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assignee's estate ; for this is a vested liability from which the assignee cannot free himself by assignment over :(9) and in like manner, the assignee, after forfeiture and re-entry by the lessor, continues liable for rent previously accrued, notwithstanding the latter was to have the premises again, “ as if the indenture had never been made."(r)
174. Where lessee for years assigns his term in a part only of the land demised, debt for rent in arrear lies against lessee and assignee, either jointly or severally at the lessor's election ;(s) but whether there exists a privity of estate in respect of the whole land by an assignment of part only so as to sustain against the assignee of that part an action of debt for the entire rent, is a nice and difficult question.(1)
*175. The assignee, during his possession, is not only liable to [*136]
the original landlord, but has also a duty to perform towards the assignor, to whom he is liable in assumpsit or case, even though the assignment were by deed poll, for damages resulting from non-observance of the covenants in the lease ;(U) but covenant does not lie. at suit of the lessee, although such assignment be made “subject to the payment of rent and the performance of the covenants in the lease ;” (x) and although assignees under a void lease are not liable to the lessor in covenant, yet where they have paid the rent stipulated for by the lease, and have treated it as valid, they must be taken to hold on the terms contained in it, and will be liable to repair accordingly.(y)
176. The executors and administrators of a lessee, are liable by privity of contract, in their representative character, and to the extent of assets, for breaches of covenant in the lifetime of the testator or intestate ;(2) and subsequently to his death, they are also, to the like extent, bound by his covenants, although not named therein, unless they are such as in their
nature determine *by the death of the covenantor, and such as he
[*137] alone can perform.(a)
177. Where the personal representatives have entered into possession of the demised premises, and thereby created a privity of estate between themselves and the reversioner, the general rule is that they are liable per-, sonally as assignees, (b) except that, with respect to rent, their liability does
(9) Per Lord Abinger, C. B., Harley v. King, 2 Cr. M. & R. 18. 22, 23. (r) Hartshorne v. Watson, 4 Bing. N. C. 178.f
(8) Bac. Ab., Joint Tenants, (K.); Bailiffs, &c., of Ipswich v. Martin, Cro Jac. 411 ; Garnon v. Vernon, 2 Lev. 231; 2 Wms. Saund. 182, n. (1). As to covenant against lessee after assignment of part, ante, s. 167, and against assignee of part, ante s. 169.
(t) Curtis v. Spitty, 1 Bing. N. C. 756, 760,8 the judgment in which seems to throw some doubt on Hare v. Cator, Cowp. 766; Merceron v. Dowson, 5 B. & C. 479.h
(u) Burnett v. Lynch, 5 B. & C. 589,h recognized 1 Cr. & M. 659, and in Hancock v. Caffyn, 8 Bing. 366. But case is the more proper form of action. Ib.
(2) Wolveridge v. Steward, in error, 1 Cr. & M. 644, reversing S. C. 9 Bing. 60 ;£ and Mills v. Harris, cited 1 Cr. & M. 659; Burnett v. Lynch, 5 B. & C. 589. 602.
(y) Beale v. Sanders, 3 Bing. N. C. 850. See Andrew v. Pearce, 1 B. & P., N. R. 158, (2) Woodfall, L. T. 4th ed. 598—600. See Ackland v. Pring, 3 Scott N. R. 297.
(a) Selw. N. P. 10th ed. 484; Com. Dig. Covenant, (C. 1); Bac. Ab. Executors and Administrators, (P.1); Adams v. Gibney, 6 Bing. 556;" Hyde v. Dean of Windsor, Cro. Eliz. 553 ; Bridgman v. Lightfoot, Cro. Jac. 671.
(b) Buckworth v. Simpson, 1 Čr. M. & R. 834; Remnant v. Bremridge, 8 Taunt 1910 -seems to be badly reported; see per Patteson, J., 3 P. & Dav. 649; Buckley v. Pirk, 1 Salk. 316. See the judgment in Wollaston v. Hakewill; 3 Scott, N. R. 614. fEng. Com. Law Reps. 33. &Id. 27. hid. 11. Id, 21. Id, 23.
