cipal, or the principal was known at the time by the other party, the agent is not personally liable unless he makes himself so, expressly; or it may be fairly inferred from the nature of the contract itself and concurring circumstances. These are facts for the consideration of the jury, and they have found there was no agency in this sale. The account rendered shows the sale was made by the defendant as principal. Nor does the proof show that the broker, when he purchased, knew the principal. He traded with the defendant as the principal, and so the account of sales was made out and the receipt of payment made.

"It would seem to us, this proof would enable the defendant to recover in his own name, against the plaintiffs, had they failed to pay for the flour on delivery. This is some test of the right of the plaintiffs to recover against him, for a breach of his contract of warranty.

"The witness stated that the defendant did not disclose his agency; he supposed he was selling on commission; did not know, when he bought, that one Burrows was the proprietor of the flour, but supposed so; that defendant had advanced upon it, and that Burrows was running the mill.

"The rule is, that a vendor not disclosing his agency, may be treated as a principal. This was held in Mills v. Hunt, 20 Wend. 433, and is a settled rule. In that case, the sale of the several articles was made by Mills, Brothers & Co., and the bill of parcels made out in their copartnership name, without disclosing the fact they were acting as the agents of other parties. They were auctioneers, and that fact was held not to be sufficient notice to the purchasers that they were not selling their own goods. The law was considered by the court of errors, in that case, as well settled, that a vendor or purchaser, dealing in his own name, without disclosing the name of his principal, is personally bound by his contract; and it makes no difference that he is known to the other party to be an auctioneer or broker, who is usually employed in selling property as the agent for others. And

the court further held, even when he discloses the name of his principal, if he signs a written contract in his own name merely, which does not show upon its face that he was acting as the agent of another, or in an official capacity in behalf of the government, he will be personally bound thereby. This rule has not been modified or changed by any decision of this court.

"It is a settled rule in verbal contracts, if the agent does not disclose his agency and name his principal, he binds himself and becomes subject to all liabilities, express and implied, created by the contract and transaction, in the same manner as if he were the principal in interest. Davenport et al. v. O'Riley et al., 2 McCord, 198; Allen et al. v. Rostain, 11 Serg. & Rawle, 362, 375; Mauri v. Hefferman, 13 Johns. 58, 77. And the fact that the agent is known to be a commission merchant, auctioneer, or other professional agent, makes no difference. Waring v. Mason, 18 Wend. 426; Hastings v. Lovering, 2 Pick. 214; and the case in 20th Wend. 431, Mills v. Hunt, which we have already cited."

66*

Question 252: (1) If an agent does not disclose his principal when he makes a contract, is the agent liable? Does it make any difference whether the person with whom he contracts knows that he is in fact an agent of an unknown principal?

(2) If the third person wished could he elect to hold the principal?

(Note: If the third person on discovering the principal elects to hold him, the agent's liability ceases. See also the next section for the liability of the agent on written contracts where the principal is known but not properly named in a written contract.)

Case 253. Siler v. Perkins, 126 Tennessee Reports, 380 (1912).

Facts: See the opinion.

Point Involved: That an agent, known to be acting as such, is nevertheless personally liable if he does not

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disclose his principal (the principal electing to hold the agent).

"First. It is said that the proof shows that, as to part of the stock sold, defendants Perkins and Gatliff were not owners, but agents merely, and of what proportion of the stock they were owners does not appear, but that complainant knew that they were acting as agents only in respect of part of the stock, and to sustain this insistence they quote one of the complainant's answers to this effect: 'I have always understood that Dr. Gatliff and Mr. Perkins and a man in Ohio were the principal and largest owners of the stock.' And upon this evidence is based the argument that defendants Perkins and Gatliff were acting as agents for a disclosed principal, and that their contract to pay complainant a commission for the sale of the stock did not bind the agents personally. The first answer to this contention is that the record does not show that defendants Perkins and Gatliff ever disclosed to complainant who their principals were in respect to that portion of the stock of which they were not themselves the owners; nor does it appear that they ever disclosed to him how much of the stock they owned individually, but it does clearly appear that the defendants were assuming, in the making of the contract sued on, to be acting for the holders of shares of the entire capital stock, in the corporation, and that they did sell and deliver, pursuant to negotiations conducted by complainant under the contract sued on, all of that capital stock. It is clear that complainant, under the terms of his contract with them, was made to understand that they and each of them personally were bound to him for the commissions which it was agreed that he should receive; that being the principal sum of the chancellor's decree.

"The second answer to the first assignment of errors is that while it is true as a general rule that in law 'an agent who, acting within the scope of his authority, enters

into contractual relations for a disclosed principal, does not bind himself, in the absence of an express agreement to do so,' yet it is also true that whether such an agent does by such a transaction bind himself depends on the intention of the agent and the person dealing with him, and this intention must be gathered from the facts and circumstances of each particular case. And it is the disclosed intention that governs, and not some hidden intention of the agent; and so the agent may become personally liable, although this be contrary to his actual intention, if he has in fact bound himself according to the terms of the contract. And an agent who makes a contract in his own name, without disclosing the identity of his principal, renders himself personally liable, even though the person with whom he deals knows that he is acting as agent, unless it affirmatively appears that it was the mutual intention of the parties to the contract that the agent should not be bound. Cyc., vol. 31, pp. 1552 to 1555, inclusive, and Page on Contracts, sec. 975, vol. 2.

"When a purchase is made by an agent, in the name and on the credit of the agent, for the principal not disclosed to the seller, the latter may, upon discovering the principal, treat the sale as a contract with the principal, and hold him responsible for the price. The seller may have his action for the price, at his election, against the agent or against the principal; and this, though the seller at the time supposed the agent to make the purchase for himself, as principal. In such case, the contract, though apparently and in form with the agent as principal is in fact for the benefit of the principal, and in the performance of the agency, and is the contract of the principal. The law regards the reality rather than the form.' Davis v. McKinney, 6 Cold. 17.

"But as a matter of course, when a third person contracts with an agent with knowledge of that fact, and also with knowledge of the principal for whom the contract is made, then the contract, if it be within the scope of the powers of the agent, is in law the contract of the

principal, and on such a contract the agent is not bound unless in making the contract the third party gave credit expressly and exclusively to the agent, and it was clearly the intention of the agent to become liable in person. Bailey v. Galbreath Bros., 100 Tenn. 602, 47 S. W. 84."

Question 253: On what ground did the defendants in this case seek to avoid liability? What did the facts show in that respect? What did the Court hold?

§ 258. (Agency, Sec. 74.) When agent bound on sealed instruments by the form of his execution.

§§ 259, 260, 261. (Agency, Secs. 74, 75, 76.) Agent bound by the form of his execution.

Case 254. Casco National Bank v. Clark, 139 New York Reports, 307.

Facts: The facts are stated in the opinion.

Point Involved: In what form an agent should execute a negotiable instrument of his principal in order not to bind himself personally. Whether in this case the agent by the form of his execution is personally bound.

GRAY, J.: "The action is upon a promissory note in the following form, viz.:

RIDGEWOOD

ICE COMPANY

Brooklyn, N. Y., Aug. 2, 1890. $7,500. Three months after date, we promise to pay to the order of Clark & Chaplin Ice Company seventy-five hundred dollars at Mechanics Bank; value received. E. H. CLOSE, Treas.

JOHN CLARK, Prest."

"It was delivered in payment for ice sold by the payee company to the Ridgewood Ice Company, under a contract between those companies, and was discounted by the plaintiff for the payee, before its maturity. The appellants, Clark and Close, appearing as makers upon the note, the one describing himself as 'Prest.' and the