§ 269. Rights of principals. Inasmuch as the principal is bound by the acts and contracts of his agents, within the scope of their authority, he has, also, a reciprocal right against third persons, coextensive with his own liability. Nor does it matter
Presented himself as principal, and the contract be with him expressly in such character.1 In such excepted cases the principal can neither sue nor be sued.2
1 Rayner v. Grote, 15 M. & W. 359.
2 In Schmaltz v. Avery, 16 Q. B. 655; 3 Eng. Law &Eq. 393, an action on a charter-party not under seal, against the defendant, a ship-owner, for not taking the cargo on board, according to the charter-party, Patteson, J., said: "The question raised on the plea of non-assumpsit is, whether the action will lie at the suit of the present plaintiff. The charter-party, in terms, states that it is made by Schmalz & Co., the plaintiffs, as agents for the freighter. It then states the terms of the contract, and concludes with these words: ' This charter-party being concluded on behalf of another party, it is agreed that all responsibility on the part of Schmalz & Co. ceases as soon as the cargo is shipped.' The declaration treats the charter-party as made between the plaintiff and the defendant, without mentioning the character of the plaintiff as agent, and without any reference to the concluding clause, thereby treating the plaintiff as principal in the contract.
"At the trial it was proved that the plaintiff was, in point of fact, the real freighter. No objection was taken to the admissibility of the evidence by which that fact was established; but at the close of the plaintiff's case it was objected, that he was concluded by the terms of the charter-party, and fixed with the character of agent; so that he could sue only in that character, and consequently that there was a variance between the declaration and the proof. A verdict was found for the defendant, with liberty to enter a verdict for the plaintiff for £5 10s., if the court should be of opinion that he was entitled to sue as principal, notwithstanding the terms of the charter-party; and a rule nisi was obtained so to enter it. We are of opinion that the rule must be made absolute. It is conceded that if there had been a third party who was the real freighter, such third party might have sued, although his name was not disclosed in the charter-party; but the question is, whether the plaintiff can fill both characters of agent and principal, or rather whether he can repudiate that of agent and adopt that of principal, both characters being referred to in the charter-party, but the name of the principal not being therein mentioned.
"The cases principally relied on for the defendant were Bickerton v. Bur-rell, 5 M. & S. 383, and Rayner v. Grote, 15 M. & W. 359, in both which cases the supposed principal was named in the instrument of contract; also the case of Humble v. Hunter, 12 Q. B. 310; 12 Jur. 1021. In the case of Bickerton v. Burrell, the plaintiff, on the face of the contract, professed to enter into it as agent for C. Richardson. At the trial, C. Richardson was called to prove that her name was used without her knowledge, and that she had nothing to do with the contract. Lord Ellenborough refused to receive the evidence, and nonsuited the plaintiff. A rule nisi to set aside the nonsuit was obtained, but, upon argument, was discharged, on the ground that a person who has exhibited himself as agent for another, whom he names, cannot at once throw off that character and put himself forward as principal, without any communication or notice to the other party. All the judges relied on the want of such notice, which seems to have been the chief ground of the decision; for they considered that the defendant was thereby placed in great difficulty, as he had contracted, in point of law, with Richardson, and not with the plaintiff, and might have no means of ascertaining or even conjecturing that she was not the real party. The soundness of that ground of decision was somewhat doubted in the late case of Rayner v. Grote. There the plaintiff contracted as agent for Johnson, but was, in truth, himself the principal; he sued the defendant for not accepting and paying for goods. The defendant had accepted and paid for a great part of the goods sold, and knew, before he refused the residue, that the plaintiff was the real principal; and so the case was distinguishable from that of Bickerton v. Burrell upon the very ground on which that decision proceeded, and the plaintiff was held to be entitled to sue. The case of Humble v. Hunter was an action by Grace Humble, on a charter-party signed by her son, J. C. Humble, in which he was described as the ' owner of the good ship or vessel called the Ann.1 There the son was called at the trial, and, after objection taken to his admissibility, proved that he executed as agent for the plaintiff, and the plaintiff had a verdict. The court, however, granted a new trial, on the ground that it was not competent for a third party to come in and claim to be the principal, and so contradict the express statement of the contract itself. The case turned upon the form of the contract; for it was conceded, that if the words ' owner of the good ship,1 etc, had been omitted, the plaintiff might have sued, on showing that she was the real owner, and that the son was her agent only. Such evidence would' not have contradicted the contract, but would only have let in a third party who was really interested, in conformity with the current of authorities in cases of contracts executed by agents, and in their own names. The case of Jenkins v. Hutchinson, 13 Jur. 763, was also cited for the defendant, but it proceeded on a different ground, and is not applicable to the present question. There the defendant was sought to be charged as principal on a charter-party, executed ter whether he were named or known to be the principal, nor whether the fact of agency were known.1 He may, therefore, by him, on the face of it, as agent for Barnes; he had, in truth, no authority from Barnes, nor was he himself interested at all; and the court held that he could not be sued as principal without showing that he really was so.