İd, 32, mId. 19. Id. 4.
not exceed what the property yields ; for rent is received by them, not so much' in the light of assets, as a profit of the land, which is to be handed over to the landlord in satisfaction or diminution of arrears that may be due ; but no such exception applies to the covenant for repairs.(c) It should be observed, too, that an executor with assets cannot waive a term of years, even if utterly valueless ; and if he do not enter on the demised premises, without *renouncing the executorship in toto.(d) But should there be no assets, and the properly be insufficient to pay the
[*138] rent, it seems that he may relinquish the lease ;(e) and that if there be assets sufficient to pay the rent for a part only of the term, he may
when such assets become exhausted, waive possession on giving notice to the
178. Where executors continued in occupation of premises demised to testator for one year certain, and afterwards from year to year, with power to determine the tenancy by notice to quit, which, however, was not given by the landlord, they were held personally chargeable on the terms of the original demise; the promise to abide by them being implied by law from the above facts.(h) But entry by one of two executors of a deceased tenant, does not enure as an entry by both, so as to render them jointly liable in an action for use and occupation.(i)
179. Assignment by the lessee, and acceptance of rent by the reversioner, will not discharge the executors of the former ; for the privity of contract on express covenants still exists ;(k) though debt will not lie after acceptance of *rent ;(l) and in covenant against the executors of a lessee, who, as already stated, will be liable without entry to the extent of
[*139] assels,(m) breaches may
be laid as well by the testator as by an assignee of the term under an assignment from the executors, after the will had been proved.(n)
180. The executor of an assignee is, in law, an assignee of the term ; and if he enters, and by such entry becomes possessed, may be charged as such generally for breaches of covenant after the testator’s death ; if he does not enter, he may defend himself by alleging, that he is no otherwise assignee than as executor, and that he has never entered or taken possession of the demised premises. On the other hand, if the executor is sought
(c) Per Tyndal, C. J., and Bosanquet, J., Tremeere v. Morison, 1 Bing. N. C. 97. 99;9 Tilney v. Norris, 1 Lord Raym. 553 ; Bull v. Wheeler, Cro. Jac. 647; Hornidge v. Wilson, 3 P. & D. 641 ; Per Denman, C. J., delivering the judgment of the court, Rubery v. Stevens, 4 B. & Ad. 245;p Buckley v. Pirk, 1 Salk. 316; Remnant v. Brembridge, 8 Taunt. 191. Quære, whether in respect of this liability, there is any difference between the case of an executor and that of an administrator ?-Per Tindal, C. J., 1 Bing. N. C. 98. 99.0
(d) Woodfall, L. & T. 4th ed. 194. See the judgment in Rubery v. Stevens. 4 B. & Ad. 244,4 and in Nation v. Tozer, 1 Cr. M. & R. 176; Howse v. Webster, Yelv. 103 ; Per Lord Lyndhurst, C. B., Reid v. Lord Tenderden, 4 Tyrw. 118, and n. (a).
(e) Semble, Ried v. Lord Tenderden, 4 Trw. 111; see n. (d) supra. (g) Ib.
(h) Buckworth v. Simpson, 1 Cr. M. & R. 834. (i) Nation v. Tozer, 1 Cr. M. & R. 172. Quære, whether an action of debt, for rent accruing due after the testator's death, would lie against both jointly. Id. 176.
(k) Bret v. Cumberland, Cro. Jac. 521, 522.
"Eng. Com. Law Reps. 4. Id. 27. PId. 24. 9Id. 24. Id. 30.
to be charged as such, the defence open to him is by alleging, that the term is of no value, and that he has fully administered all the assets which have come to his hands.(o)
181. An under lessee cannot be sued in covenant on the original lease, for there is no privity between him and the reversioner.(P) But a demise by lessee for a longer term than his own operates in law as an assignment,
*even though the rent reserved in the underlease exceed that [*140]
originally reserved.(9) And with reference to the lessee, the difference between an assignee and a sub-lessee is this,—that the assignee is a surety for the lessee, and liable accordingly; whereas, the only contract of the sub-lessce is, to perform the covenants in his sub-lease, but not, unless there be a specific covenant for that purpose, to indemnify the lessee against the costs of an action at suit of the lessor. (r)
2. PRINCIPAL AND AGENT.
Liability of Principal.-General Rule and Exceptions, ss. 182—184. Agent for the
purchase of Goods, &c., ss. 185–189. Agent for the sale of Goods, ss. 190, 191. Stakeholder, s. 192. Auctioneer, ss. 193, 194. Consignor, Consignee, and Carrier, or Shipowner, ss. 195–198. Liability of Master and Shipowner for Repairs, &c., ss. 199 --201. Public Officers and Servants of the Crown, Trustees, &c., ss. 202—205. Liability of the Members of a Club; s. 206. .
