there is a designatio personæ upon the face of the deed, either in the body, or at the foot of it, parol testimony is of course admissible for the purpose of applying such description, and establishing the identity of the party.

If the defendant has not sealed and delivered the deed with his own hand, it must of course be made out that he is a party to it in point of law, and this can only be done by showing that the person who sealed and delivered the deed in his name, was authorized so to do by a power of attorney or written authority under SEAL. (0)

SECTION II.

LIABILITIES UPON SIMPLE CONTRACTS.

Ascertainment of the party to be charged upon SIMPLE CONTRACTS.— In all simple contracts required by the Statute of Frauds, to be expressed in writing, there must, as in the case of deeds, be some designatio persona, or description of the party to be charged. (a) He must be described either by his own name, or by some acquired or adopted name, which must appear either in the body of the writing, or by the signature appended thereto, oral evidence being admissible to apply the description or signature, and establish the identity of the party. But the liability upon simple contracts is not confined, as in deeds, to the person who has signed and executed the contract. A man may contract in the name of an agent by simple contract, and may sign and execute the contract in the name of such agent, and render himself personally responsible thereon. "Parol evidence is always admissible to show that the party sued is the person making the contract, and bound by it, whether he does so in his own name, or in that of another, or in a feigned name . . . If he is sued and his identity made out, the contract is not varied by appearing to have been made by him in a name not his own." (b)

The doctrine that when a contract is in writing between parties signing

(o) See post. ch. 16, (Principal and Agent,) and ante, 256.

(a) Ante, 80, n. (o) and 117, 160.

(3) Ld. Denman, C. J.; Trueman v. Loder, 11 Ad. & E., 594.; 3 P. & D., 271, s. c. and see post, ch. 16. (PRINCIPAL AND Agent.)

their names to it, it cannot be used against other parties than those who signed their names to it-cannot be supported either on principle or authority. There is no question that a (simple) contract, in writing, by an agent, signed by himself, will bind his principal when the other contracting party discovers the principal, although the contract was made without his knowing who the principal is as for instance, in the case of a bill of lading, signed by the master, where the action is brought against the owners. It is also the case in certain charter-parties, signed by the master, where the owner is rendered liable by the act of the master, because the master is his agent."(c) "There are innumerable mercantile contracts in writing where the real principal, when disclosed, is made liable, though the contract is entered into by another, and is made in another name than that of the real principal." (d)

We have already seen (ante 244, 245, 257, 259) that the right of action upon simple contracts is not confined, as in deeds, to the persons with whom the contract is in terms made, or who are named therein as the contracting parties, but that a person by whose authority and instrumentality, and for whose use and benefit, an agreement inter partes has been entered into, may maintain an action thereon, although the contract is not in terms made with him, and although he is not described as a contracting party. This right of action upon a simple contract is naturally followed by a corresponding liability.

If the defendant has not signed or subscribed the writing with his own hand, it must of course be made out that the signature was authorized by him, or that he has since adopted it as his own; in either of which cases he is liable in point of law as the subscribing party, upon the ancient principle, "qui per alium facit, per seipsum facere videtur." This authority or subsequent ratification may, in the case of simple contracts, be given orally as well as in writing; it may be created by the conduct and acts of the parties as well as by express words, and it is frequently established by inference and implication of law for the enforcement of contracts and the promotion of honesty and good faith.

Bills of exchange and promissory notes, however, stand upon a somewhat different footing. The general rule with regard to them is, that none but the persons whose names appear upon the face of them can be sued thereon. "Each party who receives the bill is making a contract with the parties on the face of it, and with no one else." (e) But the parties may

(c) Per Lord Abinger, C. B., Beckham v. Drake, 9 M. & W., 91 post.

(d) Parke, B. ib. 96.

(e) Lord Abinger, C. B., and Parke, B., 9 M. & W. 91, 96.

be described and charged in an adopted and acquired name, as well as in their real names. Thus, if a bill of exchange is accepted, or indorsed, in the trading name of a firm in partnership, all the partners are as much liable thereon as if they had attached their individual signatures to the instrument. (ƒ).

LIABILITY of a person who contracts in his owN NAME, and apparently on his own account, but in reality on BEHALF of a THIRD PARTY. When a person upon the face of a simple contract promises and undertakes in his own name upon sufficient consideration, without reference to any third party, there is of course no question as to the liability of such promisor, although some third party, not named in the face of the contract, may be interested therein, and liable consequently to be sued thereon. (g).

If a servant, or an agent acting on behalf of his master, or principal, enters into a written contract in his own name, without qualification of his liability, or without declaring the agency on the face of such contract, and expressing it to be made by him for and on behalf of his master, or principal, he is liable thereon, although the party with whom he contracted may have known that he was not contracting on his own account. (h).

If a man signs drafts or orders on bankers for the payment of money, or draws, accepts, or indorses bills of exchange, or promissory notes for or on account of third parties, without an express qualification of his liability, he is himself personally responsible upon the bill, note, or draft, although the payee or indorsee knew at the tire the signature was attached to the instrument that the subscribing party was not acting on his account, but for and on behalf of another. It is an universal rule of law, that a man who puts his name to a bill of exchange thereby makes himself personally liable, unless he states upon the face of the bill that he subscribes it for another, or by procuration of another, and says plainly, 'I am the mere scribe.'" (i)

Thus when a bill of exchange was drawn and forwarded to D. for acceptance, in payment of a cargo of coals which had been delivered to him, and on the arrival of the bill at his counting-house, it appeared that he had left in pecuniary embarrassment, and that his brother, the defendant, had

(f) Ball v. Gordon, Tiger v. Gordon, 9 M. & W. 345, 347; Furze v. Sharwood, 2 Ad. & E. N. S. 418; post, ch. 18, s. 2.

