I. AS TO CONTRACTS UNDER SEAL--

1. The agent must be appointed by deed.

2. The covenants must be entered into by and with the principal; and the deed executed as and for the principal by his agent, lawfully appointed. Otherwise the principal can neither sue nor be sued on the deed.

Illustration.

James Simmonds, for and on behalf of W. F. Berkeley, but not appointed his agent under seal, let a farm by indenture of lease to Hardy. Simmonds executed the lease in his own name simply; and the covenants were made by and with Berkeley. In an action by Berkeley on the deed, it Iwas held that as the covenants were made with one party, and the lease was executed by another, he could not maintain his action. (c)

3. If the contract is made, and the covenants are entered

into in the agent's own name simply, he is liable to be sued thereon himself, and must sue, if an action is to be brought, as trustee for the principal.

4. An agent, duly appointed under a power of attorney, may execute a deed on his principal's behalf.

(i) By signing his principal's name simply.

(ii) By signing his own name, and expressing it to be for his principal.

(iii) By signing his principal's name, and expressing it to be done through him, the agent. (per pro.) II. AS TO CONTRACTS NOT UNDER SEAL.

1. Rights of the principal.

(i) If the agent has contracted in his own name on

behalf of an undisclosed principal, the latter may come forward and claim the benefit of the contract.

(c) Berkeley v. Hardy, 5 B, & C, 355.

Provided-

1. The contract is executory.

2. The agent has not expressly described him-
self in a written contract as being the prin-
cipal.(a) [See below.]
3. The inducement to the third party to enter
into the contract was not based on the
special character or credit of the agent.
Illustration, Hunter entered into a charter-
party with a shipowner, who described
himself therein as "C. J. Humble, Esq.,
owner of the good ship, or vessel, called
"The Anne." C. J. Humble was, un-
known to Hunter, acting as agent for his
mother, Grace Humble; and in an action
by her on the charter-party, parol
evidence was admitted at the trial, to
show that the son was acting on her
behalf. The Court held that this evi-
dence was not admissible, because it
contradicted the description given of
C. J. Humble in the written document,
and also because the third party has a
right to the benefit he contemplates from
the character, credit, and substance of
the party with whom he contracts. (a)
4. The principal is bound by all the equities
which the third party would have against
the agent.

Illustration. George, a clothier at Frome,

employed Rich and Heapy in London, factors in woollen goods, as his del credere agents. Claggett & Co. bought a quantity

(a) Humble v, Hunter, 17 L. J. Q. B. 350.

of woollen cloths of Rich and Heapy, part of which were cloth goods of George's; but the whole quantity was taken out of a mass in Rich and Heapy's warehouse. Shortly afterwards Rich and Heapy became bankrupts, and George, coming forward as their principal, sued Claggett & Co. for the price of their cloth. It was held that Claggett & Co. were entitled to set off against George's claim the amount of an acceptance of Rich and Heapy's in Claggett & Co.'s hands, which would have been available against Rich and Heapy in a claim made by them.(b)

(ii) If an agent contracts with a third party, without

the principal's authority, the principal (if existing at the time of the making of the contract) may, when the facts come to his knowledge, either repudiate or adopt the contract. Illustration. Wright held two promissory notes, a cheque, and an acceptance of Marks. Wright endorsed them to Ancona, and instructed a firm of solicitors to sue on them in Ancona's name. Ancona knew nothing of these proceedings until after action brought, when he adopted and ratified them. It was held that the action was properly brought in Ancona's name.(c)

2. Liabilities of the principal.

(i) Where an agent contracts, as principal, with a third

party, the latter on discovering the existence of the hitherto undisclosed principal, may elect to hold liable either the principal or the agent.

(b) George v. Claggett, 7 T. R 359.

(c) Ancona v. Marks, 31 L. J. Ex. 163.

I

Illustration.

Curtis and Harvey sold some gun

powder to one Boulton. Boulton became insolvent, and Curtis and Harvey then discovered he had bought as agent for Williamson & Co. They filed an affidavit of proof against Boulton's estate, and brought an action against Williamson & Co. It was held that they were entitled to make their election as to whether they should look to the agent or the principal, and that filing an affidavit of proof was not such a step as to show a final election to look to Boulton.(a)

(i) The same rule applies when the agent contracts as agent, but does not disclose his principal's name.

(iii)

Illustration.

McKune bought of Davenport certain glass and earthenware, under an order from Thomson, but did not mention Thomson's name at the time of the purchase. Davenport debited McKune, but before the credit expired the latter became bankrupt, and subsequently on Thomson's refusing to pay for the goods, sued the latter for the price. It was held that he was entitled to recover.(b) Where the agent has contracted, as agent, and credit has been given to him, with the full knowledge that he was only acting for a disclosed principal, the principal is not liable to the third party.

Illustration. Larazabal & Co. sent for certain goods of Addison's to their office. Gandasequi, a Spanish merchant, there selected some of the goods, and made stipulations as to the price and other matters. Addison debited Larazabal & Co., the brokers, in his books and invoices, and the brokers credited him with the amount of the purchase-money, and

(a) Curtis v. Williamson, L. R. 10 Q. B. 57.
(5) Thomson v. Davenport, 9 B. & C. 78.

debited Gandasequi with the same, and charged a commission. Larazabal & Co. became bankrupt. In an action by Addison against Gandasequi for the price, it was held that the plaintiff could not now elect to hold the principal liable, as he had made his election once, at a time when he knew who the principal was, to give credit to the agent.(c)

(iv) Where an agent has, without authority, entered into a contract with a third party on behalf of his principal; and the latter has subsequently, either expressly or by his acts, adopted the contract, he is liable to the third party.

Illustration. One Ebsworth, a broker, bought a quantity of wool of McClean for Dunn and Watkin, without their authority. They subsequently assented to the contract; but later on refused to accept and pay for the wool. In an action by McClean against Dunn and Watkin, it was held that they were bound by their subsequent assent to their broker's contract. (d)

(v) Parol evidence (which, as a rule, cannot be given to contradict a written document), may be adduced to enable an undisclosed principal to sue; and also to charge him on a contract made on his behalf by his agent.

It may be given to charge a new party, but not to discharge an apparent party.] Illustration.(a.) Higgins & Son sold, under a written

contract, 1000 tons of iron to John Senior & Co., iron merchants and iron commission agents. It was sought by the defendants in an action by

(c) Addison v. Gandasequi, 4 Taunt. 573.
(d) McClean v. Dunn, 1 M. & P. 761,