PART II. Intervention buyer himself deals through an agent, the knowledge of his agent that the apparent seller was a factor selling on account of a principal is equivalent to knowledge of that fact in the buyer (ƒ). The buyer cannot in any case avail himself of any set-off or dealing with the agent which has arisen after receiving notice of the agency (9).—The claim to set off the debt of the agent is not under the statute of set-off, which applies only in the case of mutual debts between the plaintiff and the defendant, but it is allowed by an equitable extension of the statute, upon the ground that the principal claiming the benefit of the contract is identified with his agent; and the set-off is a recognised mode of settling a debt with a creditor (h). The extension of set-off under the mutual credit clause of the Bankruptcy Act, s. 39, does not apply against the claim of the principal (¿). The intervention of the principal to claim the debt operates as a of principal. revocation of the authority of the agent, and discharges the debtor from any further liability at the suit of the agent (k). And where a broker having sold goods in his own name referred the buyer to his principal for the completion of the sale, it was held to be equivalent to a disclosure of the principal at the sale, and the broker could not afterwards by paying the principal, though under a del credere liability to do so, acquire any further right against the buyer (7). But where a broker bought in his own name for an unnamed principal, a repudiation of the contract by the principal with the acquiescence of the broker was held not to determine the contract nor to affect the right of the broker to sue the seller (m). -Payment to the principal, or a set-off of debts by agreement with him, is in general a good answer to the suit of the agent, because the principal by his intervention shows his intention to take the benefit of the contract ("). But where the agent has a lien upon the debt as against his principal, as in the case of a factor for advances, or of an auctioneer for commission and charges, payment or settlement with the principal cannot be made to the prejudice Payment to principal. (f) Dresser v. Norwood, 17 C. B. N. S. 466; 34 L. J. C. P. 48. (g) Moore v. Clementson, 2 Camp. 22; see Semenza V. Brinsley, supra. (h) Carr v. Hinchcliffe, 4 B. & C. 547. (i) Turner v. Thomas, L. R. 6 C. P. 610; 40 L. J. C. P. 271; Ex p. Ray, 7 C. D. 70; 47 L. J. B. 36. (k) Sadler v. Leigh, 4 Camp. 195; Atkinson v. Cotesworth, 3 B. & C. 647. (1) Morris v. Cleasby, 4 M. & S. 566. (m) Short v. Spackman, 2 B. & Ald. 962. (n) Grice v. Kenrick, L. R. 5 Q. B. 340; 39 L. J. Q. B. 175. CH. II. SECT. II. Set-off against of the lien, and would be no discharge against the agent until the lien is satisfied (o).—In an action at the suit of the agent, the debtor could not plead a set-off under the statute of a debt due to him from the principal, because the debts are not mutual (p); but principal. he might plead it as an equitable set-off, if the agent was suing merely as trustee for the principal, as in the above-mentioned cases of a factor and of an auctioneer, as to the balance of claim beyond their lien (q). And the defendant might bring in the principal by a third-party notice for the purpose of claiming indemnity (»). agent on his It may be shown that the party who contracts as agent is him- Principal self the principal, for the purpose of charging him as such, unless acting as another principal is expressly named in the contract; and any own account. limitation or qualification of liability stipulated for as agent, will not apply to his liability as principal. Where a charter-party purports to be made by a person as agent for another, with the express clause that as the charter-party is made on behalf of another, his liability shall cease upon the shipping of the cargo, evidence is admissible to show that he is himself the principal, and in that character not protected by the clause for the cesser of liability (s). And under a like charter-party the party contracting as agent may claim as being himself the principal, provided he can do so consistently with the terms of the contract (†).—But if the contract represents a party to be the agent for a named principal, evidence is not in general admissible to show that he is the real principal in order to entitle him to sue as such, in contradiction to the written. contract (u); at least without notice to the party charged and acquiescence on his part in the change of principal (r). Where an agent had signed a written contract of sale of goods for a named principal, and the buyer accepted a part delivery of the goods from him and paid him for them, knowing that he delivered them as seller on his own account; it was held that he might sue the buyer for not accepting the rest of the goods upon the ground that the (0) Robinson v. Rutter, 4 E. & B. 956; 24 L. J. Q. B. 250; Grice v Kenrick, supra. See Holmes v. Tutton, 5 E. & B. 65; 24 L. J. Q. B. 346. (p) Isberg v. Bowden, 8 Ex. 852; 22 L. J. Ex. 322; Atwool v. Atwool, 1 E. & B. 1; 22 L. J. Q. B. 287. (7) See supra, note (o); see Thornton Maynard, L. R. 10 C. P. 695; 44 L. J. C. P. 