1 Kennedy v. Gouveia, 3 Dowl. & Ryl. 503.
2 East India Co. v. Hensley, 1 Esp. 111.
3 Royce v. Allen, 28 Vt. 234 (1856); Meech v. Smith, 7 Wend. 315; Feeter v. Heath, 11 Wend. 478.
4 Owen v. Gooch, 2 Esp. 567; Ex parte Hartop, 12 Ves. 352; Paterson v. Gandasequi, 15 East, 62; Stackpole v. Arnold, 11 Mass. 27; Raymond v. Crown & Eagle Mills, 2 Met. 319; 2 Kent, Comm. lect. 41, p. 629; Smyth v. Anderson, 7 C. B. 21; Peterson v. Ayre, 13 C. B. 364, note; Waring v. Mason, 18 Wend. 425; Story on Agency, § 266, 267; Royce v. Allen, 28 Vt. 234 (1856). See Barry v. Pike, 21 La. Ann. 221.
5 Jones v. Littledale, 6 Ad. & El. 486; Pentz v. Stanton, 10 Wend. 271; Paterson v. Gandasequi, 15 East, 62; Higgins v. Senior, 8 M. & W. 834; Kymer v. Suwercropp, 1 Camp. 109; Raymond v. Crown & Eagle Mills, 2 Met. 319; French v. Price, 24 Pick. 13.
6 Paterson v. Gandasequi, 15 East, 62. Cases cited in the immediately previous notes; Winsor v. Griggs, 5 Cush. 210. A fortiori if he sign his own name without qualification, even if he describe himself as " agent" in the contract. Paice v. Walker, Law R. 5 Exch. 173 (1870); Anderton v. Shoup, 17 Ohio St. 125 (1866); Collins v. Buckeye St. Ins. Co., ib. 215. But see Gaff v. Theis, 33 Ind. 307 (1870); Aspinwall v. Torrance, 1 Lans. 381.
7 Webb v. Mauro, Morris, 488.
8 Johnson v. Catlin, 27 Vt. 87 (1854).
9 Kelner v. Baxter, Law R. 2 C. P. 174 (1866). See Gunn v. London,
§ 248. Where an agent buys goods in the country for a foreign principal, credit is ordinarily to be taken as given to the agent, and not to the principal;1 but this depends upon a proper construction of the intention of the parties.2 So, also, if an agent sell goods for a foreign principal, he would be responsible for a breach of contract by his principal in not delivering them; although the contract should be made in the principal's name, - and the reason of this rule is the improbability that credit in such a case would be given to the foreigner.3 But where the contract is expressly with the foreign principal in writing, and the agent merely signs the contract as his representative and in his principal's name, the agent would not be liable, the reason of the rule failing.4 Thus, where foreign principals made a written contract with the plaintiff, whereby they, by name, agreed to hire him to serve them abroad at a certain rate and for a certain period, and their agent signed the contract for them in London, "for Vacher & Tilly, -Charles Kekule," it was held, that the agent did not thereby render himself personally responsible for the wrongful dismissal of the plaintiff by his foreign principals.6 etc, Ins. Co., 12 C. B. (n. s.) 694 (1862); Payne v. New South Wales, etc, Nav. Co., 10 Exch. 283; Scott v. Ebury, Law R. 2 C. P. 255 (1867).
1 Thomson v. Davenport, 9 B. & C. 87; Lennard v. Robinson, 5 El. & B. 125 (1855); Risbourg v. Bruckner, 3 C. B. (n. s.) 812 (1858); Green v. Kopke, 18 C. B. 549; Peterson v. Ayre, 13 C. B. 353. Where the agents of a foreign principal effected a purchase of corn in their own names, paid the amount, and received the sum paid from the principal, he having ratified the contract, it was held that he could not recover the sum paid to the agents, on discovering that the corn had already been sold in foreign waters, before the purchase by the agents. Risbourg v. Bruckner, 3 C. B. (n. s.) 812 (1858).
