Lapas attēli
PDF
ePub

assumed a personal responsibility, or the law decides to the contrary. When, however, a person enters into an operation in the character of an agent, it would be for the tribunal to decide according to circumstances, whether there was reason to think that he acted for himself (a).

son dealing as

agent has in

fact acted on

his own account.

Contract with

the agent is a contract with

Agent not

liable when

he does not contract in his

own name.

United States. Every contract made with an agent in relation to the business of the agency, is a contract with the principal, entered into through the instrumentality of the agent, the principal. provided the agent acts in the name of his principal. The party so dealing with the agent is bound to his principal, and the principal, and not the agent, is bound to the party. Where an agent is duly constituted and names his principal, and contracts in his name, and does not exceed his authority, the principal is responsible and not the agent. The agent becomes personally liable only when the principal is not known, or where there is no responsible principal, or where he agent becomes liable by an undertaking in his own name, or when he exceeds his power. And when the agent becomes personally bound by his own assumption his principal is no liable. If the agent makes the contract in behalf of his principal and discloses his name at the time, he is not personally liable, even though he should take a note for the goods sold payable to himself. But When he disif a person would excuse himself from responsibility on the name of the principal he is ground of agercy, he must show that he disclosed his principal at the time of making the contract, and that he acted on his behalf, so as to enable the party with whom he deals to have recourse to the principal in case the agent bad authority to bind him. When an agent acts for merchants residing in foreign countries the legal presumption is, that the credit is given to the agent exclusively, yet the Supreme Court of New York held that the agent is not personally responsible when he appeared in the transaction as an agent only, and dealt with the plaintiff in that known character. If the agent buys in his own name, but for the benefit of his principal, and without disclosing his name, the principal is also bound as well as the agent, provided the goods come to his use, or the agent con- as the principal are liable. tracted in the business intrusted to him and according to his power. And if the agent binds himself personally, and engages

(a) Pardessus, tom. ii. p. 63.

closes the

not liable."

If the name of
the principal
is not dis-
closed the

agent as well

Distinction between public and private agents.

Public agents

never liable personally.

personally in his own name, he will be held responsible, though he should, in the contract or covenant, give himself the description or character of agent. And though the attorney who acts without authority, but in the name of the principal, be not personally bound by the instrument he executes, if it contains no covenant or promise on his part, yet there is no remedy against him by a special action upon the case, for assuming to act when he had no power. If, however, the authority of the agent be coupled with an interest in the property itself, he may contract and sell in his own name. There is a distinction in the books between public and private agents on the point of personal responsibility. If an agent, on behalf of government, makes a contract, and describes himself as such, he is not personally bound, even though the terms of the contract be such as might, in a case of a private nature, involve him in a personal obligation. The reason of the distinction is, that it is not to be presumed that a public agent meant to bind himself individually for the government, and the party who deals with him in that character is justly supposed to rely upon the good faith and undoubted ability of the government. But the agent in behalf of the public may still bind himself by an express engagement, and the distinction terminates in a question of evidence. The inquiry in all the cases is, to whom was the credit, in all the contemplation of the parties, intended to be given. An agent is liable to third persons for acts of misfeasance and positive wrong, but for mere nonfeasance and negligences in the course of his employment, he is answerable only to his principal, and the principal is answerable over to the third party. Agents and attorneys, using reasonable skill and ordinary diligence in the exercise of their agency, are not responsible for injuries arising from mistakes in a doubtful point of law (a).

(a) Kent, Commentary, Vol. iii. pp. 817-826.

SECTION VIII.

RIGHTS OF THE PRINCIPAL.

BRITISH LAW.

and

his

In all cases where the principal is bound for the acts contracts of the agent done under his authority and with consent, or ratification, the principal is equally entitled to the advantages and benefits of such acts and contracts as against third persons (a). So in all cases where the agent has contracted in the name of his principal, the principal may adopt the contract and may sue in his name exclusive of the agent. Even where the agent has contracted for an undisclosed principal in his own name, the principal may adopt the contract and sue upon it, but he must adopt it altogether (b).

A foreign principal also may sue in his own name to enforce rights acquired by his agent in a course of dealings on his

account.

The principal has a right to the benefit of the acts of the

agent, and

may sue upon

the contract.

A foreign principal may enforce the

agent's contract.

contract is in the name of

the principal he alone may sue upon it; vice versâ if

the contract

was in the

name of the

agent.

Where a contract in writing, under seal, has been executed When the by the agent in the name of the principal, and the covenants are entered into with the principal and not with the agent, then the principal alone has a right to sue upon it. If, on the other hand, the agent contracted in his own name on behalf of his principal, the agent and not the principal must sue upon it. If the contract is entered into with the principal and the deed is executed by the agent in his own name, neither party could. sue upon it. Payment or delivery by the agent is payment or delivery by the principal. Therefore, if the agent pays money of the principal, which the latter would be entitled to recover, as where the consideration fails, where money is paid through mistake, where money has been illegally extorted from the agent, or where the money has been fraudulently applied by the agent, the principal may sue upon it (c).

