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sell goods as principals in one country or market for some person in another country or market, in consideration of a commission for their services (c). Del credere agents, who are agents for the purpose of a sale, and expressly or implicitly warrant or undertake for the due performance of the contracts procured through their agency. Their undertaking is not a guarantee in the strict sense, and therefore need not be in writing under the Statute of Frauds, s. 4 (p). Auctioneers, who are agents with authority to sell by public auction goods in their possession. They can sell in their own name, but are not authorised to give a warranty of the goods (q). They are entitled to an indemnity from the owner of the goods against the consequences of acting upon his authority ; and they have a lien upon the goods sold for their charges and commission. Other familiar instances of general agents are house and estate agents (r), ship brokers, insurance brokers, shipmasters, and partners (who are agents of the firm).

Legal effect of contracts made by agents.—Where an agent contracts with a third person, the precise legal effect differs according to circumstances. The following three different classes of cases may exist. First, the agent may contract as such for a named principal. In this case the agent is a mere conduit pipe, and, having acted as such, he immediately drops out of the transaction, the principal being solely liable on, and capable of enforcing, the contract (s). But there is an exception to this rule where the agent buys goods in England for a foreign principal, in which case, by mercantile custom, the agent is usually personally liable on the contract (t). Similarly, an agent who contracts by a deed, in which his principal is not

(0) Ireland v. Livingston (1871), L. R. 5 H. L. 407.

(p) Couturier v. Hastie (1852), 8 Exch. 40.

(9) Woolfe v. Horne (1877), 2 Q. B. D. 355.

(r) See Rosenbaum v. Belson, [1900] 2 Ch. 267.

(8) Ellis v. Goulton, [1893] 1 Q. B. 350.

(t) Hutton v. Bulloch (1874), L. R. 9 Q. B. 572; Malcolm v. Hoyle (1894), 63 L. J. Q. B. 1.

expressly named as a party, incurs personal responsibility (u). And if an agent signs a bill of exchange in his own name, and not in the name of his principal, the latter cannot be made liable on the bill (x). Second, the agent may contract for a principal whose existence is disclosed, but not his name. In this case, if the agent expressly contracts as such, and not so as to pledge his own personal credit, the principal, and not he, is the one to sue and be sued on the contract. But, on the other hand, if there is nothing on the face of the contract to exonerate the agent, he is primâ facie liable, and the third party can elect whether to treat him or the principal as the person responsible upon the contract (y). Evidence of custom may, however, in the former caso, be given to show that the agent is the person intended to be bound (2). Third, the agent may contract in his own name, without disclosing either the name or existence of the principal. In this case the other party to the contract has the option, within a reasonable time after ascertaining the identity of the principal, to elect to treat either the agent or the principal as the person with whom he contracted (a). But, having once exercised his option by some unequivocal act, he must abide by it. And if the third party has, by his conduct or representations, induced the principal to prejudice himself, under the belief that the third party has given credit in the matter to the agent personally, he cannot afterwards sue the principal (6).

In any of the above cases in which an agent contracts in his own name for an undisclosed principal, and the principal afterwards sues to enforce the contract against the third party, the latter may set off a debt due from the agent to himself (e). This is on the ground that “ the “ agent has been permitted by the principal to hold him“ self out as the principal, and that the person dealing “ with the agent has believed that the agent was the “ principal, and has acted on that belief” (d). This principle applies to factors and similar agents, but cannot readily apply to brokers (e).

(2) In re Pickering (1871), L. R. 6 Ch. App. 525.

(x) Bills of Exchange Act, 1882, ss. 23, 26, 91 (1).

(y) Thomson v. Darenport (1829), 9 B. & C. 48; Paice v. Walker (1870), L. R. 5 Ex. 173.

(z) Pike v. Ongley (1887),

18 Q. B. D.: 708 ; Borrow v. Dyster (1884), 13 Q. B. D. 635.

(a) Watteau v. Fenwick, [1893] 1 Q. B. 346 ; Paterson v. Gandasequi (1812), 15 East, 62.

(b) Heald v. Kenwo. thy (1855), 10 Exch. 745 ; Irrine v. Watson (1880), 5 Q. B. D. 414; Darison v. Donaldson (1882), 9 Q. B. D. 623.

