implied by law so as to render him liable, (i) unless credit be given to him instead of his principal in the usual course of business, as by his town agent, or by his special bailiff:(k) and a partner, who draws a bill of exchange, with the privity of his copartners, in his own name, the proceeds of which, when discounted, are carried to the partnership account, can alone be sued thereon, the money not having been *advanced on the gen eral security of the partnership;(1) although an action for money [*144] lent would lie in this case against the firm, if circumstances shewed that the advance was made by way of loan to the partnership;(m) and, if business be carried on by a firm in the name of one partner only, it will be bound by his indorsement, provided it be shewn that the credit of the firm was thereby pledged, and not that of the individual member.(n) 185. The following rules will determine who ought to be sued on a contract for the purchase of property :-And, first, an agent contracting as principal is liable in that character; and, if the real principal be known to the vendor at the time of the contract being entered into by the agent dealing in his own name, and credit be given to such agent, the latter only can be sued on the contract.(0) But where the captain of a ship took in payment of freight the agent's bill on his own principal, which was not paid, the latter was still held liable on the charter-party.(p) 186. On the other hand, if, in the case just considered, the seller make his election to debit the principal, he cannot afterwards resort to the agent.(g) Whether *credit was given to one party or the other, in any parti cular case, must be determined by the jury; and although, on [*145] the Stock Exchange, there is an understanding between parties purchasing and selling stock, that the broker shall be held liable, notwithstanding the principal be disclosed, yet this custom does not universally prevail, and cannot preclude the seller from giving credit to the principal if he think proper; (r) and where a del credere agent being instructed to sell goods "for account of" his principal, who resided out of England, contracted in his own name, evidence of such a custom in the London corn market was held admissible. (s) But evidence of a custom in the tallow trade, where (i) Robins v. Bridge, 3 M. & W. 114, and cases there cited; Hartop v. Juckes, 2 M. & S. 438. (k) Scrace v. Whittington, 2 B. &C. 11; Foster v. Blakelock, 5 B. & C. 328; Kennedy v. Gouveia, 3 D. & R. 503; Townshend v. Carpenter, R. & M. 314. See Becke v. Cattell, 4 Scott, N. R. 246. (i) Emly v. Lye, 15 East, 7; Denton v. Rodie, 3 Camp. 493; Bawden v. Howell, 4 Scott, N. R. 331. See post, s. 208. (m) Denton v. Rodie, 3 Camp. 493. See per Bayley, B., Smith v. Craven, 1 Cr. and J. 507. (n) South Carolina Bank v. Case, 8 B. & C. 427.1 See Furze v. Sharwood, 11 Law Journ., N. S., Q. B. 119; post, s. 187. (0) Paterson v. Gandasequi, 15 East, 62; Addison v. Gandasequi, 4 Taunt. 574; Thomson v. Davenport, 9 B. & C. 78. 90.r (p) Tapley v. Martens, 8 T. R. 451. (q) Per Littledale, J., 9 B. & C. 90.* (r) Mortimer v. M'Callan, 6 M. & W. 58. See per Lawrence, J., Child v. Morley, 8 T. R. 615, cited per Bosanquet, J., Young v. Coke, 3`Bing. N. C. 731; Sutton v. Tatham, 10 A. & E. 27.t (8) Johnston v. Usborne, 11 A. & E. 549," and the cases there cited. See Trueman v. Loder, 11 A. E. 589," and the cases collected, Id. 600, n. (b);" Stewart v. Aberdein, 4 M. & W. 211. "Eng. C. L. Reps. 9, Id. 12. Pld. 21. Id. 15. Id. 17. Id. 32. Id. 37. Id. 39. the contract of sale was concluded by a broker, who signed bought and sold notes, and acted for both parties, that a party might reject the undisclosed principal, and look to the broker for the completion of the contract, was held to have been properly rejected as varying a written instrument. (t) 187. Secondly, if the principal be unknown at the time of contracting, whether the agent represent himself as such or not, the vendor may, on discovering the principal, debit either at his election ;(u) as, where a duly authorized agent signs a contract in his own name, either *he may [*146] be sued thereon as principal, or on the other hand, it is competent to shew that he entered into the contract as agent, so as to charge the real principal: (x) and this evidence in no way contradicts the written agreement; it does not deny that it is binding on those whom, on the face of it, it purports to bind, but shews that it also binds another by reason that the act of the agent, in signing the agreement in pursuance of his authority, is in law the act of the principal.