An agent, either for purchase (b) or sale (c) of an estate, may, unless the principal be a corporation (d), be appointed by word of mouth; but a verbal appointment, of course, is

Agent.

How may be appointed.

(v) Emmerson v. Heelis, 2 Taunt. 38; Kemeys v. Proctor, 1 Jac. & W. 350.

(w) Emmerson v. Heelis, 2 Taunt. 38.

(x) See Blagden v. Bradbear, 12 Ves. 466; Mason v. Armitage, 13 Ves. 25; Matins v. Freeman, 2 Keen, 25; Sug. 131.

(y) Manser v. Back, 6 Ha. 443; sed aliter, if the auctioneer had a written authority, and parties bid upon the faith of it; vide infra.

(z) Farebrother v. Simmons, 5 B. & Ald. 333; Wright v. Dannah 2 Camp. 203.

(a) Bird v. Boulter, 1 Nev. & M. 313.

(b) Sug. 130.

(c) Sug. 131.

(d) Corporation of Ludlow v. Charlton, 6 Mee. & W. 815; Cope v. Thames Haven Company, 3 Exch. 841; 6 Rail. Ca. 83. neither of the contracting parties can, it appears, act as agent for the other (d).

Where the agent has a written authority, parties dealing with him upon the faith of it are unaffected by private restrictions imposed upon him by his principal, but of which they have no notice (e).

Also, a person may so deal with third parties, as to warrant them in the belief that another is his agent; and he will, in Equity, be bound by any unauthorized agreement of the agent which he (the principal) has given them reason to consider authorized (f).

An agent, employed to bid for an estate, and not limited as to price, can bind his principal to any amount; if, being limited, he exceed the limit, and his want of authority be unknown to the other party, he himself is bound (g), and his principal is said to be free (h): but the production of written instructions authorizing him to give a certain price, does not preclude parol evidence of his having had a general discretionary power (i).

As between the vendor and an alleged agent for purchase, but whose authority is denied, the agent has all the rights and liabilities of a principal; the fact of agency, if denied, may, of course, if practicable, be established, by the agent against the principal, the principal against the agent (j), or the vendor against the principal.

Private instructions to.

Apparent agent.

For purchaser, how far be can bind his principal.

Agency, if denied, may be established.

(d) Wright v. Dannah, 2 Camp. 203; Farebrother v. Simmons, 5 Barn. & Ald. 333.

(e) Neeld v. Duke of Beaufort, 5 Jur. 1123; see, as to restrictions on an auctioneer, Manser v. Back, 6 Hare, 443.

(f) See Smith v. East India Company, 16 Sim. 76.

(g) See Jones v. Donnman, 4 Ad. & E.,N. S. 235, n.

(h) Hicks v. Hankin, 4 Esp. Ca.

114; Amb. 498; 10 Ves.400; Sug. 4 6; Quaere, however, whether the rule should not be, that where the agent exceeds the limit, the principal shall be bound to the extent of such limit; provided, in the case of au auction, that it exceed the amount of the last adverse bidding.

(?) Hicks v. Hankin, 4 Esp. Ca. see p. 116.

(j) Taylor v. Salmon, 4 Myl. & Cr. 134.

There is not, as a general rule, any objection to a contract for purchase entered into in the name of an agent, upon the ground of his having professed to deal on his own account (k); but in the converse case of a purchaser professing to contract as agent for another, Equity would refuse specific performance against the vendor, if it appeared that the name of the assumed principal was used as an inducement to a bargain which would not otherwise have been entered into (l).

An agreement entered into by an attorney or agent, should, in order to avoid any question as to personal liability, be made and signed, by him, as attorney or agent, in the name of the principal (m); in fact, if a person by deed covenant for himself and his heirs for the acts of another, he is personally liable, although described as agent (n); it has, however, been held, in a recent case, that if a person enter into a contract in writing, describing himself as agent and naming his principal, he is not personally liable unless he had no authority to make the contract, or, in making it, exceeded his authority (o); and even where a person, without authority, signs an instrument in the name of and as agent for another, he cannot be treated as a party to such instrument, and be sued upon it, unless he be shown to have been really the principal; although he may probably be liable in an action for damages for the misrepresentation (p): where the agent of the vendor, at the purchaser's request, signed the agreement in his (the agent's) own name, this was held not to bind the purchaser (q).

Contract by agent, assuming to be principal, enforced.

By nominal agent, when enforced.

Agreements by agent, how to be signed.

Agent, When personally liable.

(k) Sug. 242; Nelthorpe v. Hol-gate, 1 Coll. 203.

(l) Phillips v. Dvke of Bucks, 1 Vern. 227; and see other cases cited in Sug. 214; and see Ch. XVIII. infra.

(m) Sug. 53.

See Appleton v. Binks, 5 East,

148; and cases cited, Sug. 53.

(o) Downman v. Jones (in error), 9 Jur. 454, Ex. Ch.

(p) Jenkins v. Hutchinson, 13 Jur. 763, Q. B.

(q) Graham v. Musson, 5 Bing. N. C. 603.

After the contract is entered into, an agent for sale, if and so long as his principal's name is undisclosed, may vary the terms of payment (r); he cannot, without special authority, receive the purchase-money (s); if authorized to receive it, a direction from his principal to pay it to a third party, is irrevocable, if given for valuable consideration (t).

If an agent for sale is to receive for commission a percentage on the sum obtained, he cannot claim it in respect of any part of the purchase-money which remains unpaid (u): unless such nonpayment be occasioned by the wilful act or default of the vendor (v): if several agents are employed, and one find and another conclude the bargain with a purchaser, each may claim a commission; but not the usual commission, viz., 2l. per cent. (w).

The authority of an agent, either for sale or purchase, may be revoked at any time before he has entered into a binding agreement (a?); if he act without authority, his alleged principal, even although he have had no previous communication with him, or were ignorant of his name at the date of the contract, may adopt his acts (y): nor is it necessary that the principal should be competent to contract at the date of the agreement; for instance, an administrator may adopt a contract entered into before the grant of the letters of administration (z): but a contract entered into by A., expressly as agent for B., cannot be adopted by C. (a).

Agent of undisclosed principal may vary terms of payment.

Cannot receive purchase-money without authority.

Order upon, to pay purchase-money to a third person.

Commission.

Authority

Of, may be revoked; or unauthorized act adopted.

But not by any other than the nominal principal.

(r) Sug. 47; Blackburn v. Scholes, 2 Camp. 343.

(s) Mynn v. Jolliffe, 1 Moo. & R. 326; and see further, infra, Ch. XIII. as to payment to agents.

(t) Metcalfe v. Clough, 2 Man. & Ry. 178.

(u) Bull v. Price, 7 Bing. 237.

(v) S. C, seep. 241.

(w) Murray v. Currie, 7 Car. & P. 584.

(x) Farmer v. Robinson, 2 Camp.

339, n.; Manser v. Back, 6 Ha. 443; Smart v. Sandars, 3 C. B. 380.

(y) Maclean v. Dunn, 4 Bing. 722; and see De Beil v. Thomson, 3 Beav. 469; London and Birmingham Railway Company v. Winter, Cr. & Ph. 57; and Wilson v. Tummon, 6 Sc. N. R. 894.

(z) Foster v. Bates, 12 Mee. & W. 22G.

The clerk of an agent for sale has, it appears, no implied authority to bind the principal (b).