§ 252. Agents are also responsible, personally, when there is no other person who can be made legally responsible as a principal, upon the ground that he who contracts in his own name, as agent of a person incapable of contracting, must be presumed to intend to bind himself; and also, because the party with whom the agent contracted would otherwise have no remedy.1 Thus, if an agent signed a note "as guardian of A. B.;" or as "trustee of A. B.;" or as "executor of A. B.;" he will render himself personally liable; because neither the ward in the first case, nor the trustee in the second, nor the person deceased in the last, could be personally and primarily liable.2 Yet if persons consent to deal with an agent, without relying upon his personal credit and responsibility, but upon the faith that they will be repaid by the principal, whether the principal be legally bound or not, the agent will not be liable.3 § 253. The liability of an agent may also arise by implication from his acts; or from the general usage or habits of the particular parties. The general rule is that the party to whom credit is knowingly and exclusively given is liable; and if it be given to both parties, both parties are responsible.4 An exclusive credit to the agent is sometimes so strongly inferred from the circumstances, as to afford a presumption of law; as, where a factor buys and sells goods for a principal in a foreign country.5 So, also, in some particular agencies, as in that of a factor and master of a ship, a double responsibility will be presumed.6 This presumption can, however, be disproved, and
1 Simonds v. Heard, 23 Pick. 124; Hodgson v. Dexter, 1 Cranch, 345; Freeman v. Otis, 9 Mass. 272.
2 Macbeath v. Haldimand, 1 T. R. 180; Rice v. Chute, 1 East, 579; Myrtle v. Beaver, 1 East, 135; Gidley v. Lord Palmerston, 7 Moore, 91; s. c. 3 Br. & B. 275; post, § 254.
3 Simonds v. Heard, 23 Pick. 124.
4 Waring v. Mason, 18 Wend. 425; Clealand v. Walker, 11 Ala. 1058; Franklyn v Lamond, 4 C. B. 637; Wilder v. Cowles, 100 Mass. 487. See Hutchinson v. Tatham, Law R. 8 C. P. 482 (1873).
5 Alford v. Eglisfield, Dyer, 230 b; Paley on Agency, by Lloyd, 378, 379; Talbot v. Godbolt, Yelv. 137; 2 Kent, Comm. lect. 41, 629, 630, 3d ed.; Jones v. Littledale, 6 Ad. & El. 486; Norton v. Herron, 1 C. & P. 648; s. c. Ry. & Mood. 229; Leadbitter v. Farrow, cited in Bayley on Bills, ch. 2, § 7, 5th ed.; s. c. 5 M. & S. 345; Le Fevre v. Lloyd, 5 Taunt. 749; Goupy v. Harden, 7 Taunt. 159; Lucas v. Groning, 7 Taunt. 164; Stackpole v. Arnold, 11 Mass. 27; Newhall v. Dunlap, 14 Me. 180.
6 Stackpole v. Arnold, 11 Mass. 27; 1 Emerigon, Assur. ch. 5, § 4, p. 139; Story on Agency, § 272; Marsh, on Insur. B. 1, ch. 8, § 2, p. 292.
7 Thomas v. Bishop, 2 Str. 955.
8 Meyer v. Barker, 6 Binn. 228, 234; Stone v. Wood, 7 Cow. 453; Story on Agency, § 155, 156, 157, 161, 272, 273.
1 Layng v. Stewart, 1 Watts & Serg. 222.
2 Thacher v. Dinsmore, 5 Mass. 299; Forster v. Fuller, 6 Mass. 58; Sumner v. Williams, 8 Mass. 162; Hills v. Bannister, 8 Cow. 31; Childs v. Monins, 2 Br. & B. 460; Lambert v. Knott, 6 Dowl. & Ryl. 122; King v. Thorn, 1 T. R. 487; Parrott v. Eyre, 10 Bing. 283; Horsley v. Bell, 1 Bro. C. C. 101, note; s. c. Ambler, 770; Eaton v. Bell, 5 B. & Al. 34; Higgins v. Livingstone, 4 Dow, 355.
3 Smith on Merc. Law, 79; 2 Kent, Comm. p. 630, 631, 3d ed.; Burls v. Smith, 7 Bing. 705; Tobey v. Claflin, 3 Sumner, 379; Parrott v. Eyre, 10 Bing. 283. See Aspinwall v. Torrance, 1 Lans. 381.
4 Paley on Agency, by Lloyd, 368, 370, 371; Smith on Merc. Law, 79; Owen v. Gooch, 2 Esp. 567; Ex parte Hartop, 12 Ves. 352; Addison v. Gandassequi, 4 Taunt. 575; Paterson v. Gandasequi, 15 East, 62; Thomson v. Davenport, 9 B. & C. 78, 88, 90. See Armstrong v. Stokes, L. R. 7 Q. B. 598 (1872).
5 Gonzales v. Sladen, Bull. N. P. 130; 2 Liverm. on Agency, 249; Paley on Agency, by Lloyd, 248, 273; Paterson v. Gandasequi, 15 East, 62; Thomson v. Davenport, 9 B. & C. 78; Houghton v, Matthews, 3 Bos. & Pul. 489; De Gaillon v. L'Aigle, 1 Bos. & Pul. 368.
6 1 Bell, Comm. § 418, p. 398, 4th ed.; Abbott on Shipping, pt. 2, ch. 2, proof of exclusive credit must always be matter of evidence, dependent on the circumstances of each particular case.1 It is the duty of the agent, if he would avoid personal liability, to disclose his agency, and not of others to discover it; and if he fails to do so, and deals with persons unaware of his agency, he must answer personally for the debts he contracts.2 But an action cannot be brought against both principal and agent in any of these cases.3
§ 254. The foregoing rules, with regard to the liability of agents, apply exclusively to cases of private agency. The doctrine in relation to agents contracting in behalf of the government, or of the public, is, that such agents will not be personally bound upon their contracts, as to third persons, unless they expressly make themselves liable; or, at least, unless there be a manifest intention between the parties to create a personal responsibility on the part of the agent.4 The reason of this rule is, that no private person can be presumed to have assumed any liability in respect of the contracts of the government; and no person can be presumed to have intended to trust to him personally, inasmuch as the ability of the government to pay its just debts is vastly greater than that of any private individual can possibly be. This principle applies not only to simple contracts, but to specialties executed by agents of the government, under their own seals and names.6
§ 3, p. 91 (ed. 1829); ib. § 4, p. 93; ib. § 5, p. 95; Pothier on Obligations, by Evans, 448.
1 Hussey v. Allen, 6 Mass. 163; Rich v. Coe, Cowp. 636; Leonard v. Huntington, 15 Johns. 298; Marquand v. Webb, 16 Johns. 89; Garnham v. Bennett, 2 Str. 816; James v. Bixby, 11 Mass. 34; Hussey v. Christie, 9 East, 432; 3 Kent, Comm. lect. 46, p. 161, 3d ed.; 1 Bell, Comm. § 434, p. 413.