was held to bind the solicitors personally (a). So, an undertaking contained in a letter written by a solicitor in the following terms, "I undertake to pay on behalf of" etc., was held to render the solicitor personally liable (b). But in Downman v. Williams (c), a letter in the terms, "I undertake (on behalf of E. and Co.) to pay etc." was held to import an undertaking as agent only, which did not render the writer personally liable, and the Court said that the above terms seemed in their natural meaning to point rather to a promise made by one person as agent for another than as intended to bind the party speaking in the character of a principal; for, upon the latter supposition, there would appear to be no reason whatever for mentioning the name of the principal. So, a letter by an attorney consenting to certain terms "on behalf of" his clients was held to constitute a contract as agent only and not to create a personal liability (d). promissory It is a general rule, that a person who puts his name to a Bills of exbill of exchange or a promissory note thereby makes him- change and self personally liable, unless he states upon the face of the notes. bill that he subscribes it for another or by procuration of another, or uses some words exclusive of his own personal liability (e). Trustees of a building society who made a promissory note in their own names, though they described themselves in the note as trustees of the society, were held personally liable (f). So, where a joint and several promissory note was made by two persons, described as "directors," and by the defendant as "secretary," of a building society, the defendant was held personally liable (y). Where a bill of exchange was drawn upon the purser of a mining company in his own name and he accepted it in the form "Accepted for the company, A. B. purser," it was held that he was personally liable, though he was not a member of the company; because he had not expressed (a) Burrell v. Jones, 3 B. & Ald. 47. (b) Hall v. Ashurst, 1 C. & M. 714; and see Harper v. Williams, 4 Q. B. 219. (c) 7 Q. B. 103, 109. (d) Lewis v. Nicholson, 18 Q. B. 503; 21 L. J. Q. B. 311. (e) Leadbitter v. Farrow, 5 M. & S. (g) Bottomley v. Fisher, 1 H. & C. Extrinsic evidence of agency not to discharge a party to a written in his acceptance a sufficient disclaimer of personal liability (a). But bills and notes drawn, accepted, or indorsed by a person who on the face of the instrument professes to act by procuration, as by using the term "per proc.," do not bind the agent; they import that he acts under authority, and are binding on the principal, if the authority can be proved (b). Where a bill of exchange was addressed to a mining partnership by its name, and was accepted by the manager in his own name with the addition "per proc. the mining company," and the manager was himself a member of the partnership, he was held to have bound himself as such, though he had no authority to accept for the other partners (c). A promissory note signed by two directors of an incorporated joint stock company and made in the form "we two directors of the society, by and on behalf of the said society, promise to pay," etc., and sealed with the seal of the company, was construed to import to bind the company only and not the parties signing it, who therefore were not liable upon it personally (d). Where an agent contracts in writing, so as to make himself personally liable, he cannot relieve himself from liability admissible by evidence that he contracted as agent for a principal, or even that the other party knew he was acting as agent at the time of contracting, for such evidence would tend to contradict the written agreement (e). So also, a party to a written contract cannot relieve himself from liability to the other party merely by evidence that the other party appearing on the contract was an agent for another (ƒ). contract. A broker making a written contract for the sale of shares in his own name, is personally liable though he may be known. to be a broker; and evidence of a custom of a particular place to send in brokers' notes without disclosing the principals, (a) Mare v. Charles, 5 E. & B. 978; 25 L. J. Q. B. 119. (b) Attwood v. Munnings, 7 B. & C. (c) Owen v. Van Uster, 10C. B. 318; 165; 25 L. J. Ex. 348; and see Lindus v. Melrose, 3 H. & N. 177; 27 L. J. Ex. 326. (e) Magee v. Atkinson, 2 M. & W. 440; Jones v. Littledale, 6 A. & E. 486; Higgins v. Senior, M. & W. 831; and see Wake v. Harrop, cited ante, p. 181. (ƒ) lb. was held inadmissible to relieve the broker from liability (a). So, a broker selling goods and making out the written contract in his own name as seller is personally bound, and cannot discharge himself by showing that the buyer knew he was selling the goods as agent for another (b). A broker upon a sale of goods gave to the buyer an invoice in which he described himself as the seller; it was held that he was conclusively bound by that representation, and that evidence was not admissible to show that he was known at the time of the sale to be selling as agent only (c). Where a broker signed a sale-note purporting that he had bought for a principal, but without naming the principal, it was held that evidence was admissible of a usage of the trade, by which, if a broker did not disclose the name of his principal within a reasonable time, he was himself regarded as the principal, and that under such usage the broker became liable as purchaser (d). ing. Where the contract is not reduced into writing, the ques- Contracts tion whether the agent or the principal is the actual party to not in writ it depends upon the facts and circumstances by which the contract is established. The question can arise only where the other contracting party is acquainted with the name of the principal and has the opportunity of contracting with him directly instead of with the agent; for if the other party has no knowledge of the principal, it must be presumed that he primarily credits the agent, and not the principal (e). Where a British merchant is buying for a foreigner, ac- Contracts cording to the general understanding of merchants, the credit with foreign is considered to be given to the British buyer, and not to principal. the foreigner (f). This is not a rule of law; it is merely a presumption of fact arising from the improbability that the (a) Magee v. Atkinson, 2 M. & W. 440. (b) Higgins v. Senior, 8 M. & W. 834; Reid v. Dreaper, 6 H. & N. 813; 30 L. J. Ex. 268. (e) Jones v. Littledale, 6 A. & E. 486. (d) Humfrey v. Dale, 7 E. & B. 266; E. B. & E. 1001; 26 L. J. Q. B. 137; 27 ib. 390. (e) See Addison v. Gandasequi, 4 Taunt. 