382. V. (r) Order XVI. r. 48; see Ex p. (t) Schmalz v. Avery, 16 Q. B. 655; (u) Bickerton v. Burrell, 5 M. & S. 383; see Redpath v. Wigg, L. R. 1 Ex. 335; 35 L. J. Ex. 211. (x) Rayner v. Grote, 15 M. & W. 359; 16 L. J. Ex. 79. PART II. Agent dealing with his own principal. Contracting as agent without authority. Warranty of authority. PRINCIPAL AND AGENT. buyer had adopted him as the contracting party (y). And where a party contracts expressly as principal, evidence is not admissible to contradict that character in order to entitle another person to sue (~). An agent employed to sell cannot himself become the buyer, nor can an agent employed to buy become himself the seller, without distinct notice to the principal, so that the latter may object if he thinks proper (a). Thus a broker instructed to buy stock and selling his own is liable to refund the difference between the contract and the market prices (b). An agent to buy shares cannot buy them on his own account and sell them to his principal at an advanced price; and would be compelled to account to his principal for the difference (c). A broker, having commissions to buy goods, cannot buy in on his own account and resell to his principals as if he had bought for them severally; nor is such course of dealing authorised by the usage of a market, of which the principal has no notice (d). A person contracting professedly as agent for another, but without the authority he professes to have, cannot on that account merely, though he knew that he had not authority, be charged personally with the contract (e). And the contract does not bind the principal, unless he subsequently ratifies the authority (ƒ). "The obligation arising in such a case is well expressed by saying that a person professing to contract as agent for another, impliedly, if not expressly, undertakes to or promises the person who enters into such contract upon the faith of the professed agent being duly authorised, that the authority which he professes to have does in point of fact exist " (g). And the principle extends further than the case of contracts, to any transaction induced by the assertion of authority, which turns out to be untrue to the injury of the person to whom it is made (h). An action may be brought against the 802; 44 L. J. C. P. 362. (e) Lewis v. Nicholson, 18 Q. B. 503; 21 L. J. Q. B. 311; Coventry's case, (1891) 1 Ch. 202; 60 L. J. C. 186. And see Sharman v. Brandt, L. R. 6 Q. B. 720; 40 L. J. Q. B. 312. (f) See ante, p. 336. (g) Per cur. Collen v. Wright, 7 E. & B. 301; 27 L. J. Q. B. 215. (h) Firbank v. Humphreys, 18 Q. B. D. 54; 56 L. J. Q. B. 57; Oliver v. Bank of England, (1902) 1 Ch. 610; 71 L. J.C. 388. agent upon his implied warranty of authority, or upon the false CH. II. SECT. II. But if the party contracting with the agent has notice of his Notice of authority as a matter of fact, and it is merely a question of law authority. how far his authority exists or extends, as in the case of a solicitor or agent of recognised legal character, or in the case of an agent acting under a power of attorney or written authority, the legal effect or construction of which is in question, there is no misrepresentation or warranty (o). So the ordinary powers of the directors of a company are taken to be known to persons contracting with them; and unless they assume an authority depending upon some particular matter of fact, they are not personally liable if the contract fails to bind the company (p). Upon the same principle, an agent is not liable for the revocation of his authority by the death of his principal without his knowledge; for the continuance (i) Ex p. Panmure, 24 C. D. 367; 53 L. J. C. 57; Halbot v. Lens, (1901) 1 Ch. 344; 70 L. J. C. 125; Oliver v. Bank of England, supra. (k) Simons v. Patchett, 7 E. & B. 568 ; 26 L. J. Q. B. 195; Spedding v. Nevell, L. R. 4 C. P. 212; 38 L. J. C. P. 183; Ex p. Panmure, supra; Firbank v. Humphreys, supra; Meek v. Wendt, 21 Q. B. D. 126; see post, p. 770. (1) Hughes v. Graeme, 33 L. J. Q. B. 335; Spedding v. Nerell, L. R. 6 C. P. 212; 38 L. J. C. P. 183; see post, p. 769. (m) Honduras Ry. v. Lefevre, 2 Ex. D. 301; 46 L. J. Ex. 391; Bennetts v. McIlwraith, (1896) 2 Q. B. 464; 65 L. J. Q. B. 632. (n) Weeks v. Propert, L. R. 8 C. P. 427; 42 L. J. C. P. 129; Richardson v. Williamson, L. R. 6 Q. B. 276; 40 L. J. Q. B. 145; Cherry v. Colonial Bank, L. R. 3 P. C. 24; 38 L. J. P. D. 49; Firbank v. Humphreys, 18 Q. B. D. 54; 56 L. J. Q. B. 57. See Elkington v. Hürter, (1892) 2 Q. B. 452; 61 L. J. Q. B. 514. (0) Saffron Walden Bg. Soc. v. Rayner, 14 C. D. 406; 49 L. J. C. 465. (p) Beattie v. Ebury, L. R. 7 H. L. 102; 44 L. J. C. 20; Rashdall v. Ford, L. R. 2 Eq. 750; 35 L. J. C. 769; see Atkins v. Wardle, 58 L. J. Q. B. 379. PART II. of the professed authority under such circumstances depends upon a fact which is equally within the knowledge of both the contracting parties (g). So where a solicitor continued to act in legal proceedings for a company, which had, unknown to him, been dissolved, he was held to be free from liability (»). (a) Per cur. Smout v. Ilbery, 10 M. & W. 11; 12 L. J. Ex. 357. (r) Salton v. New Beeston Co., (1900) 1 Ch. 43; 69 L. J. C. 20. |