riage or a ship, there is an implied promise on the part of the principal, that he is not aware of any latent defect which renders it unfit for use, and if the hirer sustains an injury from any defect, and this defect was known to the principal at the time he intrusted the chattel to his agent to be let, the principal is liable to an action for damages, although the agent from whose hands the thing was received was entirely ignorant of the unfitness of the article for use at the time he contracted on behalf of his principal with the hirer for the use of it. (Post, ch. 22.) SECTION III. OF THE LIABILITY OF THE AGENT UPON SIMPLE CONTRACTS.(a) Agreements and undertakings in writing by an agent whose representative character is not disclosed upon the face thereof are binding upon the agent, whether he was, or was not known, at the time that he entered into the contract and signed the writing, to be acting as agent on behalf of a principal. If he enters into the agreement or undertaking merely as the mouth-piece of a third party, and neglects to declare the agency, and qualify his liability upon the face of the contract, he is personally responsible, and is not permitted to show, through the medium of oral evidence, that the other contracting party knew him to be merely an agent, and knew who his principal was, at the time he signed the contract. Such evidence is admitted, as we have already seen, in order to enable a creditor to get at the real principal, and to charge him with the burthen of the performance of the contract, but it is never admitted for the purpose of discharging the agent from an agreement or undertaking which is absolute and unqualified upon the face of it, and in which the agent has thought fit to represent himself as the really contracting party.(b) "If a factor or servant buyeth goods generally, and doth not upon the face of the contract note declare that he buyeth only as factor, or servant, he is chargeable in his own (a) As to the right of action of the agent upon simple contracts, see ante, 262 to 265. (b) Magee v. Atkinson, 2 M. & W. 442; Jones v. Littledale, 6 Ad. & E. 490, 1 N. & P. 679, s. c.; Hendray v. Hodgson, 5 Esp. 228. right."(c) "To allow evidence to be given that the party who appears on the face of the instrument to be personally a contracting party is not such, would be to allow parol evidence to contradict the written agreement, which cannot be done. And this view of the law accords with the decisions not merely as to bills of exchange signed by a person without stating his agency on the face of the bill, but as to other written contracts."(d) An auctioneer sold an estate by public auction, and immediately after the sale entered into and signed an agreement with the purchaser to the effect following:-"I, the undersigned William Gutteridge, do hereby acknowledge to have this day sold by auction, and I, the undersigned John Gray, do acknowledge to have this day purchased, the hereditaments and premises comprised in Lot 1; and we do hereby mutually agree to complete such sale and purchase agreeably to the annexed conditions of sale. As witness, &c." The vendor being unable to make out a good title, an action was brought by the purchaser against the auctioneer, when it was contended that the latter was known by the purchaser at the time of the sale to be the mere agent of the vendor, and that the plaintiff's remedy consequently was against him and not against the auctioneer, but per LORD TENTERDEN, C.J.-" Assuming the defendant to have been the agent of the vendor, still it is quite clear that he, like any other agent, had power, if he chose, to bind himself as a principal; and it seems to me that he has done so, for the contract which he signed states that he acknowledges to have sold the estate, and that he agrees to complete such sale, agreeably to the conditions of sale. Such being the language used by the defendant, I consider this contract as one made between the plaintiff and defendant as principals. (e) We have before seen that an agent may sue upon such a contract (ante, 262): he may naturally expect, therefore, to be liable to be sued thereon. Bills of Exchange and Promissory Notes signed by an agent without any qualification of his liability, and without any declaration or disclosure of the agency upon the face of the instrument, are binding upon the agent, and he cannot, as we have already seen, (ante, 376,) discharge himself from liability by showing that at the time he accepted or indorsed the bill or made the note he was known to be merely an agent, having himself no interest in, and deriving no benefit from the transaction. The defendant, as agent of the Durham Bank, at Hexham, was in the (c) De Gelder v. Savory, 2 Keb. 812. So by the French law, "Dans tous les engagements que le pèposé contracte en son propre nom pour les affaires auxquelles il est préposé, il s'oblige comme debiteur principal, et il oblige en meme temps son commettant comme debiteur acces- (e) Gray v. Gutteridge, 1 M. & R. 618. E E habit of drawing bills on account of such bank upon the firm in London, and the plaintiff, being desirous of procuring a bill upon London, sent a sum of money to the defendant for the purpose of obtaining one, and the defendant drew in his own name without qualification of his liability upon the house in town, directing the amount to be placed to the account of the Durham Bank, and it was held that the defendant was personally liable as the drawer of the bill, although the plaintiff knew that the defendant had received the money, and drawn the bill on account of the Durham Bank, to which the defendant had paid over the money he had received from the plaintiff.(f) Effect of a declaration of the Agency upon the face of the contract.— But if the contract, is on the face of it, expressed to be accepted, made, or indorsed by the acceptor, promisor, or indorser, for and on behalf of a third party, who is named upon the face of the instrument, it does not impose any liability upon the party so making or indorsing it, and who thus declares his representative character, provided he had authority from the principal or third party to do what he has professed to do, and has bound the latter by the contract. "If a bill be addressed to the master and underwrote by the servant; there undoubtedly the servant would not be liable, but his acceptance would be the act of his master."(g) Richard Mitchell signed a note of hand promising to pay a sum of money "for John Clarke, Richard Mitchell, Joseph Phillips, and Thomas Smith," and it appeared that he was the agent of the last named parties, and made the promise with their sanction and authority, and it was held that he could not be sued alone upon the note, but that all the four who had made the promise through the medium of Richard Mitchell their agent were the parties to be made defendants in an action upon the instrument.