. Christian, 4 E. & B. 591. Robinson. Agent held Downman v. Lewis v. Ex parte Mahony v. Lucas v. of Memel," R. and F. were held personally liable for a breach of it (t). 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 (u). And, so where A. (an agent) made a promise in the following terms, "I undertake (on behalf of Messrs. E. & 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 (x). So, again, where solicitors to certain assignees, on behalf of the assignees," consented to do certain things, the solicitors were held not to be personally liable (y). 66 And where a banker signed a promissory note, "I promise to pay," &c., "for C. M. P. and S., R. M." it was held that this did not give a separate right of action against the party signing (z). Again, where a contract was made in London, as follows, "Contract between Messrs. V. & T., Morlaix, France, and M. (plaintiff), London. M. engages himself hereby with Messrs. V. & T., Morlaix, from, &c., till, &c., for the proper and merchantable cutting, messing and preparing of French provisions, at Morlaix (as pork, beef and bacon), on receiving a free passage out to Morlaix from London and back again, and wages of 30s. sterling per week. Messrs. V. & T. finding the requisite tools. Should any differences arise on account of M.'s inability or improper conduct, this contract is to be considered null and void, and M. has no claim for further wages nor free passage back to London." And signed, "For V. & T. Charles Kekule" (defendant). The defendant was held not to be personally liable (a). And where the plaintiff and several others, being performers in the orchestra at the opera, Covent Garden, had a claim against the defendant for thirteen nights' salary, and negotiations took place in the green-room of the theatre, the plaintiff acting on behalf of himself and the other performers, and the plaintiff signed the following document, "The gentlemen of the orchestra, &c., are willing and hereby pledge themselves to continue their services and attend their duties provided (t) Lennard v. Robinson, 5 E. (u) Spittle v. Lavender, 2 Brod. (x) Downman v. Williams, 7 Q. B. 103; see the American cases cited in Story on Ag. 154. (y) Lewis v. Nicholson, 18 Q. B. 503. (z) Ex parte Buckley, 14 M. & W. 469. (a) Mahony v. Kekule, 14 C. B. 390; S. C. 23 L. J., C. P. 54; and see Green v. Kopke, 18 C. B. 549, that in all cases it is a question of intention, to be gathered from the terms of the contract; whether the principal be a foreigner or not. |