574; 2 Smith's L. C. 5th ed. 302. (f) Thompson v. Davenport, 9 B. & C. 78, 87, 88; and see per Parke, B., Heald v. Kenworthy, 10 Ex. 739, 743; per Maule, J., Smyth v. Anderson, 7 C. B. 21, 33. Sales by auction. Contracts with car. riers. Liability of credit should be given to the foreigner, and if the contract is made expressly with the foreigner and not with the agent, the latter is not liable (a). At a sale by auction a person bidding and giving his own name as purchaser is prima facie the contracting party; but if he was bidding as agent for another and known to be so to the auctioneer or to the seller, it may be a question of fact whether the sale was made with the agent or with the principal (b). If the auctioneer sells without at the time of the sale disclosing the name of his principal, he contracts personally, and may sue or be sued in his own name (c). In contracts made with carriers for the carriage of goods, it is often a question whether the consignor or the consignee is the party to the contract and entitled to sue the carrier or liable to be sued by him. In general, the consignor in employing the carrier is merely the agent of the consignee, who is the actual party to the contract, for whose benefit it is made, and for whom the goods are carried (d); but where the contract is expressly made with the consignor only, or on his account and for his benefit only, he is the party to the contract, and the consignee cannot sue or be sued (e). Where the agent is the actual party to the contract, and principal primarily liable to be sued, the principal may also be charged tract made upon it, under certain circumstances, and subject to certain exceptions and conditions. upon con by agent. "It is a general rule, that if a person sells goods, (supposing at the time of the contract he is dealing with a principal), but afterwards discovers that the person with whom he has been dealing is not the principal in the transaction, but agent for a third person, though he may in the meantime have debited the agent with it, he may afterwards re (a) Mahony v. Kekulé, 14 C. B. 390; Green v. Kopke, 18 C. B. 519; 25 L. J. C. P. 297; and see Wilson v. Zulueta, 11 Q. B. 405; 19 L. J. Q. B. 49; Risbourg v. Bruckner, 3 C. B. N. S. 812; 27 L. J. C. P. 90. (b) Williamson v. Barton, 7 H. & N. 899; 31 L. J. Ex. 170. (e) Hanson v. Roberdeau, 1 Peake, 163; Franklyn v. Lamond, 4 C. B. 637; Fisher v. Marsh, 34 L. J. Q. B. 177; see Spittle v. Lavender, 2 B. & B. 452; 5 Moore, 270. (d) Dawes v. Peck, 8 T. R. 330; Dutton v. Solomonson, 3 B. & P. 582 ; Wait v. Baker, Ex. 1, 7; Brown v. Hodgson, 2 Camp. 36. (e) Sargent v. Morris, 3 B. & Ald. 277; Joseph v. Knor, 3 Camp. 320; Swain v. Shepherd, 1 M. & Rob. 223. cover the amount from the real principal; subject, however, to this qualification, that the state of the account between the principal and agent is not altered to the prejudice of the principal" (a). So also, although the seller at the time of the dealing for the goods was informed that the buyer was an agent dealing for another, if he was not informed who the principal was, so as to give him the means of electing between them which he would debit with the price, he may afterwards, upon discovery of the real principal, charge him with the price (b). "On the other hand, if at the time of the sale the seller knows, not only that the person who is nominally dealing with him is not principal but agent, and also knows who the principal really is, and, notwithstanding all that knowledge, chooses to make the agent his debtor, dealing with him and him alone, then, according to the cases of Addison v. Gandasequi (c) and Paterson v. Gandasequi (d), the seller cannot afterwards, on the failure of the agent, turn round and charge the principal, having once made his election at the time when he had the power of choosing between the one and the other" (e). Upon this principle it is held that, if a contract be made by some members of a partnership in a partnership matter, but in their own names, all the members of the partnership may be charged upon it as principals, although the other party to the contract did not know who they were (f). So, where the part owner of a ship instructed a broker to effect an insurance upon the whole of it, which he did and debited that part owner with the amount of the premiums, and the other part owners afterwards had notice of the insurance and assented to it, it was held that the broker might charge all the part owners jointly with the premium, as having jointly authorized the insurance (g). Even where an agreement is made in writing between Contracts two parties, extrinsic evidence is admissible to show that one in writing. (a) Per Lord Tenterden, C.J., Thomson v. Davenport, 9 B. & C. 78, 86. (b) Thomson v. Davenport, supra. c) 4 Taunt. 574. (d) 15 East, 62. (e) Per Lord Tenterden, C.J., Thomson v. Davenport, 9 B. & C. 78, (f) Beckham v. Drake, 9 M. & W. (g) Robinson v. Gleadow, 2 Bing. N. C. 156. |