(h) So if an agreement or undertaking is expressed on the face of it to be made by the agent for and on behalf of a named principal, it does not impose any individual or personal liability upon the agent, provided he had authority to enter into the contract, and has contracted so as to bind the principal thereon. It is not necessary that the agent should be expressly declared to be an "agent" on the face of the contract; it is sufficient if it appears from the general context of the written instrument that he is dealing in that character, and that he intends to bind a named principal and not himself by the contract. (i) (f) Leadbitter v. Farrow, 5 M. & S. 345. (g) Per Cur. Thomas v. Bishop, 2 Str., 955. Wilson v. Barthrop, 2 M. & W. 865. (h) Ex parte Buckley, 14 M. & W. 469. (i) Downman v. Jones, 15 Law J., N. s. (Q.B.) 228. So by the French law, "Lorsque le prèposé contracte dans la qualité de facteur ou de fondé de procuration de son commettant, ce n'est pas lui qui contracte, c'est son commettant qui contracte par son ministère."-Pothier, (OBLIGATIONS,) 449. La procuration fait regarder celui qui a donné la procuration comme contractant lui-meme par le ministère de ce procureur.-Ib. No. 74. Goods were accepted by an agent under a bill of lading which made them deliverable unto him "for the London Gas Company, or to his assignees, he or they paying freight for the said goods, ten shillings per ton in cash for true delivery," and the defendant on the delivery of the goods promised to pay the freight in two months; and it was held that as the defendant appeared upon the face of the bill of lading to be merely the agent of the London Gas Company, and had received the goods in that character and not on his own account, the promise to pay the freight must be taken to have been made by him in his character of agent for the company to pay the freight on their account, and not a promise to be personally responsible for it. (k) An action was brought upon a written promise, addressed by the defendant to the plaintiff in the terms following:-"Your bill of charges in this matter, (the Pembrey works,) amounting to 5271. 5s., I undertake (on behalf of Messrs. Esdaile and Co.,) to pay, and will arrange with you the time and mode immediately after the dividend meetings. . ." From the letters and documentary evidence in the cause, it plainly appeared that this promise was made by the defendant in the course of a negociation which he was employed by Messrs. Esdaile and Co. to conduct with the plaintiff, that it had been arranged through the instrumentality of the defendant, acting on behalf of Messrs. Esdaile and Co., that certain deeds. should be given up to them, and a certain claim made by the plaintiff abandoned, and that Messrs. Esdaile and Co. should pay to the plaintiff the sum of 5271. 5s., and that the defendant then wrote the letter, promising to pay the money on behalf of Messrs. Esdaile and Co., as previously mentioned; and the court held that the necessary inference from the language of the letters and the nature of the transaction was, that the undertaking was an undertaking given by the defendant, in the course of his employment, as the agent of Messrs. Esdaile, and within the scope of his apparent authority, with the view of binding them and not himself thereby ; that it was so understood between the parties themselves, and that the defendant therefore could not be charged with the payment of the money, unless it could be shown on the part of the plaintiff that there was not, in point of fact, any such agency or authority as appeared upon the face of the letters, or that the authority, such as it was, had been so far exceeded by the defendant as to render Messrs. Esdaile and Co. irresponsible.(/) An estate was put up to sale by auction upon certain conditions of sale, providing that the purchaser should pay down a deposit, and the auction (k) Amos v. Temperley, 8 M. & W. 805. (1) Downman v. Jones, Exchr. Chr.; 14 Law J., N. s. (Q.B.) 228; 9 Jurist, 457, 458; 4 Ad. & E., N. s., 235 n. duty immediately, and sign an agreement for payment of the remainder of the purchase money at a day certain, on having a good title, and that the vendor should prepare and deliver to the purchaser an abstract of title, and the plaintiff became a purchaser upon these conditions, and the defendant, the auctioneer, then subscribed a memorandum indorsed on the particulars of sale, to the following effect: "I. E. Driver, as agent for the vendor, hereby agree to sell to the above-named R. H. Gaby, (the plaintiff,) the lot thirty-eight, referred to in the above memorandum, and upon the terms therein mentioned ;" and the sale not having been completed through the default of the vendor, in not delivering an abstract of title, the plaintiff brought an action against the defendant, the auctioneer, and contended that the latter, by signing the memorandum, had made himself personally liable as a principal; but the court held that it was impossible to contend that the auctioneer, by signing such a memorandum, had personally engaged to make out a good title to the estate, and to be responsible for all the consequences attendant upon a defective title. He had undertaken in the character of an auctioneer and agent, had expressly stated on the face of the written memorandum that he was agent for the vendors, had acted purely within the scope of his authority, had bound the principal by his acts, and that the remedy therefore for the breach of contract was against the principal and not against his servant. (m) So where an auctioneer, being employed to sell an estate by the owner, entered into an agreement with the purchaser for the sale of it, which was expressed to be made between Lavender, (the auctioneer,)" as agent for and on behalf of Samuel Randall (the owner) of the one part, and Spittle (the purchaser) of the other part; whereby Lavender, (the auctioneer,) for the said Randall, (the owner,) his heirs, executors, and administrators, and every of them, did promise that he, the said Charles Lavender, (the auctioneer,) his heirs, &c., would make out a title, and this agreement having been signed by the auctioneer and purchaser, the owner, with the knowledge and consent of the purchaser, afterwards added, "I hereby sanction this agreement, and approve of C. Lavender ((the auctioneer) having signed the same on my behalf," to which ratification he appended his own signature, and it was held that the agreement and ratification might be considered as one transaction, and that it manifested an understanding by all parties that the owner and not the auctioneer was to be personally liable upon the contract. (n) Liability of the agent on implied contracts. (m) Gaby v. Driver, 2 Y. & J. 555, 558. If an agent orders (n) Spittle v. Lavender, 5 Moore, 270. |