2 Burrell v. Jones, 3 B. & Ald. 47; Sumner v. Williams, 8 Mass. 162; Bel-den v. Seymour, 8 Conn. 24; Whiting v. Dewey, 15 Pick. 433; Donahoe v. Emery, 9 Mete. 66; Mason v. Caldwell, 5 Gilm. 196. It has, however, been held, in a few cases, that where a person expressly covenants in his representative capacity, "and not otherwise," he will not be personally liable, as no false confidence of security is excited on the part of the purchaser: Thayer v. Wendell, 1 Gall. 37, per Story, J.; Day v. Brown, 2 Ohio, 347; Manifee v. Morrison, 1 Dana, 208; Craddock v. Stewart, 6 Ala. 77.-R.

1 Burrell v. Jones, 3 B. & Ald. 47; Hopkins v. Mehaffy, 11 S. & R. 129; Kirkpatrick v. Stainer, 22 Wend. 244; Taintor v. Prendergrast, 3 Hill, 72; Simonds v. Heard, 23 Pick. 121.-R.

2 In Higgins v. Senior, the point actually decided was, that a defendant could not shift a liability from his own shoulders to that of another, by showing that a contract which purported to be signed on his own account was, in reality, signed as agent for another; and the same has been held in this country, even in cases where the party signed as agent, but not naming the principal: Peritz v. Stanton, 10 Wend. 277; Stackpole v. Arnold, 11 Mass. 27; Alfridson v. Ladd, 12 lb. 175; Bradlee v. Glass Co., 16 Pick. 347. But in Higgins v. Senior, it was further suggested, as had also been done in Jones v. Littledale, that a distinction existed between evidence to discharge a defendant, and evidence to charge an additional party; as, in the latter case, the evidence would not contradict the written instrument, but only show that it bound another party.-r.

It is no defence to an action on the individual note of an agent that it was given for the debt of his principal, and that of this fact the plaintiff had knowledge: Bass v. Randall, 1 Minn. 404; Haverhill Ins. Co. v. Newhall, 1 Allen, 130. A written contract, to which one has without authority affixed the name of another, but not his own, binds neither : Hegeman v. Johnson, 35 Barb. 200.-s.

Principal shall be discharged. But in this case, payment was demanded of the defendant on the several days it became due, and no reason was given him to believe that the broker alone was trusted. The defendant had received a great part of the goods; the right of the vendors was entire unless the defendant had paid the price to them, or to some person authorized by them to receive it. The broker had no such authority; therefore the defendant is liable." In that case, as observed by the Court of Common Pleas, in the subsequent case of Smyth v. Anderson {b), Lord Ellenborough must be considered as having properly decided that the defendant had no right to set up a payment accepted by the brokers contrary to their duty, and not made by him in conformity with the obligation which the contract imposed upon him.

In the case of Smyth v. Anderson (c), just mentioned, Melville ordered of the plaintiffs certain goods, telling them they were for shipment to Bombay, pursuant to orders received. They were in fact ordered for Anderson, and were received by him; but Melville could not say whether, at the time of giving the order, the name of Anderson was mentioned. The invoices, however, sent afterwards, described the goods as "bought on account of Anderson, Bombay, per Melville, London, by Pender & Co., agents" (the plaintiffs). In *payment for those goods, the plaintiffs drew bills upon Melville, which bills were dishonoured. Melville had a general account with Anderson, on which, at the time of his stopping payment, he was debtor to Anderson in a large amount. There was no evidence of any payment by him to Melville applicable to these good in particular; but shortly after the ship(b) 7 C. B. (62 E. C. L. R.) 39.

(c) 18 L. J. (C. P.) 109; 7 C. B. (62 E. C. L. R.) 21, S. C.

Ment of them, Melville sent Anderson an account debiting him with the amount of the bills, and the latter had since, but before they became due, remitted to Melville an amount more than sufficient to cover them. "Melville," said 3Iaule, J., "having become insolvent, Anderson is sued for the price, and the question is, whether it is fair and reasonable he should be so charged. The plaintiffs got what they considered an advantage, the security of Melville, and must be taken to have requested that all might be done that was necessary and incident to that arrangement; and, therefore, the remittance made by Anderson to provide for the bills, which was the natural and proper course to be taken by him, was substantially made with the cognizance and at the request of the plaintiffs; can they then be permitted to call upon the defendant to pay the price of the goods over again ? I think it a clear and satisfactory case of non-liability on the part of the defendant, who, in the course of a transaction to which the plaintiffs themselves were parties, has done that which, substantially, is a payment in the ordinary course of *business. The fact that the money was paid before the bills became due, does not prevent the defendant from availing himself of this defence. When all the parties are living in this country, and the agent has not accepted bills on account of the goods, so that the duty of putting him in funds by a previous remittance does not arise, if the principal pays the broker before the proper time has arrived, and without the privity of the seller, one can perceive the justice of not permitting the principal to set up such premature payments in answer to the seller's claim on him for the price."

The qualification or exception to the rule as to the right of election of the seller is given somewhat differently by Mr. Justice Blackburn, in Armstrong v. Stokes (d), viz., "that nothing has occurred to make it unjust that the undisclosed principal should be called upon to make the payment to the vendor." But he observes that it is not very accurately defined; and the same observation applies to the qualification as given ante, p. *446. It certainly must not be assumed that a mere payment by the principal to his agent, although bond fide, and free from the blame of a premature settlement, will absolve the principal from the duty of seeing that the agent pays the money over to the seller (e). And in Heald v. *Kenworthy, just cited, Parke, B., was strongly of opinion (in which Folloch, C. B., and Alderson, B., concurred) that there was "no authority for saying that a payment made to the agent precludes the seller from recovering from the principal, unless it appears that he has induced the principal to believe that a settlement has been made with the agent," i. e., by the" seller, in consequence of which belief the principal pays the agent. This opinion, indeed, in Armstrong v. Stokes (f), seems to have been thought to narrow the qualification to the seller's right of election too much, for there Mr. Justice Blackburn, in a judgment in which all the authorities are most carefully reviewed, observes that Parke, B., "makes no exception as to the case where the other side made the contract with the agent believing him to be the principal, and continued in such belief till after the payment was made;" and further on he says, "We think that, if the rigid rule thus laid down were to be applied to those who were only discovered to be principals after they had fairly paid the price to those whom the vendor believed to be the principals, and to whom alone the vendor gave credit, it would produce intolerable hardship." In this case, accordingly, where the defendants (the undisclosed principals), after the contract was made, and in consequence of it, bond fide and *without moral blame paid the agent at a time when the plaintiff (the vendor) still gave credit to the agents, and knew of no one else; the Court held that, after that, it was too late for the vendor to recover against the undisclosed principal. It is to be observed, however, that the agents here were commission merchants, not brokers. If they had been the latter, the vendor would not have supposed he was contracting with principals. The opinion, however, of Parke, B., is approved by the Court of Appeal in the more recent cases of Irvine v. Watson (g) and Davison v. Donaldson (h); so that it seems necessary in order to deprive the seller of his right of election that there should have been some conduct on his part which caused the settlement between the principal and his agent; in which case it would be obviously unjust that the seller should have recourse to the principal.