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of his principal, and discloses his name at the time, he is not personally liable, not even though he should take a note for the goods sold, payable to himself. But if a person would excuse himself from responsibility on the ground of agency, he must show that he disclosed his principal at the time of making the contract, *and *631 that he acted on his behalf, so as to enable the party with whom he deals to have recourse to the principal, in case the agent had authority to bind him.b And
sistent with the summary view taken in this lecture of the law of agency, to enter into a detail of the particular responsibilities of agents. We must be content to state generally the principle that the agent is liable to his principal for all losses and damages arising from violations of his duty as agent; by reason of misconduct, delinquency, stretch or abuse of power, or negligencies, provided the loss or damage be reasonably attributable to the same. The illustrations of the general principle are to be seen in the authorities stated or referred to in the treatises at large or agency, and especially in Livermore on Agency, ch. 8, Paley on Agency, by Lloyd, passim, and particularly p. 7–20.46.55—100. 130-149. 212240. 294—304. 335–342. 386—390, in Story on Agency, ch. 8. and in Sedgwick on the Measure of Damages, as between principal and agent, Treatise, ch. 12.
• Owen v. Gooch, 2 Esp. N. P. Rep. 567. Rathbone v. Budlong, 15 Johns. R. 1. Goodenow v. Tyler, 7 Mass. R. 36. Greely v. Bartlett, 1 Greenleaf's R. 172. Corlies v. Cumming, 6 Cowen's R. 181. The agent is not liable individually, if he draws a bill of exchange which is protested, provided he declares himself at the same time to be the agent of the draw
Zacharie v. Nash, 13 Louisiana R. 20. The agent is personally liable, though he discloses the name of his principal, if he signs a contract which does not show upon the face of it that he contracts as agent. Mills v. Hunt, 20 Wendell, 431. But if he drew the bill in his own name, without stating his agency, he is personally liable, though the payee knew he was but an agent. Nowhall v. Dunlap, 2 Shepley, 180, or Maine R. vol. xiv. p. 180. He must disclose his principal's name, though he sell as auctioneer, or he will be personally liable. Mills v. Hunt, 20 Wendell, 431. If he acts simply in his own name he binds himself and not his principal. This is the general rule, but controlled by circumstances. Bank of Rochester v. Monteath, 1 Denio, 402.
o Mauri v. Hefferman, 13 Johns. Rep. 58. Seaber v. Hawkes, 5 Moore f Payne, 549. Ormsby v. Kendall, 2 Arkansas Rep. 338. Mr. Justice Story, in his Treatise on Agency, 2d edit. sec. 268. 290, lays down the rule that agents or factors for merchants residing in foreign countries, are personally liable on contracts made by them for their principals, and this
if the agent even buys in his own name, but for the benefit of his principal, and without disclosing his name, the
without any distinction, whether they describe themselves as agents or not. The legal presumption is, that the credit is given to the agent exclusively The supreme court of New York, in Kirkpatrick v. Stainer, adhered how. over to the old rule, and held that the agent was not personally responsible when he appeared in the transaction as an agent only, and dealt with the plaintiff in that known character. The court held, that there was no distinction known to our law on this point, between an agent acting for a foreign and for a domestic house. This decision was affirmed in the court of errors, in December, 1839, 22 Wendell's R. 244. Mr. Senator Ver. planck gave the opinion of the court of errors, and he examined the question with learning and ability. He held that there was no general presumption known to our law and commercial usages, that the credit in such cases was given exclusively to the agent, and that the English cases on which the presumption as a settled rule of law was deduced in the treatise referred to, were of recent origin, and founded on special or local usage in England and one not adopted here. He cited Eyre, Ch. J., in De Gaillon v. L'Aigle, 1 B. $ Puller, 368. Bayloy, J., in Patterson v. Grandessequi, 15 East, 70. Lord Tenterden, in Thompson v. Davenport, 9 B. g. Cress. 78. Lloyd's Notes to Paley on Agency. He questioned the policy of the rule that credit on sales or consignments was not presumed to be given to well established foreign houses, but to temporary agents in exoneration of their principals ; and that until the course of business had established such a rule here us well known in mercantile usage and practice, it was wisest to adhere to the general law of agency, holding the known principal responsible when the agent discloses his name and acts avowedly and authorizedly on his behalf, and leaving it to the discretion of the American trader to obtain the security of the factor or agent, whon he judges it best. In Taintor v. Prendergrast, 3 Hill, 72, it was admitted, that there may be a clear intent shown to give an exclusive credit to the agent, and that is the principal reside in a foreign country, that intent may be inferred from the custom of trade. The supreme court of Louisiana, in the Newcastle M. C. v. Red River R. R. Co., 1 Rob. Lou. R. 145, followed the rule laid down by Mr. Justice Story, and it was also followed in McKenzie v. Nevius, 22 Maine R. 138. In the opinion of Mr. Justice Bliss, in the case of Hardy v. Fairbanks, in the supreme court of Nova Scotia, at Halifax, in April, 1847, this question arose and was discussed, and the conclusion of the learned judge seemed to be, that the home principal when discovered will be liable in all cases unless he can discharge himself, but that a clear case of liability must be established against the foreigner, for the presumption will be in his favour that he is not liable, and the onus of proof will rest with the seller. The agent may be deemed always responsible for the protection of the seller, and the lia.