(y) And the rule just stated applies equally to written as to parol contracts; (2) except in the case of bills of exchange, which stand upon the law merchant, and promissory notes, which are placed on the same footing by statute ;(a) and on neither of which instruments can any, but the parties named therein by their name or firm be made liable; (b) though it should be observed, that, if a bill be drawn on the partnership firm, and accepted by an individual member in his own name, this instrument will bind all the partners, because it must be under[*147] stood to be accepted according to the terms in which it is drawn.(c) 188. In the case of a policy of insurance, however, according to the ordinary course of trade between the assured, the broker, and the underwriter, the assured do not, in the first instance, pay the premium to the broker; nor does the latter pay it to the underwriter; but, as between the assured and the underwriter, the premiums are considered as paid, and the receipt of them is acknowledged by the policy. Hence, the underwriter ordinarily looks to the broker for payment, and he to the assured.(d) Where, however, the policy was under seal, and contained a covenant by the broker to pay the premiums, but no acknowledgement of their receipt: it was held that the assurer, having expressly agreed to look to the broker alone for (t) Trueman v. Loder, 11 A. & E. 589," (u) Thomson v. Davenport, 9 B. & C. 78; Per Park, J., Robinson v. Gleadow, 2 Bing. N. C. 161, 162; Paterson v. Gandasequi, 15 East, 62; Railton v. Hodgson, 4 Taunt. 576, n.; Wilson v. Hart, 7 Taunt. 295; Higgins v. Senior, 8 M. & W. 834. (x) Per Parke, B., delivering the judgment of the Court, Higgins v. Senior, 8 M. & W. 844. (y) Higgins v. Senior, 8 M. & W. 845, distinguishing Wilson v. Hart, 7 Taunt. 295 ; Hill v. Perrott, 3 Taunt. 274. See Lucas v. Godwin, 3 Bing. N. C. 737.b (z) Beckham v. Drake, 9 M. & W. 79, affirmed as to this point, 11 M. & W. 315, vir. tually overruling as to this point, Beckham v. Knight, 4 Bing. N. C. 243,e affirmed on a point of pleading, 1 Scott, N. R. 675. (a) 3 & 4 Ann. c. 9. (b) Per Lord Abinger, C. B., and Parke, B., Beckham v. Drake, 9 M. & W. 92.96; judgment in 8 M. & W. 844, 845; Siffkin v. Walker, 2 Camp. 308. (c) Mason v. Rumsey, 1 Camp. 384; Wells v. Masterman, 2 Esp. 731; Dolman v. Orchard, 2 C. & P. 104 ;d as to a partner's authority to accept bills for and in the name of the firm, post, s. 208. (d) Per Bayley, J., Power v. Butcher, 10 B. & C. 339-341; Per Lord Ellenborough, C. J. Jenkins v. Power, 6 M. & S. 287; Dalzell v. Mair, 1 Camp. 532. 1 the premiums, could not recover them from the assured; and that the latter was consequently liable to the broker for the amount which he had so covenanted to pay.(e) Again, where a British merchant effects a purchase for foreign principal, the credit is considered, by the usage of trade, as given exclusively to the former :(f) and this qualification must also be borne in mind that the principal shall not be prejudiced by the fact [*148] of credit having been given to the agent ;(g) as, by having in the interval inspected the agent's accounts, and having adopted in consequence a different course of dealing with him.(h) On the other hand, if the time for payment have not elapsed, the principal cannot, by prematurely settling with his agent, deprive the vendor of his right of election.(i) 66 189. Thirdly, if a person act as agent without authority he is personally and solely liable; and, if he exceed his authority, the principal is not bound by acts done beyond the limits of his legitimate authority; and the remedy is against the party assuming to contract.(k) If " A. employs B. to work for C., without warrant from C., A. is liable to pay for it:"() nor does it make any difference that B. believed A. to be in truth the agent of C. ;(m) for, in order to charge the last-mentioned party, the plaintiff must prove a contract with him, express or implied, and with him in the *charac ter of a principal, either directly or through the intervention of an [*149] agent.