SALE AND WARRANTY BY AN AGENT. 



121 



resolving 'it, eyidence of custom and usage will be ad- 

 missible (5). 



Where a person describes himself in a written instru- 

 ment as the agent of an unnamed principal, it is com- 

 petent for the party with whom he contracts to show that, 

 although described as agent, he is in fact the principal (c). 

 But there is a distinction between cases where an agent in 

 effecting a contract for the purchase of goods does not dis- 

 close the existence of a principal at all, and cases where he 

 discloses that he has a principal but does not give his 

 name ; and it has been held that in the latter class of cases 

 the vendor may have recourse to the principal though he 

 has bond fide paid the agent for the goods, unless there has 

 been such conduct on the vendor's part, e.g. delay in apply- 

 ing to the principal, as might justify the principal in con- 

 cluding that the vendor was not looking to his credit but to 

 that of the agent {d). 



Although the rule of law is, that where a contract is 

 made by an agent, the principal may come in and take 

 the benefit of it, that doctrine cannot be applied where 

 the agent contracts as principal (e). Thus, Lord Ellen- 

 borough said, " If one partner makes a contract in his in- 

 dividual capacity, and the other partners are willing to take 

 the benefit of it, they must be content to do so, according 

 to the mode in which the contract was made " (/'). Thus, 

 in assimipsit on a charter-party executed, not by the plaintiff, 

 but by a third person, who in the contract described himself 

 as " owner " of the ship, it was held, that evidence was not 

 admissible to show that such person contracted merely as 

 the plaintiff's agent (g). 



The rule of law is, that the agent who makes the 

 contract may bring an action on the contract in re- 

 spect of his privity, and the principal in respect of his 

 interest (h) . 



If the agent is appointed only for a particular purpose, 

 and is invested with limited powers, or, in other words, is 



Person 

 described as 

 agent may be 

 proved to be 

 princi])al. 



Principal 

 cannot be 

 proved to be 

 an agent. 



Tbeir respec- 

 tive rights of 

 action on a 

 contract. 



"Warranty by 

 servant as 

 special agent. 



lb) Curtis V. Willinmson, L. E., 

 10 Q. B. 67, 59 ; 44 L. J., Q. B. 

 27; 31 L. T., N. S. 678. 



(c) Carr v. Jackson, 7 Ex. 382. 

 See also Fake v. Walker, L. E., 5 

 Ex. 173 ; 39 L. J., Ex. 109 ; 22 

 L. T., N. S. 547. 



(d!) Irvine ^ Co. v. Watson S; Sons, 

 5 Q. B. D. 102; 49 L. J., Q. B. 239 ; 

 41 L. T., ST. S. 51 ; per Bowen, J. 



Affirmed, 5 Q. B. D. 414— C. A. 



(«) S'umbleY. Hunter, 12 Q. B. 

 315. 



(/) Lucas V. Be la Cour, 1 M. & 

 S. 249 ; 14 E. E. 426. 



{g) Humble v. Hunter, 12 Q. B. 

 310. 



{h) Sijkes V. Giles, 5 M. & W. 

 650. 