182. Where A. enters into a contract as agent for B., and is merely the medium by which the same is effected, the liability in respect of such
contract rests with B. ;(8) *and if a person contracts in writing, [ *140 a]
describing himself as agent and naming his principal, the principal will be bound, provided the agent had authority, to enter into the contract on his behalf; and in order to charge the agent, it will be necessary to show by clear proof the absence of such authority, or that the authority given has been exceeded (1) For instance, A. B. C. and D. carried on business as bankers, and issued a promissory note in this form:
I promịse to pay the bearer on demand 5l. value received ;” and signed thus - For A. B. C. and D., (signed) B.” It was held overruling Hall v.
2 (o) See the judgment in Wollaston v. Hakewill, 3 Scott, N. R. 613, 614, and the autho. rities cited in the argument.
(p) Holford v. Hatch, Dougl. 183, cited Brewer v. Hill, 2 Anstr. 419, Earl of Derby v. Taylor, 1 East, 502; Stone v. Evans, cited Woodfall, L. & T. 4th ed. 602. See Hicks v. Downing, 1 Lord Raym. 99 ; S. C. 1 Salk. 13.
(9) Wollaston v. Hakewill, 3 Scott, N. R.593. See Barrett v. Rolph, 14 M. & W.348;* Oxley v. James, 13 M. & W.209.*
(r) Penley v. Watts, 7 M. & W. 601 ;* Walker v. Hatton, 10 M. & W. 249 ;* after which cases it seems that Neale v. Wyllie, 3 B. & C. 533,5 cannot be supported. See also Duffield v. Scott, 3 T. R. 374; Jones v. Williams, 7 M. & W.493 ;* Blyth v, Smith, 6 Scott, N. R. 360.
(8) See Goodall v. Lowndes, 6 Q. B. 464. (t) Downman v. Jones, (in error,) 14 L. J., N. S., Q. B., 226, reversing the judgment in S. C., 4 Q. B. 235 (a). Chamberlain v. Hammond, Law. Times, vol. vii. p. 226; Harper v. Williams, 4 Q. B. 219 ; post, s. 184.t
*Eng. Com. Law Reps. 10. Id. 45. *Reprinted at $2.50 per vol.
Smith,(u) that the holder of this note had not a separate right of action against B. the party signing, but that the firm were liable; and Parke, B., observed— This is primâ facie a promise by one partner for himself and the other three partners, and it amounts to one promise of the four persons constituting the firm, and if B. had authority the firm is bound.(x) I really must say that I think Hall v. Smith cannot be supported. The partner in making the promise is only an agent for the firm. Then does it bind him personally, or does it bind the firm? No doubt the instrument was intended to bind the firm, and as he had authority as a partner to do it, it had that effect."(y)
182 a. The real question, then, in all these cases is *with whom was the contract made ; and in answering this question,
[*140 61 the jury will have to consider whether the party, through whose instrumentality the contract is alleged to have been made, had in fact authority to make it. Thus assumpsit for work and labour, in writing certain literary articles, was brought against the defendants, whose names appeared as proprietors of a newspaper in the declaration filed under 6 & 7 Wm. 4, c. 76, they had in fact ceased to be so before the contract was entered into, at which time L. was the sole proprietor; the jury found that the contract was made by L. on his own behalf, without any authority from the defendants; and also that the plaintiff, when he supplied the articles in question, did not know the defendants to be proprietors.' Held that although the declaration above mentioned was under the provisions of the statute (s. 8,) conclusive evidence of the fact that the defendants were proprietors, yet the real question was with whom the çontract had been made, and that upon the finding of the jury the defendants were not liable.(z) We conceive that it would be useless to cite cases expressly to show that a person cannot be bound by a contract, the making of which he has in no way authorized. Many illustrations of this proposition will, however, occur in the course of the ensuing pages, and in the Appendix.
182 b. Provided, however, the party contracting had authority from the party sought to be charged as principal, it matters not whether such authority was express or implied, or resulted in law from *a subse
[*141] quent sanction and recognition by the principal ;(r) and, as a general rule, the extent of the agent's authority (as between his principal and third parties) must be measured by the extent of his usual employment.(8) This rule, moreover, is applicable to every species of mercantile transaction, and whether the agent have or have not been dismissed from his employer's service, provided that the third party had no reason to be aware of the determination of his employment. But an important distinction is to be observed between a general and a particular agent: the authority of the former, to perform all things usual in the line of business in which he is employed, cannot be limited by any private order or direction not known to the party dealing with him ; whereas it is the duty of the party dealing with the latter to ascertain the extent of his authority; and, if the party so dealing do not, he must abide the consequences.(t)
(u) 1 B. & C. 407.4
(x) See Jones v. Corbett, 2 Q. B. 828. (y) Ex parte Buckley, in re Clarke, 14 M. & W. 469.* (z) Holcroft v. Hoggins, 15 L. J., N. S., C. P., 129.
