other produce of his farm, are sold by his bailiff, the contract is not with the mere servant, but with the master from whom the consideration moves. A mere steward or other agent employed to let or sell the land or realty of the principal, cannot himself maintain an action upon any contract which he may enter into in the course of such employment. Thus, where several persons rented a building to be used as a synagogue, and a treasurer was appointed annually by them, whose business it was to let seats and receive the rents for the use of the lessees; it was held, in an action brought by the treasurer for rent due in respect of the seats so let, that the contracts for the occupation of the seats, though in fact made with the treasurer, were, in point of law, made with the lessees who had the title to the synagogue, and that they, and not their servant the treasurer, were the proper parties to maintain the action. (e)

SIMPLE CONTRACTS by an agent who has concealed his representative character.—In all cases of simple contract, the contract of the agent is, in fact, the contract of the principal; and although the latter is unknown, and undisclosed, at the time that the contract is entered into, yet he may, at any subsequent period, so long as the contract remains executory, come forward and claim the benefit of it, but he is, of course, bound by all the equities raised by his agent whilst dealing apparently as a principal, and can take such rights of action only as the latter possesses at the time that he, the principal, discloses himself. (ƒ) When the contract is in writing, and the agent appears on the face of it to be the contracting party, no mention whatever being made of the principal, it has been contended that the admission of parol evidence, to show that the party with whom the contract is so made is in reality only an agent, infringes the well-known rule of law, that the terms of a written contract cannot be varied, or contradicted, or added to, by oral testimony, inasmuch as it is offered to introduce a party to the contract other than the one in whose name it is expressed to be made. But it has been held, that the evidence amounts merely to an explanation of the real character of the transaction, and does not in any degree contradict or qualify the provisions and stipulations of the contract itself; and whilst "it is clear that parol evidence to vary a written contract cannot be received, yet that the parties contracted in the capacities of principals or agents may be explained." (y) "It is competent to show that one or both of the contracting parties were agents for other persons, and acted as such,

(e) Israel v. Simmonds. 2Stark. 356. Seignior and Wolmer's case, Godb. 360.

(f) Bastable v. Poole, 1 C. M. & R. 410, s. c. George v. Clagett, 7 T. R. 359. Carr v. Hinch

cliff, 4 B. & C. 547; 7 D. & R. 42.

(g) Park, J., in Wilson v. Hart, 1 Moore, 50. Sutherland v. Pratt, 13 Law J., N. S., Exch. 246.

in making the contract, so as to give the benefit of the contract to the unnamed principal, and this whether the agreement be or be not expressed in writing." () The following cases may be adduced as examples of the admission of extrinsic evidence for the purpose of letting in a principal not named in the contract, and giving him a right of action thereon.

A letter to the following effect, signed by the defendant, having been addressed to the plaintiff's attorney: "Mr. Gwyn,-Sir, the bearer, David Williams, has a sum of money to receive from a client of mine, some day next week, and I trust you will give him indulgence till that day, when I undertake to see you paid;" and an action having been brought upon this undertaking against the defendant, oral evidence was admitted to show that Williams, being indebted to the plaintiff, the latter had employed Gwyn as his attorney to sue him, and that the letter had been addressed by the defendant to Gwyn as the attorney of the plaintiff, and not as a principal and creditor of Williams. (i)

An action was brought upon the following guarantee, addressed to the plaintiff by the defendant:-" Sir, I understand that you had the goodness to consent to advance 5507. &c. upon my assurance, which I hereby give, that provision shall be made for repaying you this sum, &c." At the trial it appeared, that the money had been advanced by a banking house in which the plaintiff was a partner, and it was held that the averment in the declaration that the plaintiff had advanced the money was not supported by the proof, (k) and that the action ought to have been brought in the names of the firm, although the guarantee had been given to the one partner alone. (1) But negotiable instruments, such as bills of exchange and promissory notes, form an exception to this rule. Upon such instruments, none but the parties mentioned by their name or firm can be admitted to sue. (m)

With regard to contracts not put into writing, it has been holden, that the principal may disclose his real character, and require the fulfilment of the contract with himself personally, even in the case of factors who have sold goods for the principal in their own names, under a del credere commission,(») provided the general balance of accounts between the prin

(h) Parke, B., Higgins v. Senior, 8 M. & W. 844.