The principal has a right to the benefits of the acts of his agents. When, therefore, an agent derives profit from property

(a) Seignior v. Walmer, Godb. 360. (b) Routh v. Thompson, 13 East, 274; Marsh v. Keating, 1 Bing. N. C. 196; Sims v. Bond, 5 B. & Ad. 393; Sims . Brittain, 4 B. & Ad. 375; Humphrey v. Lucas, 2 Car. & K. 152.

(c) Tracy v. Veal, Cro. Jac. 223; Drope v. Thaire, Latch. 126; Duke of Norfolk v. Worsley, 1 Camp. 337; Dalzell v. Mair, Camp. 532; Archer . The Bank of England, Doug. 637; Stevenson v. Mortimer, Cowp. 805.

The principal has a direct

right against third parties for the acts of

his agent.

Right of the principal to payment.

purchased on behalf of his principal he would be held trustee for the same (a).

FOREIGN LAWS.

France.—Third parties who have dealt with an agent are deemed to have incured a direct obligation towards the principal who may sue them direct as a personal obligation. And vice versa those who have contracted with an agent acquire a direct action against the principal.

United States.-When goods have been sold by the factor the owner is entitled to call upon the buyer for payment before the money is paid over to the factor, and a payment to the factor, after notice from the owner not to pay, would be a payment by the buyer in his own wrong, and it would not prejudice the rights of the principal. If, however, the factor should sell in his own name as owner, and not disclose his principal, and act ostensibly as the real and sole owner, the principal may nevertheless afterwards bring his action upon the contract against the purchaser, but the latter, if he bonâ fide dealt with the factor as owner, will be entitled to set off claim he may have against the factor, in answer to the demand of the principal (b).

any

Holland. The principal has a direct right against the party with whom the agent has contracted as such, and may demand the execution of the agreement (c).

An agent cannot bind his principal by deed, unless it is executed in his name.

SECTION IX.

LIABILITY OF THE PRINCIPAL.

BRITISH LAW.

That an agent may bind his principal by deed, the same must be executed in his name (d). Thus a conveyance by a deed executed by the attorney in his own name is a void conveyance, inasmuch as where an interest is to pass by an instrument, it must in terms purport to be conveyed by him in whom alone that interest is vested. In other commercial contracts,

(a) The Bank of London v. Tyrrell, 28 L. J. Ch. 921.

(b) Kent's Comment. Vol. ii. p. 824.

(c) Dutch Code, § 1836.

(d) Wilks v. Back, 2 East, 142.

wherever it is sufficiently shown that the true object and intent of the act was to bind the principal and not the agent, the same will be construed as such (a).

That the agent may bind his principal, the act done must be within the scope of his authority. Whenever the agent does any act beyond the scope of his power, it is void even as between him and the principal (b). A general agent acting within the general scope of his authority may bind the principal, although acting contrary to express private instructions, if these instructions are unknown to the party acting with the agent (c).

The act must scope of the agent's au

be within the

thority.

Special agent principal only

will bind his

when he

strictly ad

But in a case of special agency the agent will bind the principal only when he has strictly adhered to his instructions. Thus where an agent was authorised to sign his name to a note for a certain sum payable at six months, and the agent put the heres to his principal's name to a note for the same sum payable in sixty days, it was held that the principal was not liable.

If a person sells goods, supposing at the time of the contract he is dealing with a principal, but afterwards discovers that the person with whom he has been dealing is not the principal in the transaction, but agent for a third person, though he may in the meantime have debited the agent with it, he may afterwards recover the amount from the real principal, provided, however, the state of the accounts between the principal and the agent is not altered to the prejudice of the principal (d).

instructions.

Principal

liable though the agent may

have been

debited.

agent be

pre

On the other hand, if at the time of the sale the seller Unless the knows that the person who is nominally dealing with him is ferred as not principal but agent, and also knows who the principal really debtor. is, and notwithstanding all that knowledge chooses to make the agent his debtor, dealing with him and him alone, then the seller cannot afterwards on the failure of the agent turn round and charge the principal, having once made his election at the time when he had the power of choosing between one and the other. So if after the disclosure of the principal the seller lie by and suffer the principal to settle the account with his broker for the amount of his purchase, he cannot afterwards charge the

(a) Long v. Coburn, 11 Mass. A. R. 97.

(b) Olding v. Smith, 16 Jur. 497,

Q. B.

(c) Howard v. Braithwaite, 1 Ves.

& B. 202; Fenn v. Harrison, 3 T. R.
757; Whitehead v. Tucker, 15 East,
399.

(d) Cox v. Midland Railway Com-
pany, 3 Exch. 268.

« iepriekšējāTurpināt »