(u) Mahoney v. KekulS, 23 L. J. (C. P.) 54; 14 C. B. (78 E. C. L. R.) 390,
(v) Green v. Koptree, 25 L. J. (Ch.) 297; Deslandes v. Gregory, 20 L. J. (Q. B.) 93; S. C. in Ex. Ch., 30 L. J. (Q. B.) 36.
(x) Lennard v. Robinson, 24 L. J. (Q. B.) 275; 5 E. & B. (85 E. C. L. R.) 125.
But there is this qualification to the right of election (y), namely, that if the state of accounts between the agent and principal have been altered, so that the principal would be [unjustly] subjected to a loss by the other contracting party's election, the right of election is in such case lost. Suppose, for instance, I employ A. to purchase goods, and he purchases them from B. in his own name; now B., when he discovers me to be the real principal, may elect whether he will treat me or my agent A. as his debtor; but if, in the meantime, I have paid A. [under circumstances which would make it unjust for B. to treat me as still his debtor (2)], he will lose that right, since otherwise I should have to pay the price twice over. Still, this qualification is itself subject to a minor one, namely, that the principal cannot, by prematurely and improperly settling with his agent, deprive the other *contracting party of his right of election. Suppose, for instance, as in the case I have just put, that I employ A. to purchase goods, not for ready money, but at three months' credit. A. purchases in his own name from B.; B., before the three months have elapsed, discovers the true state of affairs, and elects to take me as his debtor. I should not be allowed to say, in this case, "You are too late; I have settled with A., my agent." The answer would be, "You had no occasion to do so pending the time of credit; and you cannot, by doing so, deprive B. of his right to elect you as his debtor" (a).1
(y) As already mentioned in the judgment of Lord Tenderden just quoted.
(z) See Heald v. Kenworthy, 10 Ex. 739; 24 L. J. (Ex.) 76; Armstrong v. Stokes, L. R. 7 Q. B. 598; 41 L. J. (Q. B.) 253.
(a) Thomson v. Davenport, supra; and Kymer v. Suwercropp, 1 Camp. 109.
1 [Note by Mr. J. C. Symons ] The cases in which an agent is personally liable, and may be sued on the contract he makes, may be thus classed:In the first place, he is liable, according to the doctrine in Thomson v.
In the case of Kymer v. Suwercropp, Lord Ellen-borough said, "A person selling goods is not confined to the credit of a broker who buys them, but may resort
Davenport, where the principal was not disclosed at the time of the contract; but if he were known, and credit given to him at the time, the agent cannot be afterwards sued, provided he acted within the scope of his authority: Pat-ton v. Brit tain, 10 Tred. 8.
In the second place, the agent is liable, as we have already stated, where he exceeds his authority, or represents himself to have an authority which he has not, the want of authority being unknown to the other party: Jones v. Downman, 4 Q. B. (45 E. C. L. E.) 235; [Dusenbury v. Ellis, 3 Johns. Cas. 70; Meech v. Smith, 7 Wend. 315; Woodes v. Dennett, 9 N. H. 55;] for in such cases the creditor has no remedy against the principal: Wilson v. Bar-throp, 2 M. & W. 863.1 Here again, however, arises a question, as we have seen, how far Smout v. Ibery (supra) is good law, and that the agent is to be held liable where it cannot be proved that he fraudulently misrepresented his authority. But that case clearly decides another very important point, namely, that where a man has been in the habit of dealing with the plaintiff for household goods, the wife is not liable for such as are supplied to her after his death, but before information of his death had been received, she having had originally full authority to contract, and done no wrong in representing her authority as continuing, nor omitted to state any fact within her knowledge, relating to it; the revocation itself being by the act of God, and the continuance of the life of the principal being equally within the knowledge of both parties.
In the third place, an agent is liable for himself and his heirs under seal, for the act of the principal, though he describes himself in the deed as covenanting for and on behalf of such other person : Hancock v. Hodgson, 4 Bing. (13 E. C. L. R.) 269; Appleton v. Binks, 5 East, 148.2
An agent is liable, in the fourth place, where he contracts in writing in his to the principal on whose account they are bought; and he is no more affected by the state of accounts between the two than I should be were I to deliver goods to a man's servant pursuant to his order, by the consideration of whether the servant was indebted to the master, or the master to the servant. If he lets the day of payment go by, he may lead the principal into a supposition that he relies solely on the broker; and if, in that case, the price of the goods has been paid to the broker on account of this deception, *the own name,1 unless it appears on the face of the contract that he did so only as an agent,2 otherwise he will not he allowed to give parol proof that he contracted as agent, so as to relieve himself from responsibility. But parol evidence may nevertheless be given to charge an unknown principal, as it does not deny that the contract is binding on those whom, on the face of it, it purports to bind, but shows that it also binds another by reason that the act of the agent in signing the agreement in pursuance of his authority is, in law, the act of the principal: Higgins v. Senior, 8 M. & W. 844, per Parke, B. See also Jones v. Littledale, 1 N. & P. (36 E. C. L. R.) 677; Magee v. Atkinson, 2 M. & W. 440.
1 Hampton v. Speckenagle, 9 S. & R. 212, unless, of course, the principal should have subsequently ratified the agent's act: Bragg v. Fessenden, 11 111. 544; Fitzsimmons v. Joslin, 21 Vt. 129; but such ratification by the principal must be shown to have been made with a full knowledge of the facts, and an understanding that he would not be liable unless he did so ratify : Fletcher v. Dysart, 9 B. Mon. 413.-R.