Beckham v. Drake, 9 M. & W. 91-96. Ruppell v. Dempsey, 4 N. & M. 31.

(i) Bateman v. Phillips, 15 East. 272. (k) Garrett v. Handley, 3 B. & C. 462; 5 D. & R. 319, s. c.

(1) Garrett and others v. Handley, 4 B. & C. 664; 7 D. & R. 144, s. c. Ruppell v. Roberts, 4 N. & M. 31.

(m) Beckham v. Drake, 9 M. & W. 92, 96; 11 M. & W. 317, s. c. in error.

(n) An arrangement by which the factor for a higher commission than that usually paid, makes himself responsible to the principal for the due payment of the price of goods sold by him. Grove v. Dubois, 1 T. R. 115. Johnstone v. Usborne, 11 Ad. & E. 549. Bonzi v. Stewart, 5 Sc. N. R. 1.

cipal and the factor is at the time in favour of the former. (o) Inasmuch, however, as the factor has a lien on the price of the goods in the hands of the buyer to the extent of the balance due to him from the principal on the general account, (p) his commission on the sale, monies advanced, &c., he may insist on payment from the buyer to himself in opposition to the principal, to the extent of the monies so due to him from the latter. (q)

Money paid by an agent.-If the money of the principal has been paid by the agent under circumstances which create a right to recover it back, the principal is the proper party to bring an action for "money had and received; (r) as in the case of a loan of money by a master, through the medium of his servant, apprentice, or clerk, or where the servant has been "cozened" or cheated out of his master's money.

The Duke of Norfolk's agent entered into a written agreement in his own name, and as it were on his own account, for the purchase of an estate, and paid a deposit of 300 guineas to the vendor; and it was held, on the non-completion of the purchase, through the default of the vendor, that the duke was entitled to maintain an action for the recovery of the deposit. (s) A Custom-house officer having demanded exorbitant fees from the master of a vessel, on his taking out a cocquet and bond pursuant to an act of parliament, which imposed the duty of so doing on the master personally, it was held that the owners of the vessel were entitled to maintain an action to recover back the amount of the over payment. (t) So, where a bill of exchange was given by the principal to his agent to get it discounted, and the latter indorsed it, and gave it to the defendant, who agreed to discount it, but without paying the full amount, made use of the bill for his own purposes, and the bill, when at maturity, was returned to the principal, and paid by him, it was held that the principal was entitled to maintain an action against the defendant, to recover the amount of the balance left unpaid; (u) and where an agent paid money on behalf of his principal by mistake, it was held that the principal was entitled to maintain an action to recover it back. (x)

If a number of persons agree to be jointly interested in a purchase which is to be made by one of them in his own name only, and the con

(o) Scrimshire v. Alderton, 2 Str. 1182. Escot v. Milward, 1 Esp. 108. Morris v. Cleasby, 1 M. & S. 579. Hornby v. Lacy, 6 M. & S. 166.

(p) Walker v. Birch, 6 T. R. 262. Houghton v. Matthew, 3 B. & P. 489.

(q) Drinkwater v. Goodwin, 1 Cowp. 255. Hudson v. Granger, 5 B. & Ald. 27.

(r) Ante, ch. 7, sec. 5; 1 Roll. Abr. 98; pl.

12. Drope v. Thaire, Latch. 126. Tracy v. Veal, Cro. Jac. 223. Ib. 224.

(s) Duke of Norfolk v. Worthy, 1 Camp. 337. (t) Stevenson v. Mortimer, 2 Cowp. 805. See also Smith v. S'eap, 12 M. & W. 585.

(u) Bastable v. Poole, 5 Tyr. 111; 1 C. M. & R. 410, s. c.

(x) Ancher v. Bank of England, 2 Doug. 637.

tract be made accordingly, all may join in suing for a breach of it. (y) If, again, the money of the principal be lent by the agent, the principal may maintain an action to recover it back, when the time of repayment arrives; but in such cases it must be distinctly and clearly proved, not only that the money advanced by A. was the property of B., but that B. was in reality the lender, although that fact might be unknown to the borrower; for if B. was to lend money to A., and A. was to make a further loan of it to C., B. would have no right of action against C. to recover it back. (z)

SECTION III.

OF THE AGENT'S RIGHT OF ACTION UPON SIMPLE CONTRACTS.