principal is also bound as well as the agent, provided the goods come to his use, or the agent acted in the business intrusted to him, and according to his power. The attorney who executes a power, as by giving a deell, must do it in the name of his principal; for if he executes it in his own name, though he describes himself to be agent or attorney of his principal, the deed is held to be void; and the attorney is not bound, even though he had no authority to exceute the deed, when it appears on the face of it to be the deed of the principal.b But if the agent binds himself personally, and engages expressly in his own name, he will be held responsible, though he should,
bility of the foreign principal becomes a question of evidence and presumption, and as to the remedy of the foreign principal and of the vendor against each other, that must be a question of evidence and the case which they can generally establish.
. Nelson v. Powell, 3 Doug. Rep. 410. Upton v. Gray, 2 Greenleaf's Rep. 373. Thompson v. Davenport, 9 Barn. f- Cress. 78. Cothay v. Fennell, 10 Ibid. 671. Beebee v. Robert, 12 Wendell'8 Rep. 413. By acting in his own name, the agent only adds his personal obligation to that of the person who employs him. This was a principle in the Roman law, and it applies equally to our own. Dig. 14. 3. 3. 17. Pothier, Traité des Oblig. No. 82. Hopkins v. Lacouture, 4 Miller's Louis. Rep. 64. Hyde v. Wolf, Ibid. 234. In Andrews v. Estes, 2 Fairfield, 267, it was held that the rule in Combe's case, that an agent binds himself, and not his principal, unless he uses the name of his principal, applies only to sealed instruments. In other contracts it is sufficient if it appear in the contract that he acted as agent, and meant to bind his principal. Evans v. Wells, 22 Wendell's Rep. 324, S. P.
5 Combes' case, 9 Co. 76. Frontin v. Small, 2 Ld. Raym. 1418. Wilks 4. Back, 2 East's Rep. 142. Gwillim's Bacon's Abr. tit. Leases, J. sec. 10. Bogart v. De Bussy, 6 Johns. Rep. 94. Fowler v. Shearer, 7 Mass. Rep. 14. 19.
Stinchfield v. Little, 1 Greenleaf's Rep. 231. Hopkins v. Mehatty, 11 Serg. f Rawle, 126. Smith v. Perry, 1 Harr. f. M'Hen. Rep. 706. Harper v. Hampton, 1 Harr. & Johns. Rep. 622. Townsend v. Corning, 23 Wendell, 435. In the American Jurist, No. 5. 71–85, there is a very critical examination of all the cases, and especially of Combe's case, the great leading case for the doctrine in the text, by Mr. Hoffman, of Baltimore, the learned author of the Legal Outlines. But in the state of Maine, by act of 1823, a deed by an agent in his own name is valid, provided he had authority, and it appears n the face of the deed that he meant to execute the authority.