(g) "Si j'ai promis en mon nom avec la personne avec qui j'ai contracté, je suis en mon nom obligé envers lui." Pothier, (OBLIGATIONS,)

No. 76. Harper v. Williams, 4 Ad. &. E., N.S.

231.

(h) Alford v. Eglisfield, Dy. 230, b. Post, ch. 16. (Principal and Agent.)

(i) Ellenborough, C. J., 5 M. & S. 349; Goupy v. Harden, 7 Taunt. 159.

come there to investigate his affairs; whereupon the latter was requested to sign the bill, which he did, without declaring on the face of it that he signed it for and on behalf of his brother; and it was objected, that as regarded the defendant, the bill was a mere accommodation bill, without consideration; the court held, that as the defendant had put his name to the bill without qualification, all the legal consequences of the act must follow, and that he was therefore personally liable, as drawer, to pay the bill."It was in the defendant's discretion," observes Bayley, B., "to sign the bill or not; and if he signed it, he might state on the face of it that he did so as agent for his brother, or have signed by procuration.' Had he done so, the latter would have been liable. Here he signed it generally, and thereby incurred personal obligation. It is no answer to say that he had no consideration for binding himself personally if he has professed to do so; for the plaintiffs were entitled to insist on having some bill to be binding on some one. The debt of a third person is a good consideration, for which a man may bind himself by giving a bill of exchange." (k)

SIMPLE CONTRACTS appearing on the face of them to be made by the PROMISOR, "for and on behalf" of a THIRD PARTY.

AGREEMENTS by one person on behalf" of another.-When a person who is made a party to an agreement, inter partes, declares upon the face of the contract that he promises, or agrees, for and on behalf of a third person, who is named therein, the party so promising, or agreeing, will not be personally liable upon the contract, if he had authority from the person on whose behalf he professes to act, to enter into that contract for him. Having bound the latter by the contract, he is not himself regarded as one of the contracting parties, but merely as a medium of communication between them. But if he has contracted without authority from the party on whose behalf he professes to act, or has exceeded the authority given him, and has consequently failed to bind such third party by the contract, he is himself personally liable as a principal in the transaction, and the really contracting party. And the same result follows in general, if there is no responsible principal to resort to. Thus where the plaintiff agreed with two persons "to pave their streets in Putney," and they " on behalf of the parish agreed to pay him" therefor; it was held, that as the parish could not be sued upon such an undertaking, the work must be taken to have been done upon the personal credit and security of the promisors,

(k) Sowerby v. Butcher, 4 Tyr. 324; 2 Cr. & M. 368, s. c.

and that they were therefore personally liable upon their agreement. (7) So where the respective attorneys for the prosecutor and defendants on an indictment against the same parish for not repaving a road, entered into an agreement, by which the attorney for the prosecutor agreed that the recognizances should be respited, and the attorney for the defendants agreed" on the part of the parish" to pay the costs, it was held that the agreement was personally binding upon the attorney for the defendants. (m).

GUARANTEES expressed to be made by one person on behalf of another. -An undertaking in writing by one man to pay money on behalf of another who is named therein, may either be the undertaking of an agent acting on behalf of a named principal, binding the latter, and not himself, by the contract, or it may be the undertaking of a principal and sole contracting party, who comes forward to secure, on his own credit and responsibility, some benefit and advantage for a friend; or it may be the undertaking and guarantee of a surety, who binds himself for the performance of some act, or duty, by a third party, who is to be primarily liable upon the contract. "It is impossible to ascertain with certainty, merely from the language of the promise, whether it creates a personal liability on the promisor or not." (n)

The words, "I undertake on behalf of A. to pay," observes Tindal, C. J., "would seem in their natural meaning to point rather to a promise made by one person as agent of another, than as intending to bind the party using them in the character of principal;" (o) and therefore if the party so promising appears to have been fully authorized to make the promise, he will be deemed to be merely an agent, and not the principal contracting party. But if he has no authority from the person on whose behalf he promises, and the latter is not bound by the undertaking, then the promisor himself is the principal, and really contracting party, pledging his own credit, and responsibility, for the benefit and advantage of the person named in the contract. (p). One person may, as we have already seen, have the benefit of the performance of the consideration for a simple contract or promise, and another may be liable upon it as the really contracting party; (ante 100, 103). "If A. contracts with B. to make a coat for C., A. must pay for it, though C. wears it.” (q).

An action was brought upon a guarantee signed by the defendant in

(1) Meriel v. Wymondsol, Hardr. 205. (m) Watson v. Murrel, 1 C. & P. 307. (2) Denman, C. J., 4 Ad. & E.; N. s. 237. (0) Downman v. Jones, 14 Law, J., N. S. (Q. B.) 228.

(p) Harper v. Williams, 4 Ad. & E., N. S. 231.

(q) Maule, J., 15 Law, J., N. s. (C. P.) 129. Hargreaves v. Parsons, 13 M. &. W. 561. 570.