Where the agency is disclosed, but not the principal's name. The agent's position. his authority to make the contract (c), or if the agent fraudulently misrepresented that he had such authority, in an action of deceit (d). In case (2), where in the memorandum the agent professes to contract as an agent for some person interested as principal, but without disclosing the principal's name, the principal, if he had authorised the contract, may declare himself and enforce the contract; he may also be sued on the contract by the other party, if the other can prove that he authorised the agreement (e). And if when the contract was made the agent was assuming to act, though without authority, for some principal then in existence and capable of being ascertained, such principal may afterwards ratify the contract and sue or be sued thereon. It is thought, however, that if the agent in making the contract had no principal for whom he assumed to act, but entered into the agreement in the hope that he might afterwards find some person willing to adopt it, the agent's act cannot afterwards be ratified by any person as principal (f). The agent's rights and liabilities in the case which we are considering depend on the intention of the parties as expressed in the memorandum of contract (g). And it appears that if the terms of the (c) Collen v. Wright, 8 E. & B. 647; Firbank's Executors v. Humphreys, 18 Q. B. D. 54, 62; Starkey v. Bank of England, 1903, A C. 114; above, p. 755. But the agent is not liable on a warranty of authority where the other party was aware that the agent had no authority to bind the principal, and accepted the agreement for what it was worth subject to the chance of the principal being induced to ratify it; Ialbot v. Lens, 1901, 1 Ch. 344. As to the measure of damages, where the agent is so liable, see Godwin v. Francis, L. R. 5 C. P. 295; Re National Coffee Palace Co., 24 Ch. (d) Polhill v. Walter, 3 B. & Ad. 114; Randell v. Trimen, 18 C. B. 786; see above, pp. 739-742. (e) Thomson v. Davenport, 9 B. & C. 78. (f) Consider Hagedorn v. Oliverson, 2 M. & S. 485; Foster v. Bates, 12 M. & W. 226; Watson v. Swann, 11 C. B. N. S. 756; Lyell v. Kennedy, 14 App. Cas. 437, 456; Keighley v. Durant, 1901, A. C. 240, 251, 254, 255; Boston Fruit Co. v. British, &c. Insce. Co., 1905, 1 K. B. 637. (9) Above, p. 977. memorandum import no more than a statement of the fact, that the agent is the agent of some person not named, he is prima facie liable upon and can enforce the agreement; for it will not be presumed that the other contractor gave credit to the unknown principal exclusively in exoneration of the known agent (). And if on the face of the memorandum the agent be liable, he is not at liberty to prove by parol evidence that the other contractor was aware of the principal's name and gave credit to the principal in exoneration of the agent (i). But if the true construction of the memorandum be that the agent contracts only on behalf of the undisclosed principal and not on his own account, he can neither sue nor be sued on the agreement (k); unless in truth he were acting on his own account and were himself the principal in making the contract. In this event he is at liberty to repudiate his character of agent and adopt the agreement as his own (); and he may be sued thereon by the other party, if the other can prove that he was the real principal (m). If the contract purport to be made on behalf of some undisclosed principal, so as to exclude the agent's liability thereon, and in making the contract the agent were acting without the authority of the person for whom he assumed to act, or without any principal at all, and were not himself the real principal, it appears that he would be liable to the other contractor under the doctrine of implied warranty of authority; for he professed to contract on behalf of some particular principal, although he did not name h) Lennard v. Robinson, 5 E. & B. 125; Hough v. Manzanos, 4 Ex. D. 104, 106; Bowen, J., Irvine v. Watson, 5 Q. B. D. 102, 107; Hutcheson v. Eaton, 13 Q. B. D. 861, 865, 868. (i) Higgins v. Senior, 8 M. & W. 834; Willes, J., Calder v. Dobell, L. R. 6 C. P. 486, 493, 495; see above, p. 698. (k) Southwell v. Bowditch, 1 C. P. D. 374; Gadd v. Houghton, 1 Ex. D. 357. (1) Schmaltz v. Avery, 16 Q. B. 655. (m) Carr v. Jackson, 7 Ex. 382. Where the memorandum neither discloses any principal's name nor the fact of agency. him (). And if in such case the agent both falsely and fraudulently represented that he had the authority of some person unnamed to make the contract, he would be liable in an action of deceit (nn). In case (3), where a person, who afterwards professes or is alleged to be an agent, ostensibly contracted on his own account, and the memorandum contains no reference to any other person as principal or to the fact of the contractor's agency, he is liable upon and can enforce the contract; and he is not at liberty to prove by parol evidence, so as to avoid his liability on the contract, that he was in truth acting as agent for some principal, and