(n) " 189 a. It was recently observed,(o) that the cases decided with reference to the liability of an agent, who, having in fact no authority, professes to bind his principal, may be arranged in three distinct classes:-1st, where the agent makes a fraudulent misrepresentation of his authority, with an intention to deceive; 2ndly, where he has no authority, and knows it, but nevertheless makes the contract as having such authority, though without any fraudulent intention ;(p) 3rdly, where a party contracting as agent bonâ fide believes that he has authority so to contract, but has in fact no such authority, as if he acted on a forged warrant of attorney, which he believed to be genuine. To these three classes may be added a fourth, viz., where an agent, who had originally full authority to contract, contracts in the name of the principal, after such authority has in fact been revoked, but in ignorance of such revocation. Now in the first three of the above classes of cases, the agent will be personally liable, on the ground either of fraud or of misrepresentation of a fact peculiarly within his own knowledge. With (e) Power v. Butcher, 10 B. & C. 329 ;* and see the cases there cited. (f) Thomson v. Davenport, 9 B. & C. 87, 88; Paterson v. Gandasequi, 15 East, 69. (g) Per Lord Tenterden, C. J., Thomson v. Davenport, 9 B. & C. 86.5 (h) Wyatt v. Marquis of Hertford, 3 East, 147; Kymer v. Suwercropp, 1 Camp. 109; Robinson v. Reid, 9 B & C. 449,5 and cases there cited. (i) Kymer v. Suwercropp, 1 Camp. 109. (k) Woodin v. Burford, 2 Cr. & Mees. 391; Wilson v. Barthrop, 2 M. & W. 863; Fenn v. Harrison, 3 T. R. 757; Polhill v. Walker, 3 B. & Ad. 114; Per Lord Abinger, C. B., Acey v. Fernie, 7 M. & W. 154. (1) Dictum of Lord Holt, Ashton v. Sherman, Holt, R. 309;1 cited 2 M. & W. 218. (m) Thomas v. Edwards, 2 M. & W. 215. (n) See the judgment, 2 M. & W. 216, 217; Turner v. The Mayor of Kendal, 13 M. & W. 171; Spurrier v. Allen, 2 Car. & K. 210; Redmond v. Smith, 8 Scott, N. R. 250. (0) Judgment, 10 M. & W. 9. (p) See Polhill v. Walter, 3 B. & Ad. 114. *Eng. Com. Law Reps. 21. Id. 17. Id. 17. Id. 23. ¡Id. 3. *Id. 23. *Reprinted at $2.50. per vol. . respect to the fourth class, however, it has been held, that where the agent is guilty of no mala fides, no want of due diligence in acquiring knowledge of the revocation, and does not omit to state any fact within his knowledge relating to it, the *continuance of the authority, moreover, being a [*150] fact equally within the knowledge of both contracting parties, the agent cannot be made personally liable on the contract so entered into.(q) 190. An agent for the sale of goods is liable to an action for money had and received, at suit of the vendee, for any mistake in the price, or otherwise, so long as he stands in his original situation, and until there has been a change of circumstances, by his having paid over the money to his principal, or done something equivalent to it :(r) and although evidence is admissible on behalf of one of the contracting parties, to shew that the other was agent only, though contracting in his own name, and so to fix the real principal, yet it is clear, that if the agent contracts in such a form as to make himself personally liable-as for non-delivery of goods described in the invoice as bought of him-he cannot afterwards, whether his principal were or were not known at the time of the contract, relieve himself from that responsibility.(s) It should be added, that if money be illegally or wrongfully received, payment over to the principal is no defence to an action for its recovery.(t) *191. In general, an agent who receives money on behalf of his [*151] principal, and for some third person, cannot be sued for it by the latter; for the privity of contract is between the principal and agent on the one hand, and between the principal and the third party on the other.(u) Care is, however, frequently necessary in determining between which of the parties a sufficient privity exists, to sustain an action; for one who is primâ facie an agent merely may by his own wrongful act create a privity in law between himself and the party with whom he has been dealing on behalf of his principal. Where, for instance, lands having been mortgaged were reconveyed to the mortgagor on payment by him of the principal and interest, and in order to obtain the deeds from the mortgagee's attorneys, who claimed to have a lien upon them for their bill of costs against the mortgagee, the mortgagor was obliged to pay these costs under protest: it was held, that he might recover them from the attorneys as money had and received to his use; and in answer to the objection that there was no privity between the parties, the Court observed, that in Bamford v. Shuttleworth(x) (q) Smout v. Ilbery, 10 M. & W. 1.