SALE AND WARRANTY BY AN AGENT. 



119 



where a contract is signed by one who professes to be sign- 

 ing " as agent," but who has no principal existing at the 

 time, and the contract would be wholly inoperative unless 

 binding upon the person who signed it, he is personally 

 liable on it {m). 



Where it clearly and expressly appears, that a person 

 really acting as agent fairly contracts as such agent in the 

 name of his principal, and professes to make that principal 

 liable, the agent cannot be sued upon the contract (w). 



But he may be sued so as to make him liable in damages, 

 for the loss sustained by the person with whom he has 

 entered into the contract (h). 



The rule of law is, that, if an agent is guilty of fraud 

 in transacting his principal's business, the principal is re- 

 sponsible (o) ; but the agent must be acting within the 

 scope of his authority and in the course of his employ- 

 ment (p). 



Nor is there any difference in its effect between a mis- 

 representation made by an agent, which is collateral to the 

 contract, and one which is embodied in the contract, the 

 fraud of the agent in either case, if committed in the course 

 of his employment, rendering the contract voidable as 

 against the principal, without its being shown that he was 

 privy to it (q). 



A master sent his servant with a horse to a fair, at such 

 a distance that the servant was obliged to put the horse 

 up for the night ; and the servant put him up in a stable 

 belonging to a tenant of his master. The horse was 

 glandered, and the tenant brought an action against the 

 master for damages sustained by him in consequence of the 

 loss of horses and cattle by infection. It was held by the 

 Court of (Session in Scotland, that placing the horse m the 

 tenant's stable was an act done by the servant in the proper 

 execution of his duty, and for which the master was liable, 

 upon proof merely of the servant's knowledge of the disease (/•) . 



Where he 

 cannot be 

 sued on the 

 contract. 



But is liable 

 in damages. 



Principal 

 answerable for 

 his fraud. 



Misrepresen- 

 tation col- 

 lateral to 

 contract. 



Damage 

 caused by his 

 nesrligenee. 



(m) Kelner v. Baxter, L. S., 2 

 C. P. 174; 36 L. J., C. P. 94. 



(») Lewis V. Xieholson, 21 L. J., 

 Q. B. 316. 



(a) See per Parke, B., Murray 

 V. Harm, 2 E.x. 539 ; Cornfoot v. 

 Fowke, 6 M. &W. 358 ; Maekaij v. 

 Commercial Bank of NeiD Brunswiek, 

 L. R., 6P. C. 394; 43 L. J., C. P. 

 31. 



ip) Coleman \. Riches, 16 C. B. 

 104- Udellv.J.therton,7U.&jS.112. 



(q) Barwick t. Bnglish Joint 

 Stock Bank, L. S., 2 Ex. 259, 265 ; 

 Swift Y. Wintcriotham, L. R., 8 

 Q,. B. 244, 254; Mackay v. Commer- 

 cial Bank of New Brunswick, L. R., 

 5 P. C. 394, 411, 412; 43 L. J., 

 P. C. 31 ; and see Swire v. Francis, 

 3 App. Cas. 106; 47 L. J., P. C. 

 18 ; Ifeir v. Barnett, 3 Ex. D. 32. 



()•) Balrcl Y. Graham, 14 Court of 

 Sess. (Sco.) 615. 



