Page:Halsbury Laws of England v1 1907.pdf/433

 —— Paet IX.

—

—

Relations between Principal and Thjrd Persons.

him from the agent personally, provided that the payment or settlement was made or the debt incurred before the third person knew of the existence of the principal (?•). to

448. But where an agent sells in his own name goods belonging to his principal over which he has a lien against the principal, the purchaser is discharged, to the extent of the lien, by any payment to, or settlement with, or set-off against the agent (s), even though the purchaser knew of the existence of the principal at the time of the contract (a), or has had a demand for payment from the principal Sub-Sect.

211 Sect.

3.

Contracts

made by Agent.

f^^^^^^^^^^^

having^Heii.

(b). 4.

Fraud, Misrepresentation, or Concealment.

449. Where, in the negotiation of any contract (c) by an agent, Fraud etc. of the agent does any act, whether or not the principal is privy ^^^^^^^^^^^ thereto (fZ), which by reason of the agent's knowledge amounts to fraud, misrepresentation, or concealment (e), or where, though the agent himself acts honestly, his act, by reason of the principal's knowledge, would, if done by the principal himself, amount to fraud, misrepresentation, or concealment (/), the third party may treat such act as the fraud, misrepresentation, or concealment of the principal, and may in consequence rescind the contract (g) or resist any action brought upon it, whether for specific performance (li) or otherwise (i). Where, however, the third party elects to af&rm the contract, or has lost the right to rescind it, he may bring an action for deceit, if the circumstances of the case permit, but otherwise he has no remedy {k).

Sect.

4.

PrincipaVs Liability for Torts committed by Agent, Sub-Sect.

1.

In General.

450. Where a principal gives his agent express authority to do a particular act which is wrongful in itself (I), or which necessarily (r) Kaltenlach v. Lewis (1885), 10 App. Gas. 617 ; Mildred v. Maspons (1883), 8 App. Cas. 874; Dresser v. Norwood (1864), 17 C. B. (n. s.) 466; Semenza v. Brinsley (1865), 18 C. B. (n. s.) 467 ; and see Cooke v. Eshelhy (1887), 12 App. Cas. 271.

Hudson V. Granger (1821), 5 B. & Aid. 27. Warner v. McKay (1836), 1 M. & W. 591. {h) Or from his trustee in bankruptcy {Drinkwaterv. Goodivi^i {17 15), Cowp. 251). (c) But tlie fraud etc. of the agent is not imputable to the principal in reference to the negotiation of another contract through another agent. Contrast Blackburn v. Haslam (1888), 21 Q. B. D. 144, with BlacJchurn v. Vigors (1887), (s)

[a)

12 App. Cas. 531.

Biggs v. Lawrence (1789), 3 Term Eep. 454. Archer v. Stone (1898), 78 L. T. 34 Mullens v. Miller (1882), 22 Ch. D. 194; Blackburn v. Haslam, supra; Morrison y. Universal Insurance Co. (1873), L. E. 8 Exch. 197. For the position generallj^ (/) Ludgater v. Love (1881), 44 L. T. 694. when one of the contracting parties is guilty of fraud etc., see title Contract. {g) Reese Pdver Mining Co. v. Smith (1869), L. E. 4 H. L. 64. {h) Mullens v. Miller, supra, ii) Blackburn v. Haslam, supra. [k) Brett v. Clowser (1880), 5 C. P. D. 376 and see p. 214, post. But the principal must make good any misrepresentation from which he benefits [Kettleivell v. Befuge Assurance Co. (1907), 23 T. L. E. 506). {I) Schuster v. McKellar Parkes v. Prescott (1869), (1857), 7 E. & B. 704 L. E. 4 Exch. 169. {d) (e)







P 2

Wrongful act expressly autnonsecl.