(b) Where the principal is undisclosed. We have already seen that an agent who enters into a contract in writing has the right to sue and is liable to be sued thereunder. So his principal w ill also be liable to be sued and be entitled to sue thereon, in all eases; unless from the attendant circumstances it is clearly manifested that an exclusive credit is given to the agent, and it is intended by both parties that no resort shall in any event be had by or against the principal in it. In fact it is immaterial, apart from special stipu lation, whether the principal is disclosed or not. The only material point is whether the third parry gives credit to the agent, or to the principal when disclosed ; and as to this he has the right of election, and must not look to both. Thus, if an agent purchases goods in his own name for his principal without disclosing the latter, the principal will be liable for the price, when discovered to the vendor. If the agent purchases the goods and states at the time that he purchases as agent, but does not disclose the name of his principal, the latter will not be absolved from the contract; for the principal not being known it is impossible to say that the vendor has made his election not to trust the principal, but exclusively to trust the agent. He may give credit to both or either ; and he is not presumed to have an intention to elect to charge either exclusively until the name and credit of both are fairly befdee him. There is no presumption, even where a person deals with the licensee of an hotel and knows nothing of the real owner, that the licensee is a mere manager with limited authority, and that the house is tied (Kinahan v. Parry). Nor does the third party necessarily determine his election by merely making a demand upon the agent and threatening him with proceedings. But if a vendor has sold goods to and on the sole credit of the agent of an undis closed principal, and the latter has bond fide paid therefor to the agent, whilst the vendor was still debiting the agent, knowing no one else as principal, the vendor cannot afterwards on discovery of the principal sue him for the price.
When the principal is non-existent the agent is, and is treated as the prin cipal. He may himself sue upon the contract if he is not therein described as agent only, or when the contract has been partly performed with a knowledge of the facts. He may sue upon a charter-party, even though he has described himself therein as an agent. Cases of a non-existent principal generally occur in the course of company promotion where a person may have occasion to contract with another who describes himself as trustee for a company about to be formed. The company not being incorporated at the time of the con tract, the latter is inoperative as against the company when it does come into existence. The company may, when incorporated, enter into a new contract on the same terms as the former one, but it cannot be made to ; and apart from special agreement, the so-called trustee would alone be personally liable.
The agent's torts.—In order that the principal may be liable for injuries caused by the wrongful act of the agent, thp act must be one within the scope of his authority. The agent must be acting in the due course of his employment, and the express command of the principal need not be shown. And the agent is equally liable with his principal in respect of his own personal participation in the wrongful act. And it is no justification that he had his principal's authority to do a thing which the principal himself had no right to do, though if the agent acted innocently he is entitled to indemnity from his principal. Where the wrongful act is not within the scope of his authority, the agent is alone liable, even though it were done for and on behalf of his principal.
Termination of Agency is possible in various ways. For example, by complete performance of the terms of the agency ; by expiration of time of the term of the agency ; and by destruction of the subject-matter, as in the case of a yacht having sunk which had been placed in an agent's hands to sell. There is also operation of law, as by death. In a case where the husband, who had been in the habit of buying his meat from a certain butcher, went to China, leaving his wife and family behind, and there died, the wife was held not to be liable for the meat supplied to her after his death, though before news of it had arrived. The wife was her husband's agent, and his death had revoked her authority. By Bankruptcy and Insanity an agency under certain circumstances may be revoked—each of which would be instances of the operation of law.
It remains now to consider termination by consent of the parties. If the principal withdraws, it is termed revocation ; and if the agent, renunciation. An agreement for termination should be formal as the creation of the agency, and notice should be given to all third parties with whom the agent has been accustomed to deal. Without such notice, or until the expiration of such a time from the termination, or the happening of such circumstances as would lead a reasonable man to infer that the agency had terminated, the principal would continue liable in respect of his late agent's acts assumed to be done on his behalf. There are limits to the power of revocation, as where the principal is under an obligation to pay money to a person' and has ap pointed such person his agent to collect debts from third parties and retain the same. Also where the agent has partly performed his agreement and expended time and money therein, he is entitled to compensation in the case of premature revocation. See also hereon, AUCTIONEER; FAC TORS; INSURANCE, PAWN, STOCK BROKERS; and POWER OF A TTO t NE y