Bills of exchange and promissory notes.-The right of action upon bills of exchange and promissory notes is regulated by the law merchant, and rests upon peculiar grounds. If a bill or a note is made payable to one man for "the use," or for and on behalf," or for the benefit of another, the payee is the proper party to bring an action upon the instrument. If, therefore, a bill of exchange is drawn, payable to an agent, to "the use," or for the benefit of the principal, the agent must sue as a trustee for the latter. (a)

Contracts by agents who have concealed their representative character. -When a written contract has been entered into by an agent on behalf of his principal, and the agent's representative character is not disclosed on the face of such written contract, the agent is entitled to maintain an action thereon, unless the principal interferes to prevent him.

So, if an agent carries on trade for his principal in his own name, and ostensibly on his own account, he is entitled to maintain an action in respect of goods sold by him in the course of that trade, unless the real principal interferes, and asserts his right to the sum due. (b) Factors generally sell the goods of their principal in their own names, and are alone known throughout their dealings and transactions to the purchaser,

(y) Cothay v. Fennell, 10 B. & C. 671. Alexander v. Barker, 2 Tyr. 147; 2 Cr. & J. 139.

(z) Sims v. Bond, 5 B. & Ad. 393; 2 N. & M. 616, s. c. Calland v. Loyd, 6 M. & W. 26. Bollond, B., Alexander v. Barker, 2 Cr. &

Jerv. 139.

(a) Evans v. Cramlington, Carth. 5; 2 Ventr. 307. Beckham v. Drake, 9 M. & W. 92, 96. (b) Gardiner v. Davis, 2 C. & P. 49.

and they are consequently entitled to maintain an action for the price. (c) "Inasmuch as the agent is the person with whom the contract is made, it is no answer to an action in his name, to say, that he is merely an agent, unless you can also show that he is prohibited from carrying on that action. by the person in whose behalf it was made. In such cases you may bring your action either in the name of the person by whom, or of the party for whom, the contract was made. (d)

Contracts by agents who have an interest or a special property in the subject matter of the contract.-If the agent himself has an interest, or a special property in the subject matter of the contract, and so unites in himself, to a certain extent, the character of a principal to that of an agent, he is entitled to maintain an action upon the contract. Thus, where a broker had advanced money on the credit of a cargo consigned to him by his principal for sale, it was held that he was entitled to an action in his own name against the buyer, although the sale note given by the broker mentioned the name of the principal; (e) and the buyer in such a case cannot set off a debt due to him from the principal in the action by the agent. But if, by the introduction of the name of the principal into the contract, the defendant has been prejudiced, he would be entitled to make use of that circumstance as a defence.

A bill of lading usually specifies that the master or captain of the ship is to deliver the goods on payment of the freight. The master, if he delivers the goods without such payment, becomes liable to the owner for so doing; and it has been held, therefore, that he may maintain an action for the freight against a consignee who has accepted goods under such a bill of lading. (ƒ) A consignee accepted goods under a bill of lading, at the bottom of which was a memorandum, that the ship was to be delivered in sixteen lay days, " 87. per day demurrage to be paid for every laying day after the expiration of that time." And it was held that the master was entitled to sue the consignee for the demurrage. (g) In the absence, however, of an express stipulation for the payment of demurrage, the master or captain cannot sue.

So, in the sale of goods by a factor, although the principal may be named or known at the time of the sale, yet as the factor has a general lien on the price of the goods in the hands of the buyer for the balance

(c) Sadler v. Leigh, 4 Camp. 196. Snee v. Prescott, 1 Atk. 248. Johnson v. Hudson, 11 East, 180.

(d) Bayley, J., Sargent v. Morris, 3 B. & A. 281. Hall v. Smith, 2 D. & R. 587; 1 B. & C. 406. Alexander v. Barker, 2 Tyr. 147. Brassington v. Ault, 9 Moore, 340. 2 Bing. 177,

8. c.

(e) Atkyns v. Amber, 2 Esp. 493.

(f) Brouncker v. Scott, 4 Taunt. 4. Shields v. Davis, 6 Taunt. 65. Sanders v. Vanzeller, 4 Ad. & E. N. S. 295.

(g) Jesson v. Solly, 4 Taunt. 52. Brouncker V. Scott, id. 1.