in the contract or covenant, give himself the description or character of agent.a And though the attorney, who acts without authority, but in the name of the principal, be not personally bound by the instrument he executes,
if it contain no covenant or promise on his part, *632 yet there is a remedy *against him by a special ac
tion upon the case, for assuming to act when he had no power.b If, however, the authority of the agent be coupled with an interest in the property itself, he may contract and sell in his own name. This is illustrated in various instances, as in the cases of factors, masters of ships and mortgagees. The case of the master of a ship, is an exception to the general rule, and though he contracts within the ordinary scope of his powers, he is, in general, personally responsible, as well as the owner, upon all contracts made by him for the employment, repairs and supplies of the ship. This is the rule of the maritime law, and it was taken from the Roman law, and is founded on commercial policy.d But it is of course competent for the parties to agree to confine the exclusive credit, either to the owner, or to the master, as the case
When goods have been sold by the factor, the owner
Appleton v. Binks, 5 East's Rep. 148. Forster v. Fuller, 6 Mass. Rep. 58. Duvall v. Craig, 2 Wheat. Rep. 56. Tippets v. Walker, 4 Mass. Rep. 595. White v. Sinner, 12 Johns. Rep. 307. Stone v. Wood, 7 Cowen's Rep. 453. Fash v. Ross, 2 Hill's S. C. Rep. 294.
o Long v. Colburn, 11 Mass. Rep. 97. Harper v. Little, 2 Greenleaf's Rep. 14. Delius v. Cawthorn, 2 Dev. N. C. Rep. 90. Emerigon, Traité des Contrats à la Grosse, tom. ii. p. 458. 461. 468, lays down the rulo, and applies it to the captain of a ship, who, he says, is personally answerable, if he draws a bill in his character of agent, without authority.
e Paley on Agency, by Lloyd, 207, 208. 288, 289. Story on Agency, 2d edit. sec. 164.
a Rich y. Coo, Cowper's Rep. 636. 639. Farmer v. Davis, 1 Terin, 109. Abbott on Shipping, part 2. ch. 2 and 3. Emerigon, tit. 2. 448. Dig. 14. 1. Story on Agency, 2d edit. sec. 294. 296. See infra, vol. 3.
• Story on Agency, 2d edit. sec. 296.
is entitled to call upon the buyer for payment before the money is paid over to the factor; and a payment, to the factor, after notice from the owner not to pay, would be a payment by the buyer in his own wrong, and it would not prejudice the rights of the principal.a If, however, the factor should sell in his own name as owner, and not disclose his principal, and act ostensibly as the real and sole owner, the principal may nevertheless afterwards bring his action upon the contract against the purchaser, but the latter, if he bona fide dealt with the factor as owner, will be entitled to set off any claim he may have against the factor, in answer to the demand of the principal.b When the party dealing with an agent, and with knowledge of the agency, elects to make the agent his debtor, he cannot afterwards have recourse against the principal.c
There is a distinction in the books between public and private agents, on the point of personal responsibility. If an agent, on behalf of government, makes a contract, and describes himself as such, he is not personally bound, even though the terms of the contract be such as might, in a case of a private nature, involve him in a personal obligation.d The reason of the distinction is, that *it is not to be presumed that a public agent meant *633 to bind himself individually for the government; and
· Lisset v. Reeve, 2 Atk. Rep. 394.
b Rabone v. Williams, cited in 7 Term Rep. 360, note. George v. Claggell, Ibid. 359. Gordon v. Church, 2 Caines' Rep. 299. Hogan v. Shorb, 24 Wendell, 458. Taintor v. Prendergast, 3 Hill, 72. Chambre, J., in 3 Bos. g Pull. 490. Seignior & Wolmer's case, Godb. 360. Story on Agency, 2d ed. sec. 420, 421.
• Patterson v. Gandasequi, 15 East's Rep. 62. Addison v. Gandasequi, 4 Taunt. Rep. 574.
a Macbeath v. Haldimand, 1 Term Rep. 172. Unwin v. Wolseley, Ibid. 674. Gidley v. Lord Palmerston, 3 Brod. f Bing. 572. Brown v. Austin, 1 Mass. Rep. 208. Dawes v. Jackson, 9 Mass. Rep. 490. Hodgson v. Dexter, 1 Cranch's Rep. 345. Walker v. Swartwout, 12 Johns. Rep. 444. Rathbone v. Bublong, 15 Ibid. 1. Adams v. Whittlesey, 3 Conn. Rep. 560. Stinchfield v. Little, 1 Greenleaf's Rep. 231. Enloe v. Hall, 1 Hum. phrey's Tenn. Rep. 303.