Where the principal is named in the memorandum.

Contract made by deed.

Foreign principal.

(o) Bolton Partners v. Lambert, 41 Ch. D. 29-5 (on which ease see the note in Fry. Sp. Perf. 711. 3rd ed.): Re Portuguese Copper Mines, Ld, 45 Ch. D. 16; Re Tiedemann and Ledermann, 1899, 2 Q. B. 66.

(p)Bickerton v. Burrell, 5 M. & S. 383; Rayner v. Grote, 15 M. & W. 359, 365.

(q) Consider Downman v. Wil-liams, 7 Q. B. 103, 111; Lewis v. Nicholson, 18 Q. B. 503: Fairlie v. Fenton, L. E. 5 Ex. 169; Gadd v. Houghton, 1 Ex. D. 357.

(r) Appleton v. Binks, 5 East, 148: Southampton v. Brown. 6 B. & C. 718; Beckham v. Drake, 9 M. & W. 79, 85, 11 M. & W. 315, 317.

(s) Stat. 8 & 9 Viet. e. 106, s. 5, applying to deeds executed after the 1st Oct. 1845.

(t) Hook x. Kinnear, 3 Swanst. 417, n.: Gregory v. William*, 3 Mer. 582, 590; Touche v. Metropolitan, etc. Co., L. R. 6 Ch. 671; Re Empress Engineering Co., 16

Where the principal was not in existence, or was incapable of contracting.

Contracts by-company promoters.

Where the agent contracts without the principal's authority.

Ch. D. 125, 129; Lloyd's v. Harper, 16 Ch. D. 290; He Flavell, 25 Ch. D. 89; see Gandy v. Gandy, 30 Ch. D. 57.

(u) Armstrong v. Stokes, L. R. 7 Q. B. 598, 605; Elbinger Actien-Gesellschaft v. Claye, L. R. 8 Q. B. 313; Hutton v. Bulloch, ib. 331, affirmed, L. R, 9 Q. B. 572.

{x) Gadd v. Houghton, 1 Ex. D. 357.

(y) Kelner v. Baxter, L. R. 2 C."P. 174: Scott v. Ebury, ib. 255, 267.

(a) Kelner v. Baxter, ubi sup.; Re Empress Engineering Co., 16 Ch. D. 125; Re Northumberland Avenue Hotel Co., 33 Ch. D. 16; Bagot, etc. Co. v. Clipper, etc. Co., 1902, 1 Ch. 146: Natal Land, etc. Co. v. Pauline Colliery Syndicate, 1904, A. C. 120, 126. By the Railway Construction Facilities Act, 1864 (stat. 27 & 28 Vict, c. 121), s. 30, in the case of companies incorporated by certificate under that Act, contracts relative to the purchase or taking of lands for the railway, and entered into by the promoters before the incorporation of the company by the certificate, shall be as binding on the company as if they had been entered into by the company. Upon the question whether in any other case a contract made by a promoter before the company's incorporation can be specifically enforced against the company, see Shrewsbury v. North Staffordshire Ry. Co., L. R. 1 Eq. 593, 613 sq.; Fry, Sp. Perf. Sec. 247 - 255, 3rd ed.

(b) Lewis v. Nicholson, 18 Q. B. 503.

In case (2), where in the memorandum the agent professes to contract as an agent for some person interested as principal, hut without disclosing the principal's name, the principal, if he had authorised the contract, may declare himself and enforce the contract; he may also be sued on the contract by the other party, if the other can prove that he authorised the agreement (e). And if when the contract was made the agent was assuming to act, though without authority, for some principal then in existence and capable of being ascertained, such principal may afterwards ratify the contract and sue or be sued thereon. It is thought, however, that if the agent in making the contract had no principal for whom he assumed to act, but entered into the agreement in the hope that he might afterwards find some person willing to adopt it, the agent's act cannot afterwards be ratified by any person as principal (f). The agent's rights and liabilities in the ease which we are considering depend on the intention of the parties as expressed in the memorandum of contract (g). And it appears that if the terms of the memorandum import no move than a statement of the fact, that the agent is the agent of some person not named, he is primâ facie liable upon and can enforce the agreement; for it will not be presumed that the other contractor gave credit to the unknown principal exclusively in exoneration of the known agent (h). And if on the face of the memorandum the agent be liable, he is not at liberty to prove by parol evidence that the other contractor was aware of the principal's name and gave credit to the principal in exoneration of the agent (i). But if the true construction of the memorandum be that the agent contracts only on behalf of the undisclosed principal and not on his own account, he can neither sue nor be sued on the agreement (k); unless in truth he were acting on his own account and were himself the principal in making the contract. In this event he is at liberty to repudiate his character of agent and adopt the agreement as his own (l); and he may be sued thereon by the other party, if the other can prove that he was the real principal (m). If the contract purport to be made on behalf of some undisclosed principal, so as to exclude the agent's liability thereon, and in making the contract the agent were acting without the authority of the person for whom he assumed to act, or without any principal at all, and were not himself the real principal, it appears that he would be liable to the other contractor under the doctrine of implied warranty of authority; for he professed to contract on behalf of some particular principal, although he did not name him (n). And if in such case the agent both falsely and fraudulently represented that he had the authority of some person unnamed to make the contract, he would be liable in an action of deceit (nn).

Where the agency is disclosed, but not the principal's name.

The agent's position.

(c) Collen v. Wright, 8 E. & B.

647; Firbank's Executors v. Humphreys, 18 Q.B.D. 54, 62; Starkey v. Bank of England, l903,A.C. 114; above, p. 755. But the agent is not liable on a warranty of authority where the other party was aware that the agent had no authority to bind the principal, and accepted the agreement for what it was worth subject to the chance of the principal being induced to ratify it: Halbot v. Lens, 1901, 1 Ch. 344. As to the measure of damages, where the agent is so liable, see Godwin v. Francis, L. R. 5 C. P. 295; Re National Coffee Palace Co., 24 Ch. D. 367.