§ 247. We shall next consider the liabilities of agents to third persons. Where an agent contracts in behalf of his principal, he will not be liable to third persons, when credit is given exclusively to the principal.3 Nor will a third person be allowed to set off a debt against the agent in a suit by the principal when he knew the character of the agent, though unaware who his principal was.4 But if credit be given to the agent exclusively, or to both principal and agent, the agent will be personally responsible.5 In most of the cases of
1 Wilson v. Tummon, 6 Scott, N. R. 904; s.c. 6 Man. & Grang. 236; Smethurst v. Taylor, 12 M. & W. 554; Doe v. Goldwin, 2 Q. B. 143.
2 Ramazotti v. Bowring, 7 C. B. (n. s.) 851 (1860), per Erle, C. J.
3 As to proof of usage to establish an agent's personal liability on a contract properly executed by him as agent, see Humphrey v. Dale, 7 El. & B. 266; Fleet v. Murton, Law R. 7 Q. B. 126; Hutchinson v. Tatham, Law R.8C. P. 482 (1873).
4 Semenza v. Brinsley, 18 C. B. (n. s.) 467 (1865).
5 See Hancock v. Fairfield, 30 Me. 299; Chadwick v. Maden, 9 Hare, 188; 12 Eng. Law & Eq. 180; Potts v. Henderson, 2 Carter, 327. But a person cannot escape personal liability by signing his name as agent, if the instrument, taken together, show that he is in fact the principal. Lennard v. Robinson, 5 El. & B. 125 (1855); Tanner v. Christian, 4 El. & B. 591 (1855); Norton v. Herron, Ry. & Mood. 229. In Tanner v. Christian, supra, Wight-man, J., said: "There is no doubt that a person, acting for and on behalf of another, may contract in such terms as to bind himself personally. In each case the question is, whether the intention that he should do so appears. One test is, to see who is, by the provisions of the contract, to act in the performance of it. Now here Christian, though for and on behalf of Norris, for whom perhaps he was merely agent, has made a contract by which he himself is to do all that is to be done. Taking the whole language of the agreement together, it is not Norris, but Christian on behalf of Norris, who agrees to let. . . . It is not a case in which we call in aid any extrinsic fact to construe the agreement; but on the face of it it appears that Christian is to act." In all such cases the question of liability must be determined from a contract, therefore, the principal question is, to whom was the credit given; and this is a question of fact for the jury.1 Where an agent exceeds his authority, he will be personally responsible to the person with whom he is dealing, if the limitations of his authority be unknown to such person,2 or if he guarantee a ratification by his principal of acts which the other party knows to be beyond his authority.3 Thus, where the defendant made an agreement with the plaintiff, who was master of the brig Sir Alexander Mackenzie, in respect to a certain voyage, and described himself as " consignee and agent of the above brig and cargo, on behalf of Mr. Meirelles, merchant, of Liverpool," and the voyage having been performed, an action was brought against the defendant for the proper construction of the whole instrument. See Alexander 0. Sizer, Law R. 4 Exch. 102 (1869); Lindus v. Melrose, 2H.&N. 293; s. c. 3 H. & N. 177. See also Williamson v. Barton, 7 H. & N. 899 (1862); Higgins v. Senior, 8M.&W. 834; Parker v. Winlow, 7 El. & B. 942 (1857); Burton v. Furnis, 3 H. & N. 926 (1858). As to the effect of acceptance by procuration, see O'Reilly v. Richardson, 17 Irish Com. Law, 74 (1865); Stagg v. Elliott, 12 C. B. (n. s.) 373 (1862); Story on Agency, § 72.
1 Story on Agency, § 261, 279; Scrace v. Whittington, 2 B. & C. 11; Iveson v. Conington, 1 B. & C. 160; Cunningham v. Soules, 7 Wend. 106; 3 Chitty on Com. and Manuf. 211, 212. See ante, § 223, 224.
2 Collen v. Wright, 8 El. & B. 647; Weeks v. Propert, Law R. 8 C. P. 427 (1873); Cherry v. Colonial Bank, 6 Moore, P. C. (n. s.) 235 (1869). In such cases the authorities are conflicting whether the remedy against the agent is on the contract, or by action on the case. See Jefts v. York, 4 Cush. 371; s. c. 10 Cush. 395; Abbey v. Chase, 6 Cush. 56; Ogden v. Raymond, 22 Conn. 385; Walker v. Bank of N. Y., 13 Barb. 639; Jenkins v. Hutchinson, 13 Q. B. 744; Bay v. Cook, 2 Zab. 343. See 1 Lans. 381.
3 Smout v. Ilbery, 10 M. & W. 1. In this case Alderson, B., said: "The courts have held that where a party making the contract as agent bond fide believes that such authority is vested in him, but has in fact no such authority, he is still personally liable. In these cases, it is true, the agent is not actuated by any fraudulent motives; nor has he made any statement which he knows to be untrue. But still his liability depends on the same principles as before. It is a wrong, differing only in degree, but not in its essence, from the former case, to state as true what the individual making such statement does not know to be true, even though he does not know it to be false, but believes, without sufficient grounds, that the statement will ultimately turn out to be correct. And if that wrong produces injury to a third person, who is wholly ignorant of the grounds on which such belief of the supposed agent is founded, and who has relied on the correctness of his assertion, it is equally just that he who makes such assertion should be personally liable for its consequences." freight, and the plaintiff proved that Mr. Meirelles had never authorized the defendant to act for him, and rejected the contract, it was held that the defendant was personally liable.1 So, also, where a broker, who had received special instructions to purchase silk of a certain quality, purchased silk of a different quality, he was held to be liable personally in an action for the price.2 So, also, where an agent holds himself out as principal, without disclosing the fact of his agency, or if he exceed his authority,3 he will render himself responsible, because he thereby assumes the credit upon his contract.4 The principal, however, would also be liable, if the act were within the scope of the agent's authority.5 So, also, where agents suppress the name of their principal, though they are known to be agents, they are personally liable.6 And where a party draws a bill and appends to his signature the word "agent," without stating for whom he is agent, he makes himself personally liable;7 and he may sue in his own name.8 And if in fact he have no principal, he will be personally liable; and no subsequent ratification by a stranger will relieve him.9