In some cases even though both parties attempted to bind a disclosed principal, they fail to do so because the principal had no capacity to contract, or was non-existent at the time. On general principles of contract the fact that the principal is not bound, would not afford ground for holding the agent bound by the terms of the proposed contract if it were clear that no bargain with him was intended; but it must be supposed generally that the parties intended to make a binding contract, and if they knew that none was possible with the principal because, for instance, it was a corporation not yet formed or because of its non-existence or lack of capacity, it is often a fair inference that a contract with the agent was contemplated. This inference of fact is the basis of a presumption sometimes too strongly stated, that the agent is bound in such a case.74 If, however, circumstances make it clear that the parties, understanding the facts, had no intention that the agent should be liable, he will not be.75 The agent has similarly been held in some cases bound personally where he contracts on behalf of a disclosed principal without authority;76 but if on a fair construction of the contract it appears that the intent was to bind the principal only, according to the better view the agent is liable not on the contract,77 but on an implied warranty of his authority based on his representation of authority.78
574; Worthington v. Cowles, 112 Mass. 30. Ia DeRemer v. Brown, 165 N. Y. 410, 417, 59 N. E. 129, the court said: "It is competent for an agent, although fully authorised to bind his principal, to pledge his own personal responsibility instead. Such a personal undertaking is not necessarily inconsistent with his character as an agent, and when he has so bound himself he will be held liable."
74 Doubleday v. Muskett, 7 Bing. 110; Kelnertr. Barter, L. R. 2 C. P. 174, 183; Johnston v. Allis, 71 Conn. 207, 215, 41 Atl. 810; Ryereon v. Shaw, 277 11l. 524,115 N. E. 650; Lewis v. Tilton, 64 Ia. 220, 19 N. W. 911, 52 Am. Rep. 436; Hastings v. Lovering, 2 Pick. 214, 13 Am. Dec. 420; Heath v. Goslin, 80 Mo. 310, 50 Am. Rep. 505; Learn v. Upstai, 52 Neb. 271, 72 N. W. 213; 'Booth ad*. Wonderly, 36 N. J. L. 250,
255; Timken v. Talhnadge, 54 N. J. L. 117, 120, 22 Atl. 996; Lagrone v. Tim-merman, 46 8. C. 372, 24 S. E. 290; Winona Lumber Co. v. Church, 6 S. Dak. 498, 62 N. W. 107.
75 Holt v. Winfield Bank, 25 Fed. 812, 814; Abeles v Cochran, 22 Kan. 405, 410, 31 Am. Rep. 194; Merchants & Planters' Co. v. Streuby, 91 Miss. 211, 44 So. 791, 124 Am. St. Rep. 651; Grafton Nat. Bank v. Wing, 172 Mass. 513, 52 N. E. 1067, 43 L. R. A. 831, 70 Am. St. Rep. 303; Codding v. Mun-son, 52 Neb. 580, 72 N. W. 846, 66 Am. St. Rep. 524; Ellis v. Stone, 21 N. Mex. 730, 158 Pac. 480; Elwell v. Tatum, 6 Tex. Civ. App. 397, 402, 24 S. W. 71.
76 Reeb v. Bronson, 196 111. App. 518; Richie v. Bass, 15 La. Ann. 668; Weare v. Gove, 44 N. H. 196; Collins v. Allen, 12 Wend. 356, 27 Am. Dec.
Fraud on the part of the agent is not essential to such liability,79 but if he fully discloses the facts on which his assumption of authority is based, he will not be a warrantor.80 And in order to hold the agent, the contract must have been one upon which the principal would have been liable had the agent been authorized.81