bill in his own name, though on account of his principal, becomes personally liable on the note or bill (a). The agent is personally responsible to third persons whenever The agent is he acts without authority or in excess of the authority delegated he acts withresponsible if to him; wherever he makes a fraudulent representation of his out authority. authority with an intention to deceive; where he has no authority and knows it, but nevertheless makes the contract as having such authority; and also where he makes the contract. as agent bond fide, believing that such authority is vested in him, while he has in fact no such authority (b). A person professing to contract as agent for another implicitly, if not expressly, undertakes to the person who enters into such a contract upon the faith of the professed agent being duly authorised, that the authority which he professes to have does in fact exist (c). The remedy, however, against the person who professes to make such a contract, but has no authority, is either by an escrow for the deceit, alleging and proving the scienter or on an implied contract that he had authority, but not by treating him as principal (d). Where an English agent contracts on behalf of a principal When principal resides residing abroad, the agent is prima facie considered to pledge abroad. his own credit. By the universal understanding of merchants and of all persons in trade the credit in such case is considered to be given to the British buyer and not to the foreign. It is, however, in all cases a question of intention capable of being explained by the custom or usage of trade where such can be shown to exist (e). Where the contract is on the face of it with the foreign principal and not with the agent, the presumption of liability of the British agent is at an end; and though in a contract of sale without writing the party making the contract may be personally liable, notwithstanding he mentions it at the time that he is buying for a foreign principal, in the (a) Leadbitter v. Farrou, 5 M. & S. 345; Goupy v. Harden, 7 Taunt. 159; Stackpole v. Arnold, 11 Mass. Am. R. 27. (b) Kennedy v. Gouvera, 3 D. & R 503; Smout v. Ilbery, 10 M. & W. 10; Jones v. Downman, 4 Q. B. 235; Harper v. Williams, 4 Q. B. 219; Wilson v. Zulueta, 14 Q. B. 405. (c) Collen v. Wright, 4 Jur. N. S. VOL I. Liable for omission of duty and for wrongs. Agent converting pro perty to his case of a written contract, the same is to be construed according to the intention of the parties as evidenced by the words they have used having regard also to the surrounding circumstances (a). For any nonfeasances or omissions of duty in the course of his employment the agent is liable to the principal only, but for any misfeasances or acts of direct positive wrong, the agent is liable to third persons as a wrong doer (b). Masters of ships, however, are liable to third persons for neglect of duty. Thus if goods are injured or perish by the neglect of the master and crew, the master as well as the owner are severally liable for it. If any person intrusted with a power of attorney for the sale or transfer of any property, fraudulently sell, or transfer, or own use guilty otherwise convert such property, or any part thereof, to his own use or benefit, he is guilty of a misdemeanor (c). of misde meanor. When agent communicates the name of his buyer he ceases to be liable. Except where he receives a del credere commission. When the agent communicates to his principal the name of the buyer of goods sold on his account, he is not personally answerable to the principal for the fulfilment of the contract or for the payment of the goods, except in case of gross negligence. When, however, the agent charges a del credere commission, he makes himself liable for the loss which his conduct may bring upon the principal without the onus of proving negligence. His liability to pay is not an absolute engagement to the principal so as to make him liable in the first instance, and dispensing the vendor from resorting in the first instance to the vendee but contingent on the event of the agent failing to secure payment by the vendee. Upon non-payment by the vendee the debt falls absolutely on the factor (d). The tribunal FOREIGN LAWS. France. The agent is not bound personally towards third whether a per- parties to whom he has shown his instructions, unless he has will decide (a) Green v. Kopke, 18 C. B. 559; Risbourg v. Bruckner, 3 C. B. N. S. 812. (b) Lane v. Cotton, 12 Mod. 448. holt v. Roberts, 2 Camp. 587; Houghton v. Matthew, 3 B. & P. 485; Morris v. Clasby, 1 M. & S. 576; Leverick v. Meigs, 1 Cowen, Am. R. 664 Hornby v. Lacy, 6 M. & S. 166; Wickham . Wickham, 2 K. & John, 478. assumed a personal responsibility, or the law decides to the contrary. When, however, a person enters into an operation in the character of an agent, it would be for the tribunal to decide according to circumstances, whether there was reason to think that he acted for himself (a). son dealing as agent has in fact acted on his own account. Contract with the agent is a contract with Agent not liable when he does not contract in his own name. United States. Every contract made with an agent in relation to the business of the agency, is a contract with the principal, entered into through the instrumentality of the agent, the principal. provided the agent acts in the name of his principal. The party so dealing with the agent is bound to his principal, and the principal, and not the agent, is bound to the party. Where an agent is duly constituted and names his principal, and contracts in his name, and does not exceed his authority, the principal is responsible and not the agent. The agent becomes personally liable only when the principal is not known, or where there is no responsible principal, or where the agent becomes liable by an undertaking in his own name, or when he exceeds his power. And when the agent becomes personally