.It Is Not Infrequently Laid Down Broadly That If An Agent Discloses the fact that he is an agent, but not the name of his principal, he is personally liable.86 This, however, cannot be literally true. It must everywhere be possible by language clearly indicating that the agent intends to assume no liability, and that all rights and liabilities are to be those of an unnamed principal, to produce the desired result. There can be no policy of the law forbidding a person who deals with an agent assenting to such a bargain, foolish though it may be, if he wishes to do so. But in the absence of clear expression to the contrary, it is a fair presumption that he does not wish to do so, and the law is clear that the mere fact that the agency, but not the principal, is disclosed will not free an agent from personal liability as a contractor.87 Thus in a written contract, if one describing himself as "A, agent" or "A, broker " enters into an agreement, the contract is binding on him personally;88 these words being regarded as merely descriptio persona.89 In the United States even though the language of the contract indicates that the agent was acting on behalf of an unknown principal, and not for himself, the same result has generally been reached; 90 yet it may be supposed that if a disclaimer of liability on the part of the agent were assented to by the other party, the expressed intention would be made effectual. The imposition of liability on the agent where he has stated plainly that he is contracting on behalf of an unnamed principal, can certainly not be defended on ordinary principles of contract, and if supported, must be based on requirements of policy. In England the rule is less artificial than in the United States. If an agent contracts merely as such he is not liable personally, even if he does not name his principal;91 though proof of a

86See cases in the following two notes.

87Neely p. State, 60 Ark. 66, 28 8. W. 800, 27 L. R. A. 503, 46 Am. St. Rep. 148; McDonald v. Bond, 195 EL 122, 62 N. E. 881; Pugh v. Moore, 44 La. Ann. 209, 10 So. 710; Welch v. Goodwin, 123 Mass. 71, 25 Am. Rep. 24; Ginn v. Almy, 212 Mas. 488, 504, 99 N. E. 276; Landyskomiki v. Lark, 108 Mich. 500, 66 N. W. 371; Brown p. Ames, 59 Minn. 476, 61 N. W. 448; Knapp p. Simon, 96 N. Y. 284; Arger-singer v. MacNsugbton, 114 N. Y. 535, 21 N. E. 1022, 11 Am. St Rep. 687; DeRemer p. Brown, 165 N. Y. 410,419, 59 N. E. 129; Meyer v. Redmond, 205 N. Y. 478, 98 N. E. 906, affirming s. c. 141 N. Y. App. Div. 123, 125 N. Y. S. 1052; Powers p. McLean, 14 N. Y. App. Div. 92, 43 N. Y. S. 477; Good v. Rumsey, 50 N. Y. App. Div. 280,

63 N. Y. S. 981; Beebe p. Worth, 146 1ST. Y. S. 146; Sloan Corp p. Linton, 260 Pa. 569, 103 Atl. 1011; Long p. McKissick, 50 S. C. 218, 27 S. E. 636; Morris v. Clifton Forge Grocery Co., 46 W. Va. 197, 32 S. E. 997 (statutory).

88 Hutchison v. Eaton, 13 Q. B. D. 861.

89See infra, Sec.296.

90Neely p. State, 60 Ark. 66, 28 S. W. 800, 27 L, R. A. 503, 46 Am. St. Rep. 148 (oral contract); Brown v. Ames, 59 Minn. 476, 61 N. W. 448 (oral contract); Beebe p. Worth, 146 N. Y. S. 146 (written contract); Long v. McKissick, 50 S. C. 218,27 S. E. 636 (oral contract); cf. Rodliff v. Dallinger, 141 Mass. 1, 4 N. E. 805, 55 Am. Rep. 439, stated at the end of this section, and see infra, Sec. 577.

