1 King v. Steiren, 44 Perm. St. 99.

2 Nesbit v. Helser, 49 Mo. 383 (1872).

3 lb. See Gillett v. Coram, 7 Kans. 156 (1871). But the broker must find a purchaser able and willing to complete the bargain on the terms required; and if the party have not the means to comply and propose other terms which are not accepted, the broker will not be entitled to a commission. Covington Drawbridge Co. v. Shepherd, 20 How. 227.

4 Story on Agency, § 335-339; Ramsay v. Gardner, 11 Johns. 439; Powell v. Trustees of Newburgh, 19 Johns. 284; D'Arcy v. Lyle, 5 Binn. 441; Hill v. Packard, 5 Wend. 375; Rogers 0. Kueeland, 10 Wend. 218.

5 Adamson v. Jarvis, 4 Bing. 66; Allaire v. Ouland, 2 Johns. Cas. 54, Coventry v. Barton, 17 Johns. 142; Avery v. Halsey, 14 Pick. 174; Fletcher v. Harcot, Hutton, 55; Powell v. Trustees of Newburgh, 19 Johns. 284; Gower v. Emery, 18 Me. 79. See Haskin v. Haskin, 41 111. 197 (1866).

6 Story on Agency, § 341; Pothier, Traite de Mandat, n. 75, 76; Frix-ione v. Tagliaferro, 10 Moore, P. C. 175 (1856).

7 Frixione v. Tagliaferro, 10 Moore, P. C. 175; 34 Eng. Law & Eq. 27.

8 Porter v. Silvers, 35 Ind. 295 (1871).

§ 263. The cases in which an agent can sue third persons in behalf of his principal, may be divided into several classes, in all of which the rights of the two parties are correlative against each other. (1.) Where an express contract in writing is made with the agent, personally, the principal not being named, - as where a charter-party is executed by the master of a vessel in his own name, in behalf of the owner;5 or where a promissory note is given to the agent personally in his own name, though it be for the benefit of the principal;6 or where a negotiable note indorsed in blank is sent by the owner to his agent for collection, and the agent sues as indorsee.7 But if the contract express the agency and name the principal, the suit cannot be brought in the name of the agent; and whenever the instrument, viewed as a whole, plainly indicates that the contract is not made personally with the agent, suit must be brought in the name of the principal.8

1 Dodge v. Tileston, 12 Pick. 328, 332; Savage v. Birckhead, 20 Pick. 167; Sea v. Carpenter, 16 Ohio, 412.

2 See Nisbet v. Helser, 49 Mo. 383 (1872).

3 Stebbins v. Leowolf, 3 Cush. 137.

4 Vernon v. Hankey, 2 T. R. 113; 3 Bro. C. C. 314; Copland v. Stein, 8 T. R. 204; Paley on Agency, by Lloyd, 121, 122, 187; Story on Agency, §349.

6 Humble v. Hunter, 12 Q. B. 310; Schmaltz v. Avery, 16 Q. B. 655; 3 Eng. Law & Eq. 394.

6 Commercial Bank v. French, 21 Pick. 486; Fairfield v. Adams, 16 Pick. 381; Fisher v. Ellis, 3 Pick. 322; Buffum v. Chadwick, 8 Mass. 103. See also Wheelock v. Wheelock, 5 Vt. 433; Joseph v. Knox, 3 Camp. 320; Atkyns v. Amber, 2 Esp. 493; Solomons v. The Bank of England, 13 East, 135, note.

7 Solomons v. The Bank of England, 13 East, 135; Adams v. Oakes, 6 C. & P. 70. See also Story on Agency, § 394, and cases cited; Dugan v. U. S., 3 Wheat. 172.

8 Per Mr. Justice Story, in Story on Agency, § 395, note; Bowen v. Morris, 2 Taunt. 374; Hinds v. Stone, Brayton, 230; Griffith v. Ingledew, 6 S. & R. 429; Amos v. TemperJey, 8 M. & W. 798; Bickerton v. Burrell, 5 M. & S. 383; Rayner v. Grote, 15 M. & W. 359.