2 Green v. Kopke, 18 C. B. 549 (1856). See Paice v. Walker, Law R. 5 Exch. 173 (1870); Reid v. Dreaper, 6 H. & N. 813 (1861).
3 Thomson v. Davenport, 9 B. & C. 87; Smyth v. Anderson, 7 C. B. 21; Wilson v. Zulueta, 14 Q. B. 405; Mahony v. Kekule, 14 C. B. 390; 25 Eng. Law & Eq. 280.
4 Mahony v. Kekule, 14 C. B. 390, per Jervis, C. J.; Peterson v. Ayre, 13 C. B. 353; 24 Eng. Law & Eq. 382; Smyth v. Anderson, 7 C. B. 21. See Armstrong v. Stokes, Law R. 7 Q. B. 605 (1872); Hutton v. Bullock, LawR. 8Q. B. 335(1873).
5 Mahony v. Kekule, 18 Jur. 314; 25 Eng. Law & Eq. 280; 14 C. B. 390. In this case Jervis, C. J., said: "I think this is a very clear case, and that there ought to be no rule. No doubt, ordinarily, the question arising on a contract is one of intention, and that intention, it may be, is frequently to to make any difference whether there were mala fides in the transaction, or whether the misrepresentation were simply by mistake and without fraudulent intention,- in neither case would the agent be liable on the contract,1 unless, perhaps, charter-party itself, as a party to it. No reported case has decided that a party so circumstanced can be sued on the instrument itself. Mr. Justice Story, in his book on the Law of Agency, p. 226 (ed. 1839), in a note, states that the decisions in the American courts are conflicting on this point, and that in England it is held, that the suit must be by a special action on the case (citing Polhill v. Walter, 3 B. & Ad. 114). That case does not, perhaps, establish the broad proposition; for the contract was a bill of exchange -an instrument differing in many respects from ordinary contracts. But, even in the case of a bill of exchange, the Court of Exchequer, in Wilson v. Barthrop (2 M. & W. 863), did not at once repudiate the possibility that an agent might be so liable. The case, however, went off, on the ground that he might have had authority to bind the principal, and did not appear to have acted mala fide.
§ 249. But although an agent who acts without authority renders himself personally liable, a question arises whether he would be liable in an action on the contract itself, or only in a special action for damages, which does not seem to be settled. The weight of authority, however, seems to be in favor of the rule as laid down in a recent case in England, that where a person acts as agent, and so names himself in an instrument, he cannot be made a party to the instrument, and be sued upon it, unless it be shown that he was the real principal; although he would be liable in a different form of action for damages resulting from his misrepresenting himself to have authority to act as agent when he had no authority.1 Nor would it seem be. gathered from the contract and other circumstances; but where, as in this case, the contract is in writing, and clear upon the face of it, we must look to the contract alone. Where an agent in England buys for a foreigner resident abroad, a long series of decisions has established that the agent is generally to be considered as pledging his own credit, because it is highly improbable that the seller would have given credit to the foreigner. But where the contract is made in writing, expressly with the foreigner, and not with the agent, the latter is not liable. But it is argued, that because the agent in this case has signed the contract, he is therefore to be liable. That does not at all follow. Kekule here represents himself as signing, not on his own account at all, but for Vacher & Tilly, professing to bind them, and if signing within the scope of his authority, actually binding them. Wilson v. Zulueta is altogether distinguishable. The decision there proceeded upon the particular words of the contract, and the court held that Zulueta, though contracting on behalf of a foreign principal, had, by the terms of the contract, made himself liable. In the present case Kekule signs, representing Vacher & Tilly, and not at all on his own account; it is just the same as if he had signed the name. The verdict was, therefore, rightly entered for the defendant, on the first issue, and there will be no rule." See also Rogers v. March, 33 Me. 106. See 5 Gray, 557. " Whenever any person, especially one who resides abroad, intrusts another with the general management of his property, it would be highly inconvenient if he did not invest such agent with a general authority to receive for him the moneys which are paid to the agent in the course of such management." Per Byles, J., in Webber v. Granville, 9 C. B. (n. 8.) 883 (1860).