91 In Fleet v. Mutton, L. R. 7 Q. B. 126, Cockburn, C. J., after approving Fairlie v. Fenton, L. R. 5 Ex. 169, said: "I am of opinion that the same principle would apply where the prin-cipai is not named, so long as it appeals on the face of the contract that the broker is contracting, as broker for a principal, and not for himself as principal; and in that case, also, the broker would not be liable on the contract, if the principal failed to fulfil his contract." The agent was, however, held liable by virtue of a custom. So in Pike v. Ongley, 18 Q. B. D. 708, where a broker sold goods "for and on account of owner" but did not name the owner, the agent was held liable because of a custom of trade that if the name of the owner was not given in the buyer had the right to treat the broker as principal, but Lord Esher said: "In this case the defendants [the brokers] are clearly not liable upon the contract itself; they were selling as agents for an owner, and, in the absence of trade usage no liability would attach to them." See also Miller v. Smith A Tyrer, Ltd., [1917] 2 K. B. 141. In Cooper v. Gardiner, 2 N. S. Wales St. Rep. 67, 77, the court said: "There is abundant authority to show that signing his name with the word 'broker' added is not sufficient to indicate that he was contracting as agent for another person. The word 'broker' is simply a description, and in no way indicates that he is contracting as agent. It is obvious that brokers do sometimes-as was said in Garrett v. Bird (11 S. C. R. 97)-have shares standing in their own name, and contract as principals for the sale of them. And even though they are contracting on behalf of principals, yet they may nevertheless render themselves responsible. In the case of Hutchison v. Eaton (13 Q. B. D. 861), the defendant was an agent and was known to have been acting as an agent, but nevertheless he made himself responsible by the form of the contract he had signed. Although it is known that a person is a broker and that he is acting for principals, yet nevertheless liability may be incurred by the contract if made in a form which renders the broker personally liable. In this particular case, once admitting that the word 'broker' is a word of description, what is there on the face of this' contract to indicate that the broker acted in such a manner as to relieve himself from personal responsibility? The only other thing suggested is the statement in the contract commission 16s. 6(1' If we could see that that statement was absolutely inconsistent with the fact that Gardiner was contracting for himself, and indicated absolutely and beyond all question that he was not contracting as principal, but contracting for another and not for himself, then he would not be responsible; but I am clearly of opinion that it does not indicate that he was contracting as agent. It is quite clear that the knowledge that the defendant is acting custom in a particular trade so to regard him is admissible and effectual to charge him,92 unless the terms of the contract clearly indicate an intent that the custom shall not be applicable.93

It seems to have been assumed that if the agent was liable on a contract when his principal was not disclosed, it must necesarily follow that he could sue upon it. If the liability of the agent is imposed only when it is found as a fact that an intention was expressed that he should be a party, this result is sound; if, however, liability is imposed on the agent irrespective of apparent intention, because he has failed to disclose his principal, the conclusion is not a necessary one. Where the suit is by the agent, there is no ground either of actual contract or of imposed liability to urge against one who has expressed a willingness to contract only with a described though not named principal. The reasons of policy do not exist which are applicable when suit is against the agent. It is generally held, however, that under circumstances where the agent is liable he may also enforce the contract.94 There is, however, authority to the contrary. In a Massachusetts decision 95 one who purported to be an agent had agreed with the plaintiff to buy goods on behalf of an alleged existing but unnamed principal and the goods were delivered to the supposed agent who as broker is not sufficient to relieve him. The case of Hutchison v. Eaton (13 Q. B. D. 861) is conclusive on that point. Then does this item ' 1/2 commission 16s. 6d.' carry the case any further? If it be said that it shows that the broker was an agent, the question still remains, was he nevertheless responsible under this contract A man may have absolute knowledge that the broker is a broker, and may know that he is acting for a principal, and nevertheless if a broker chooses to make himself responsible under the contract he is personally responsible. It is said that a decision to this effect will come as a shock to the members of the Stock Exchange; but if we were to decide to the contrary we should be running counter to a long course of plain decisions. If a broker wishes to relieve himself of personal Lability, he can do so by the simple addition of the words in a contract of this sort 'sold on account of my principals,' or by signing the contract 'as broker.' It may seem a very slight difference, but apparently that is the law."

92See cases in the preceding note.

93Miller v. Smith & Tyrer, Ltd., [1917] 2 K. B. 141.

94 Short v. Spackman, 2 B & Ad. 962; United States Telegraph Co. v. Gil-dersleve, 29 Md. 232, 96 Am. Deo. 519; Ludwig v. Gillespie, 105 N. . 653, 11 N. E. 835. See also Camp v. Barber, 87 Vt. 235, 88 Atl. 812.

95 Rodliff v. Dallinger, 141 Mass. 1, 4 N. E. 805, 55 Am. Rep. 439.

resold them to the defendant, a bona fide purchaser for value without notice. The court held that not even a voidable title passed to the alleged agent and that the plaintiff was entitled to maintain replevin. This decision necessarily involves the assumption that there was no contract with the alleged agent. The court refused to distinguish decisions in which a principal was disclosed,96 saying: "It was suggested that this case differed from the one cited, because there the principal was disclosed, whereas here he was not, and that credit could not be supposed to have been given to an unknown person. We have nothing to say as to the weight which this argument ought to have with a jury, beyond observing that the plaintiffs had reason in [the agent's] representations for giving credit to the supposed [principal]. But there is no rule of law that makes it impossible to contract with or sell to an unknown but existing party. And if the jury find that such a sale was the only one that purported to be made, the fact that it failed does not turn it into a sale to the party conducting the transaction." 97