Liability of an unauthorised agent.Even if a person purports expressly to contract as agent for a named principal or otherwise, he is personally liable if either he had no actual authority at all, or exceeded his authority (). A fortiori he is liable if the alleged principal was not in existence (g). In all such cases the agent is implied by law to have warranted that he had authority, and is therefore liable in damages, whether he acted fraudulently or innocently in the matter (h). This rule does not, however, apply to a contract made by a public servant as agent for the Crown ().

Duties of an agent.-As between himself and his principal, an agent must strictly adhere to his instructions and not exceed the authority given to him. He must use due diligence in carrying out his agency. In accordance with the maxim delegatus non potest delegare,” he must not delegate his authority, at all events except so far as to obtain merely ministerial assistance, or to employ qualified sub-agents, in cases where the nature of the business

(c) George v. Clagett (1797), 7 T. R. 359.

(d) Cooke v. Eshellry (1887), L. R. 12 App. Ca. 271.

(e) Montagu v. Forrrood, (1893] 2 Q. B. 330; Fish v. Kempton (1849), 7 C. B. 687.

($) Collen v. Wright (1857), 8 E. & B. 647; Oliver v. Bank of England, [1902) 1 Ch. 610;

affirmed in House of Lords, sub nom. Starkey v. Bank of England, W. N. 1903, p. 52; Halbot v. Lens, [1901] 1 Ch. 344.

(g) Kelner v. Baxter (1866), L. R. 2 C. P. 174.

(h) Firbank v. Humphreys (1886), 18 Q. B. D. 54.

i) Dunn v. Macdonald, [1897) 1Q. B. 401, 555.

implies an authority to do so (k). The right to delegate in cases of urgent necessity may also sometimes arise, but is confined to certain well-recognised cases, such as the master of a ship (1). He must fully account to his principal for the subject matter and profits of his agency ; and in particular must not make any secret profit, whether in the shape of a bribe, or surreptitious “commission,” or otherwise (m). This, of course, applies to directors of a company, who are, in law, agents of the company (n).

Rights of an agent against his principal.-An agent is entitled to the commission or remuneration, if any, agreed on, and he has an implied right to be fully reimbursed and indemnified by the principal in respect of all reasonable expenses and liabilities properly incurred in carrying out the agency (o). This does not, of course, apply where by express statute the right is excluded, e.g., by the Gaming Act, 1892 (p). In certain cases, also, an agent may have a lien upon the subject-matter or proceeds of the agency for his commission and expenses, e.g., in the case of auctioneers, brokers, factors, masters of ships, etc. (9).

Termination of agency.—The authority of an agent is, in general, revocable by the principal at any time before it is executed. But if the authority is “ coupled with an interest,” i.e., given for the purpose of securing some benefit to the agent, it is irrevocable (7). In any case, a revocation of the authority of a person who has been clearly held out by the principal as an agent for him, is not effective as against third persons afterwards dealing with the agent without notice of the revocation (s). Special provisions as to making powers of attorney irrevocable are contained in the Conveyancing Act, 1881, s. 47, and the Conveyancing Act, 1882, ss. 8 and 9. The authority of an agent is also primâ facie revoked by the death or bankruptcy of the principal (t).

() Bell v. Balls, [1897] 1 Ch. (n) Archer's Case, [1892] 1 Ch. 663 ; Brown v. Tombs, [1891] 322. 1 Q. B. 253; De Bussche v. Alt (o) Betts v. Gibbins (1834), (1878), 8 Ch. D. 310..

2 A. & E. 57; Perry v. Barnett (1). Grilliam v. Troist, [1895] (1885), 15 Q. B. D. 388. 2 Q. B. 84.

(p) Levy v. Warburton (1901), (m) Skelton v. Wood (1895), 70 L. J. K. B. 708. 71 L. T. 616; Shipway v. Broad. (9) Webb v. Smith (1885), wood, [1899] 1 Q. B. 369 ; Salford 30 Ch. D. 192 ; Merchant Shipping Corporation v. Lever, [1891) Act, 1894, s. 167 ; Re London and 1 Q. B. 168; Grant v. Gold Ex- Globe Corporation, [1902]2 Ch.416. ploration Syndicate, [1900] 1 Q. B. (r) Smart v. Sandarx (1848), 233; Erskine v. Sachs, [1901] 5 C. B. 895 ; In re Hannan's, etc. 2 K. B. 504.

Co., [1896] 2 Ch. 643.



(8) Drew v. 4 Q. B. D. 661.

(1) Salton v. New Beeston Cycle Co., [1900] 1 Ch. 43 ; Ex parte Snourbill (1872), L. R. 7 Ch. 534.

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