that it was agreed that the principal, and not the agent, should undertake the burthen of the contract (0). Nor can the other contractor put in such parol evidence to bar the agent's right to sue upon the contract (p). But if the one contractor did in fact make the contract as agent for some principal who had authorised him to make it, the principal may, as a rule, sue (q) or be sued () on the contract, and the facts necessary to establish his right or liability may be proved by parol evidence. For such evidence does not contradict or alter the written agreement, but merely adds something to it (s). If, however, the terms of the contract were inconsistent with the existence of any undisclosed principal, as where an agent employed to sell land contracts in words, which represent him to be the owner of it, the principal can have no right or liability under the agreeRepresenta- ment (t). And if the principal by words or conduct Contract inconsistent with the existence of an undisclosed principal. tion by the (n) See (nn) Above, p. 980. (0) Above, p. 981, n. (i). (9) Bateman v. Phillips, 15 B. & C. 661. (r) Paterson v. Gandasequi, 15 East, 62. (s) Higgins v. Senior, 8 M. & W. 834, 844; Beckham v. Drake, 9 M. & W. 79, 11 ib. 315, 317; Calder v. Dobell, L. R. 6 C. P. 486; see above, p. 699, n. (s). (t) Humble v. Hunter, 12 Q. B. 310. between the contractor. represented to the other contractor that the agent was principal that the agent is a contracting or was in a position to contract as principal, principal. he is estopped from alleging that the agreement was made by the agent on his behalf (u). Where the con- Contract made tract was made under seal, the principal cannot be sued by deed. thereon; nor can he sue to enforce it (r), except as cestui-que-trust in the agent's name (y). If the un- Principal subject to disclosed principal claim to enforce the contract, he can equities only do so subject to all equities existing between the existing agent and the other contractor (≈); he is therefore agent and liable, if he sue upon the contract, to be met with any the other defence (such as a set-off) which would have been available in an action brought by the agent (a). It has been held, however, that this right of the other contractor, to be placed in the same position as if he were being sued by the agent, depends on his having been induced to believe that the agent was acting on his own account; and if he did not enter into the agreement in the positive belief that the agent was contracting as principal, he cannot set up as a defence to an action, brought by the principal on the contract, any set-off or other claim available against the agent alone (b). Where a contract is made by an agent on behalf and by Alternative the authority of an undisclosed principal, and the agent as well as the principal is liable on the contract (c), their liability is, as a rule, alternative (d); and it is in 589; Expte. Dixon, 4 Ch. D. 133; (b) Cooke v. Eshelby, 12 App. (e) Above, pp. 977, 982. liability of principal or agent. the election of the other contractor, after discovering the principal, to sue either the principal or the agent in respect of the agreement. But election to charge the principal on the contract must be made within a reasonable time after his discovery (e). This election once made is irrevocable (f), but it is not in general finally signified until the one or the other of them has been sued to judgment (g). If, however, the other contractor have by words or conduct induced the principal to believe that he has given credit to the agent exclusively for the performance of the contract, and the principal have acted on this belief by settling with the agent in respect thereof, or otherwise altering his position, the other contractor is estopped from suing the principal on the agreement (h). And if the other contractor sue the principal on the contract, the principal cannot plead in defence that he put the agent in funds or otherwise provided him with the means of performing the contract, unless the other contractor had by words or conduct induced the principal to believe that he had settled with the agent in respect of the agreement (i). Where a man has contracted ostensibly on ostensibly on his own account, not assuming to act as agent for any principal, and had no authority from any principal to make the contract, another person cannot afterwards ratify the agreement as principal, so as to become entitled to enforce or liable to perform it; and some princi- the alleged agent alone can sue or be sued thereon (/). Where one contracts his own account and without authority to contract on behalf of pal, the act cannot be ratified by any person as principal. In every case in which a contractor seeks to enforce (e) Smethurst v. Mitchell, 1 E. (f) Cf. above, pp. 745, 896. (h) Wyatt v. Hertford, 3 East, 147; Horsfall v. Fauntleroy, 10 B. & C. 755; above, p. 983, n. (u). (i) Heald v. Kenworthy, 10 Ex. 739, 745; Irvine v. Watson, 5 Q. B. D. 414; Davison v. Donaldson, 9 Q. B. D. 623. (k) Keighley v. Durant, 1901, A. C. 240. |