§ 264. (2.) Where the agent is the ostensible principal, and the fact of the agency does not appear, he is entitled to sue. So, if a person contract for an unknown and unnamed principal, he may himself sue as principal, unless it appear that the defendant relied upon his character as being only that of agent, and would not have contracted with him as principal, had he known him to be so.1 Where in the contract the agent is stated expressly to be principal, the agent may not only maintain an action, but it is not competent for the real principal, if he be a third party, to sue thereupon.2

§ 265. (3.) Where by usage of trade the agent is authorized to act as owner or principal, and is dealt with as such, he may sue, although he is known to be an agent. And in this class of cases it matters not whether the contract be deemed to be made exclusively with the agent or not.3 Generally speaking, where the agent has a special property or interest in the subject-matter of the contract, or a lien thereon, he would be entitled to sue, - as if he be a factor, or auctioneer, or master of a ship.4

§ 266. (4.) In all cases of torts, where the agent sustains a private and personal injury from the fraud or deceit of a third person, he may maintain an action against him for such wrongful act; and wherever he is induced, by false representations, to pay over money belonging to his principal to a person not entitled to receive it, he may bring an action to recover it back.5

1 Schmaltz v. Avery, 16 Q. B. 655; 3 Eng. Law & Eq. 395.

2 Humble v. Hunter, 12 Q. B. 310; Schmaltz v. Avery, 16 Q. B. 655; 3 Eng. Law & Eq. 394.

3 Story on Agency, § 269, 397, and cases cited.

4 Williams v. Millington, 1 H. Bl. 81, 84; Girard v. Taggart, 5 S. & R. 19, 27; Coppin v. Craig, 7 Taunt. 243; Hudson v. Granger, 5 B. & Al. 27. See post, § 402, 437, 458.

5 Story on Agency, § 416; Stevenson v. Mortimer, 2 Cowp. 806, per Lord Mansfield; Oom v. Bruce, 12 East, 225; Holt v. Ely, 1 Com. Law, 420; 1 El. & B. 795. In this case Lord Campbell said: " I am of opinion that this rule ought to be discharged. I think that Holt, under the circumstances of this case, may well maintain this action for the amount which he paid to the defendant, he (Holt) having been induced to pay the money by the fraud and false representation of the defendant. I am also of opinion that Holt was guilty of negligence, and that he could not have set off this payment, if Lane

§ 267. Ordinarily, the right of the agent to sue is subordinate to that of the principal, and may be superseded or extinguished at any time by his intervention.1 Any defence which would be sufficient to defeat a suit, if brought by the principal, will also be complete against the agent.2 But if a written contract be made exclusively with the agent, who expressly states himself therein to be principal, the real principal would not be entitled to maintain an action thereupon,3 by showing that the professed principal was merely his agent. Yet if the contract contained any indication of agency, the rule would be otherwise.4 The same rule also applies to public agents; in as far as they are not suable, they cannot sue.6

§ 268. Where a person makes a contract in the character and with the profession of agent, for some unknown and unnamed principal, when in fact he is himself the principal, he would be ordinarily entitled to sue in his own name thereon.6 had brought an action against him to recover the amount of the fund with which he had been intrusted. I will even go further, and say, that as it is clear there was a fraud practised by Ely, the defendant, upon Holt, and assuming that there was a general authority to Holt to pay money on Captain Lane's account, I think that in that case either Captain Lane or Holt might maintain this action. Where a man pays money by his agent, which ought not to have been paid, either the agent or the principal may bring an action to recover it back. That is the ground of the decision in Stevenson v. Mortimer. That principle has been adopted by Mr. Justice Story in his work on Principal and Agent; and I consider it a maxim of law, that where a fraud has been practised upon a person, that he should be replaced in the same position as he was before such fraud was practised upon him. I think this case comes within that principle, and that this rule to enter a nonsuit should therefore be discharged." See also 18 Eng. Law & Eq. 424.

1 Coppin v. Walker, 7 Taunt. 237; Coppin v. Craig, 7 Taunt. 243; Morris v. Cleasby, 1 M. & S. 576; Walter v. Ross, 2 Wash. C. C. 283.

2 Atkyns v. Amber, 2 Esp. 493; 3 Chitty on Com. and Manuf. 201, 202, 203, 211; Leeds v. Marine Ins. Co., 6 Wheat. 565; Smith on Merc. Law, 77; Story on Agency, § 404, 405; Solomons v. Bank of Eng., 13 East, 135, n.; De la Chaumette v. Bank of Eng., 9 B. & C. 208; s. c. 2 B. & Ad. 385.

3 Humble v. Hunter, 12 Q. B. 310; Schmaltz v. Avery, 16 Q. B. 655; 3 Eng. Law & Eq. 395.

4 Ibid.

5 Bainbridge v. Downie, 6 Mass. 253; Dugan v. U. S., 3 Wheat. 172, 180.

6 Schmaltz v. Avery, 16 Q. B. 655; 3 Eng. Law & Eq. 393.

Yet if this deceit should operate injuriously as a fraud upon the other party, and the contract were executory, it seems that he could not enforce it.1 And if the person dealing with him as agent relied upon his character as being what he represented it to be, and would not have contracted with him as principal, the same rule would apply.2