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Relations between Phincipal and Third Persons.

Part IX.

209

name, he is liable as acceptor (g) or otherwise (/i), as the case may be, on all instruments signed by the agent in his own name in the

Contracts

com*se of such trade or business.

made by

^•

Agent. behalf of a foreign principal cannot be enforced hj (i), or against (A;), such principal, ^ehaiTof^^ even though his existence was known to the other contracting party, foreign unless it is affirmatively shown that at the time when the contract principal, was made the agent had authority to establish privity of contract between such principal and the other party, and that privity of contract was in fact established between them (l).

444.

A

contract

made by an agent on

445. The rights and

liabilities of

a principal under his agent's Exclusion

of

may

be excluded by the express terms of the contract (m), ^^^^^g^^^ The mere fact that the agent is himself lifbmties. but not by usage liable on the contract, and that credit has been given him (o), is not sufficient to exclude the principal's liability. Where, however, the other contracting party, whether in ignor- Election to ance of the principal's existence or not, obtains a judgment against treat agent or, though he knows {q) at the time when the conthe agent tract is made (?•), or discovers afterwards (s), who the real principal is, elects to look to the agent to the exclusion of the principal, the principal is discharged from liability, and his liability cannot be Such election is conclusively proved by obtaining judgrevived (i^). ment against the agent (a), even for part of the claim (b). Otherwise the question of election is one of fact (c), and depends on the circumstances of the particular case {d).

contracts

{(j)

(h) (i)

{k)

Edmunds

v.

Bushell (1865), L. E.

1

Q. B. 97.

Furze v. Sharioood (1841), 2 Q. B. 388. ElUnger Actien-Gesellschaft v. Claye (1873), L. E. 8 Q. B. 313. Button V. Bullock (1874), L. E. 9 Q. B. 572 FatersonY. Gandasequi (1812),

15 East, 62. (1)

Armstrong

V. Claye,

v. Stokes (1872),

supra, per

Blackburn,

L. E. 7 J., at p.

B. 598; ElUnger Adien-Oesellschaft 317 Malcolm v. Hoyle (1893), 63 L. J.

Q,.



<Q. B.) 1.

(m) Montgomerie v. United Kingdom etc. Association, [1891] 1 Q. B. 370 United Kingdom etc. Association v. Nevill (1887), 19 Q. B. D. 110 and contrast Great Britain etc. Association v. Wyllie (1889), 22 Q. B. D. 710. See also Humlle V. Hunter (1848), 12 Q. B. 310. Levitt v. HamNet, [1901] 2 {n) Langton v. Waite (1868), L. E. 6 Eq. 165 K. B. 53. (o) Faterson v. Gandasequi, supra; Thompson v. Davenport (1829), 9 B. & C.



78.

{p ) Even though unsatisfied {Kendall v. Hamilton (1879), 4 App. Cas. 504) but the principal's liability revives if the judgment is set aside on the merits {Partington v. Hawthorne (1888), 52 J. P. 807; but not where it is merely with the agent's consent {Cross v. Matthews (1904), 91 L. T. 500; Hammond v. Schofield, [1891] 1 Q. B. 453). {q) Actual knowledge must be proved {Dunn v. Newton (1884), 1 C. & E. 278). (r) Faterson v. Gandasequi, supra, per Bayley, J., at p. 70; Addison v. Gandassequi (1812), 4 Taunt. 574. (s) Friestley v. Fernie (1865), 3 H. & 0. 977. Faterson v. Gandasequi, supra, at p. 70. Morel v. Earl of Westmoreland, [1904] A. C. 11 ; Priestley v. Fernie, supra. (6) French v. Hoiuie, [1906] 2 K. B. 674. (c) Calder v. Dolell (1871), L. E. 6 C. P. 486. {d) Calder Y. Dohell, supra; Curtis v. Williamson (1874), L. E. 10 Q. B. 57; RohinsonY.Read (1829), 9 B. & 0. 449; Stonehamy. Wyman (1901), 6 Com. Cas. 174. [t)

(a)

as