bound by his own assumption his principal is not liable. If the agent makes the contract in behalf of his principal and discloses his name at the time, he is not personally liable, even though he should take a note for the goods sold payable to himself. But When he disif a person would excuse himself from responsibility on the name of the principal he is ground of agency, he must show that he disclosed his principal at the time of making the contract, and that he acted on his behalf, so as to enable the party with whom he deals to have recourse to the principal in case the agent had authority to bind him. When an agent acts for merchants residing in foreign countries the legal presumption is, that the credit is given to the agent exclusively, yet the Supreme Court of New York held that the agent is not personally responsible when he appeared in the transaction as an agent only, and dealt with the plaintiff in that known character. If the agent buys in his own name, but for the benefit of his principal, and without disclosing his name, the principal is also bound as well as the agent, provided the goods come to his use, or the agent contracted in the business intrusted to him and according to his power. And if the agent binds himself personally, and engages (a) Pardessus, tom. ii. p. 63. closes the If the name of the principal is not dis closed the agent as well as the principal are liable. Distinction between public and private agents. Public agents never liable personally. personally in his own name, he will be held responsible, though he should, in the contract or covenant, give himself the description or character of agent. And though the attorney who acts without authority, but in the name of the principal, be not personally bound by the instrument he executes, if it contains no covenant or promise on his part, yet there is no remedy against him by a special action upon the case, for assuming to act when he had no power. If, however, the authority of the agent be coupled with an interest in the property itself, he may contract and sell in his own name. There is a distinction in the books between public and private agents on the point of personal responsibility. If an agent, on behalf of government, makes a contract, and describes himself as such, he is not personally bound, even though the terms of the contract be such as might, in a case of a private nature, involve him in a personal obligation. The reason of the distinction is, that it is not to be presumed that a public agent meant to bind himself individually for the government, and the party who deals with him in that character is justly supposed to rely upon the good faith and undoubted ability of the government. But the agent in behalf of the public may still bind himself by an express engagement, and the distinction terminates in a question of evidence. The inquiry in all the cases is, to whom was the credit, in all the contemplation of the parties, intended to be given. An agent is liable to third persons for acts of misfeasance and positive wrong, but for mere nonfeasance and negligences in the course of his employment, he is answerable only to his principal, and the principal is answerable over to the third party. Agents and attorneys, using reasonable skill and ordinary diligence in the exercise of their agency, are not responsible for injuries arising from mistakes in a doubtful point of law (a). (a) Kent, Commentary, Vol. iii. pp. 817-826. SECTION VIII. RIGHTS OF THE PRINCIPAL. BRITISH LAW. and his the benefit of to In all cases where the principal is bound for the acts contracts of the agent done under his authority and with consent, or ratification, the principal is equally entitled the advantages and benefits of such acts and contracts as against third persons (a). So in all cases where the agent has contracted in the name of his principal, the principal may adopt the contract and may sue in his name exclusive of the agent. Even where the agent has contracted for an undisclosed principal in his own name, the principal may adopt the contract and sue upon it, but he must adopt it altogether (b). A foreign principal also may sue in his own name to enforce rights acquired by his agent in a course of dealings on his account. Where a contract in writing, under seal, has been executed by the agent in the name of the principal, and the covenants are entered into with the principal and not with the agent, then the principal alone has a right to sue upon it. If, on the other hand, the agent contracted in his own name on behalf of his principal, the agent and not the principal must sue upon it. If the contract is entered into with the principal and the deed is executed by the agent in his own name, neither party could sue upon it. Payment or delivery by the agent is payment or delivery by the principal. Therefore, if the agent pays money of the principal, which the latter would be entitled to recover, as where the consideration fails, where money is paid through mistake, where money has been illegally extorted from the agent, or where the money has been fraudulently applied by the agent, the principal may sue upon it (c). The principal has a right to the benefits of the acts of his agents. When, therefore, an agent derives profit from property (a) Seignior v. Walmer, Godb. 360. (b) Routh v. Thompson, 13 East, 274; Marsh v. Keating, 1 Bing. N. C. 196; Sims v. Bond, 5 B. & Ad. 393; Sims v. Brittain, 4 B. & Ad. 375; Humphrey v. Lucas, 2 Car. & K. 152. (c) Tracy v. Veal, Cro. Jac. 223; Drope v. Thaire, Latch. 126; Duke of Norfolk v. Worsley, 1 Camp. 337; Dalzell v. Mair, 1 Camp. 532; Archer v. The Bank of England, Doug. 637: Stevenson . Mortimer, Cowp. 805. the acts of the agent, and may sue upon the contract. A foreign principal may enforce the agent's contract. When the the name of the principal he alone may sue upon it; vice versa if contract is in the contract was in the name of the agent. |