* (r) Per Lord Ellenborough, C. J., Cox v. Prentice, 3 M. & S. 348, and rison, Cowp. 566, recognised in M'Carthy v. Colvin, 9 A. & E. 616, 617. v. Anderton, 1 Cr. M. & R. 486; Horsfall v. Handley, 8 Taunt. 136.m (s) Per Lord Denman, C. J., Jones v. Littledale, 6 A. & E. 486. 490. Clementson, 2 Camp. 22. Buller v. Har. See Moore v. (t) Miller v. Aris, 1 Selw. N. P. 10th ed. 84, n. (36), and cases there cited; Smith v. Bromley, 2 Dougl. 696, n.; Snowdon y. Davis, 1 Taunt. 359, cited Smith v. Sleap, 12 M. & W. 585.* (u) Stephens v. Badcock, 3 B. & Ad. 354;o Bamford v. Shuttleworth, 11 A. & E. 926 ;P Stead v. Thornton, 3 B. & Ad. 357, n. (a);a Sims v. Brittain, 4 B. & Ad. 375; Clark v. Dignam, 3 M. & W. 478; Sewell v. Raby, 6 M. & W. 22;* Sadler v. Evans, 4 Burr. 1984, recognised in Greenway v. Hurd, 4 T. R. 555; Baron v. Husband, 4 B. & Ad. 611, 612, recognised in Howell v. Batt, 5 B. & Ad. 504. 506.$ (x) 11 A. & E. 926.P 1Eng. Com. Law Reps. 36. mId. 4. Id. 33. Id. 23. Id. 39. Id. 23. Id. 24. $Id. 27. Reprinted at $2.50 per vol. the attorney received the money merely as agent for his client, to whom alone he was responsible; that "the attorneys insisted on withholding the deeds *for their own benefit, to secure the payment of their own bill. It is a mistake to say, that there is no privity between the [*152] plaintiff and defendants. The privity in the original transaction was indeed between the defendants and their client; but when the defendants compelled the plaintiff to part with money, in order to regain possession of his rights, the law created a privity between them, and implied a promise to repay what the defendants should appear to have improperly obtained."(y) 191 a. An agent who receives money for a specified purpose, and applies it to that purpose, is not legally answerable for any loss thereby incurred: as, if he remit money on commission, in pursuanee of instructions, and the remittee become bankrupt prior to its being paid over to the principal ;(z) or if he be employed as a mere gratuitous carrier, or made the gratuitous channel of conveyance or delivery, under circumstances which lead to no suspicion that the transfer may not be made lawfully, and without injury to the right of any third person. (a) 192. An arbitrator or stakeholder is discharged from liability by payment over to the successful party,(b) and if a stakeholder receive a cheque by of deposit to abide the decision of a referee, that decision must be communicated to him previously to commencing an *action for recovery way of the deposit. (c) Prior to the recent statute, 8 & 9 Vict. c. 109, [*153] in the case of an illegal wager, either party might recover from the stakeholder his deposit, whether the wager were decided or not, provided he demanded the return of his stake before payment over to the winner; (d) but if legal, it seems that neither party could, except by assent of all parties, recover back his stake before the determination of the event ;(e) and now the 18th section of the above act provides that all contracts or agreements, whether by parol or in writing, by way of gaming or wagering, shall be null and void, and that no action shall be brought for recovering any money or valuable thing alleged to have been won upon any wager, or which shall have been deposited in the hands of any person to abide the event on which any wager shall have been made. 193. An auctioneer is a stakeholder between the vendor and vendee, and liable accordingly.(ƒ) On the sale of an estate being effected, he (y) Wakefield v. Newbon, 6 Q. B. 276. 281; Davies v. Vernon, 6 Q. B. 443; Smith v. Sleap, 12 M. & W. 585, 588.* (z) M'Carthy v. Colvin, 9 A. & E. 607. kersy v. Ramsays, 9 Cla. & Fin. 818. See Snowdon v. Davis, 1 Taunt. 359; Mac (a) Per Lord Tenterden, C. J., Tope v. Hockin, 7 B. & C. 111; Coles v. Wright, 4 Taunt. 198. (c) Wilkinson v. Godefroy, 9 A. & E. 536. Cowling v. Beachum, 7 Moore, 465. (b) Tope v. Hockin, 7 B. & C. 101.t . (d) Hastelow v. Jackson, 8 B. & C. 221, as to which case see Mearing v. Hellings, 14 M. & W. 712. See also Allport v. Nutt, 14 L. J., N. S., C. P. 272; Thorpe v. Coleman, Id. 260; Hodson v. Terrill, 1 Cr. & M. 797. (e) Emery v. Richards, 14 M. & W. 728. See Homes v. Lock, 1 C. B. 524; Challand v. Bray, 11 Law Journ. N. S., Q. B., 204; Marryat v. Broderick, 2 M. & W. 369. 372; Eltham v. Kingsman, 1 B. & Ald. 683. (f) Burrough v. Skinner, 5 Burr. 2639; White v. Bartlett, 9 Bing, 378; Hardman v sEng. Com. Law Reps. 36. Id. 14. "Id. 36. Id. 15. Id. 23. MAY, 1847.-8 *Reprinted at $2.50 per vol. |