Wolf, 8 Pick. 56; Staekpole v. Arnold, 11 Mass. 27; Hunter v. Miller, 6 B.'Mon. 612; Rogers v. March, 33 Me. 106; Cooke v. Wilson, 1 C. B. (N. s.) 153 (1856); Barlow v. Cong. Soc. in Lee, 8 Allen, 460.
1 Long v. Colburn, 11 Mass. 97. See also Pentz v. Stanton, 10 Wend. 271; Emerson v. Pro v. Manuf. Co., 12 Mass. 237; Ballou v. Talbot, 16 Mass. 461; Mann v. Chandler, 9 Mass. 335; Hills v. Bannister, 8 Cow. 31; Barker v. Mechanic Fire Ins. Co., 3 Wend. 94; Mott v. Hicks, 1 Cow. 515; Brockway v. Allen, 17 Wend. 40. See also Ex parte Buckley, 14 M. & W. 473. In this case, one of several partners signed a bill, " For John Clarke, Richard Mitchell, Joseph Phillips, and Thomas Smith," and it was held that the firm were liable. The case of Hall v. Smith, 1 B. & C. 407, in which a different doctrine was held, is therein expressly overruled. See also Mr. Justice Story's remarks on Hall v. Smith, Story on Partnership, § 143.
2 Grubbs v. Wiley, 9 Sm. & M. 29; Bray v. Kettell, 1 Allen, 80.
3 N. E. Mar. Ins. Co. v. De Wolf, 8 Pick. 56; Passmore v. Mott, 2 Binn. 201. See also Wiley v. Shank, 4 Blackf. 420; Fiske v. Eldridge, 12 Gray, 474; Haverhill Mut. Fire Ins. Co. v. Newhall, 1 Allen, 130; Bank of British North America v. Hooper, 5 Gray, 567; Lindus v. Bradwell, 5 C. B. 583; Slawson v. Loring, 5 Allen, 340; Brown v. Parker, 7 Allen, 337.
4 Waddell v. Mordecai, 3 Hill (S. C), 22. See also Ex parte Buckley, 14 M. & W. 473; Lerned v. Johns, 9 Allen, 419; Ellis v. Pulsifer, 4 Allen, 165.
5 Owen v. Gooch, 2 Esp. 567.
The reason of this rule is, that it being perfectly competent for an agent to assume any personal responsibility, he must be presumed to have intended to bind himself, unless the terms of the instrument be expressive of a different intention.1 Thus, where a committee of a town, being authorized to build a bridge, made an agreement for the work, headed "agreement between " K., S., and H., "committee of the town of" W., and therein. the committee promised to pay, it was held, that the committee intended to bind themselves, and that they were personally responsible.2 So, also, where a president of an incorporated company, having authority to sign notes, signed one by which he promised to pay, it was held that he was liable upon his personal engagement, although he described himself as the president of such company.3 And where the solicitors or the assignees of a bankrupt gave an agreement in these terms, " We, as solicitors, etc, do hereby undertake to pay," it was held that they were personally bound.4 The principal will, however, be by no means exonerated, although he be unknown at the time of making the contract, unless the act done be actually beyond the scope of the agent's authority, or unless exclusive credit be given to the agent.5 Of course, where one executes an instrument in the name of another, assuming to be his agent, but having in fact no authority so to act, he is himself responsible,6 in some form of action.
1 Paley on Agency, by Lloyd, ch. 6, § 1, 2, p. 378, 402; Stackpole v. Arnold, 11 Mass. 27, 29; Leadbitter v. Farrow, 5 M. & S. 345; Kennedy v. Gouveia, 3 Dowl. & Ryl. 503; Stevens v. Hill, 5 Esp. 247; 2 Kent, Comm. lect. 41, p. 630, 631, 3d ed.; Story on Agency, § 155; Appletoa v. Binks, 5 East, 148; Cayhill v. Fitzgerald, 1 Wils. 28, 58; Cass v. Ruddle, 2 Vern. 280; Norton v. Herron, Ry. & Mood. 229; s. c. 1 C. & P. 648; Duvall v. Craig, 2 Wheat. 45; Higgins v. Senior, 8 M. & W. 834; Savage v. Rix, 9 N. H. 263; Tanner v. Christian, 4 El. & B. 591; 29 Eng. Law & Eq. 103.
2 Simondstf. Heard, 23 Pick. 120; Blanchard v. Blackstone, 102Mass. 343. 3 Barker v. Mechanic Fire Ins. Co., 3 Wend. 94.
4 Burrell v. Jones, 3 B. & Al. 47. See also Norton v. Herron, 1 C. & P. 648; Eaton v. Bell, 5 B. & Al. 34; Parker v. Winlow, 7 El. & B. 944; Deslandes v. Gregory, 2 El. & El. 602; Fullam v. West Brookfield, 9 Allen, 1.
5 Higgins v. Senior, 8 M. & W. 834; Trueman v. Loder, 11 Ad. & EL 589. See Negus v. Simpson, 99 Mass. 388; Fleet v. Murton, Law R. 7 Q. B. 126, 131 (1871); Calder v. Dobell, Law R. 6 C. P. 486 (1871).
6 Palmer v. Stephens, 1 Denio, 471; Collen v. Wright, 8 El. & B. 647; Weeks v. Propert, Law R. 8 C. P. 427 (1873).
§ 225. This modification is not, however, very extensive in its operation; for, whatever may be the terms of a parol con-tract, made within the scope of his authority, he will not be personally liable, if he can show clearly that exclusive credit was given to his principal. Unless this fact can be made out, however, the party contracting with an agent by parol may sue him primarily, if he be bound by the form of his contract. Thus, a policy of insurance made by an agent in his own name, though for the benefit of the principal, will be considered as the contract of each party.1 But the principal cannot claim that the agency relation has been changed by the fact that the agent has rendered himself personally liable on a contract made on behalf of the principal.2
§ 226. Where, however, the situation and business of the agent indicate that he is contracting in behalf of another person, and not on his own account, and particularly where an agency is avowed, although the name of the principal be not disclosed; the common law will create a responsibility on the part of the principal, although the contract contain no mention of him. Thus, where factors or brokers, whose whole business is that of agency, purchase goods for their principal in their own name, by written contract, the principal will be bound immediately, so that he may sue and be sued thereon.3 So, also, where the master of a ship makes a written contract for repairs, it will be considered as the several contract of both the master and the owner.1 The same exception also governs in the case of a bottomry bond entered into by the master of a ship, and made in his own name.2 And a charter-party, or bill of lading, made by the master, and signed in his own name, in the usual course of the employment of the ship, will bind the owner; and although the owner cannot be sued directly upon such bond or charter-party, because it is not his deed, he is, nevertheless, bound by it.3 Indeed, generally, when an agent contracts in his own name, he only adds his own personal responsibility to that of his principal, wherever the principal would be bound, if the form only of the contract were different.4 In such cases, the equitable doctrine supersedes the strict rules of the common law. And wherever an agent has contracted within the scope of his authority, and the contract would not be binding upon the principal at law, it will be enforced in a court of equity.6