(r) Chitt. Contr. 3rd ed. 212–221. 227; see other cases, 2 Selw. N. P. 10th ed. 1094 1096; Per Littledale, J., Thomson v. Davenport, 9 B. & C. 90;a Atlwood v. Munnings, 7 B. & C. 278 ;Davidson v. Stanley, 3 Scott, N. R. 49. As to payment to an agent, Chitt. Contr. 744—747; Rotton v. Inglis, 11 Law Journ., N. S., Q. B. 97. There is no implied authority in a member of a joint-stock company to accept bills of exchange an the part of the directors, or of the company; Bramah v. Roberts, 3 Bing. N. C. 963;' nor has a resident agent of a mining company any implied authority to borrow money on the credit of the shareholders. Hawtayne v. Bourne, 7 M. & W. 595.* Smith's Merc. Law, 2nd ed. p. 93. uEng. Com. Law Reps. 8. Id. 42. a Id. 17. bId. 14. cId. 32.
*Reprinted at $2.50 per vol.
183. When one, who is in truth an agent, executes a deed as principal (*142]
he will clearly be liable thereon; as, *if he covenant for himself, his
heirs, &c., and under his own hand and seal, for the act of another, though he describe himself in the deed as covenanting for and on the part and behalf of such other person.(u) So, where the directors of a company covenanted after a certain time to pay the purchase-money of a mine out of the payments to be made by the shareholders, and subject to certain provisoes, they were held personally liable on the expiration of the stipulated period ;(x) and so was a party, who entered into a bond of submission to an award, though on behalf of another.(y) An agent executing a deed for his principal, under a power of attorney, should sign in the name of the principal, or for his principal as agent ;(z) and, in order so to bind his principal, he must be authorized by deed.(a)
184. So, where an agent signs a contract in writing, though not under seal, as principal, he renders himself liable.O) But the true construction of the instrument must be considered, in order to collect the intention and understanding of the parties ;(c) and to determine, for instance, whether a
contract be to pay for another, or *whether it be a contract on behalf [*143]
of another to pay.(d) Hence, a broker signing a contract(e) as principal in his own name is liable; and so, if he put his name to a bill of exchange, for, by so doing, he makes himself personally responsible, unless in terms he qualifies that responsibility.(g) In like manner, will an attorney incur liability, who enters into an agreement nominally as principal, though really for his client ;(h) though a contract will not in general be
(t) Id. 94.96, 97, and cases there cited.
(z) White v. Cuyler, 6 T. R. 176; Wilks v. Back, 2 East, 142. See Hunter v. Parker, 7 M. & W. 343; ante, s. 55.
(a) Ante, s. 55. See Bell v. Tuckett, 11 Law Journ., N. S., C. P. 92. (6) Per Best, C. J., Norton v. Herron, 1 C. & P. 648;€ Burrell v. Jones, 3 B. & Ald. 47 ;f post, s. 187.
(c) Spittle v. Lavender, 2 B. & B. 452,8 and per Dallas, C. J., Id. 454. (d) Per Lord Lyndhurst, C. B., Hall v. Ashurt, 1 Cr. & M. 716. 719. (e) Magee v. Atkinson, 2 M. & W.440; Jones v. Littledale, 1 Nev. & P. 677 ; Hig. gins v. Senior, 8 M. & W. 834; post, s. 187.
(g) Sowerby v. Butcher, 2 Cr. & M. 368; Per Lord Ellenborough, C. J., Leadbitter v. Farrow, 5 M. & S. 345. 349; Lefevre v. Lloyd, 5 Taunt. 749 ; Goupy v. Harden, 7 Taunt. 159 ;h Higgins v. Senior, 8 M. & W. 844, 845,
(h) Hall v. Ashurst, 1 Cr. & M. 714; Iveson v. Conington, 1 B. & C. 160;i Watson v. Murrel, 1 C. & P. 307 ;k Prosser v. Allen, Gow, R. 117; Redhead v. Cator, 1 Stark. R. 14.m dEng. Com. Law Reps. 13. Id. 11. (Id. 5. 6Id. 6. bId. 2. Id. 8.
kId. 11. 'Id,'5. mId. 2.