It is supported savors of subtlety and refinement. . . . What-

ever ground there may have been originally to question the

legal soundness of the doctrine referred to, it is now too

firmly establislied to be overtlirown, and I am of the opinion

that the practical effect of the rule as now declared is to

promote justice and fair dealing." *

" But, on the other hand, to allow evidence to be given that

the party who appears on the face of the instrument to be

personally a contracting party, is not such, would be to allow

1 Young V. Schuler, 11 Q. B. D. 651.

2 Oglesby v. Yglesias, El. Bl. & El. 930.

3 Jones V. Littledale, 6 A. & E. 486; Higgins v. Senior, 8 M. & W.

834; Cream City Glass Co. v. Friedlander, 84 Wis. 53; Leake on Cent.

(3ded.) p. 413; ante, В§ 123.

4 Briggs V. Partridge, 64 N. Y. 357. See also Waddill v. Sebree, 88

Va. 1012.

252 AGENT AND THIRD PARTY.

parol evidence to contradict the written agreement, which

cannot be done." ^

The construction of written contracts is for the court, where

there is no ambiguity to be explained by parol evidence.^ If

the contract is executed by the agent in his own name, and

tliere be nothing intlie instrument to qualify the effect of sueli

signature, the agent is held to have contracted personally.^

The mere addition to the signature of the term "agent," or

the mere description of himself as agent in the body of the

written instrument, creates no presumption that he did not in-

tend to contract personally.* Terms may be inserted, however,

negativing the idea of personal liability. Thus, " we have

soid you on account of J. M, & Co.," signed in the agents' own

names, does not create a personal liability against the agents.^

On the other hand the signature might clearly be apt to bind

the principal and not the agent, and yet be so qualified by the

terms of the contract itself as to render the agent liable.^

В§ 198. (IIIj Effect of custom.

Where an agent contracts, though as agent, in a capacity

or business where, by custom, the agent is usually liable, the

agent and the principal are both |)resumi)tively liable and the

third party may elect which he will hold. The clearest case

of this kind is that of the master of a ship who, when con-

tracting within his authority, binds both himself and the

owner according to the custom of the maritime law,' though

the effect of the custom may be overcome by proof of contrary

intent.^ The custom of trade may be shown in other cases to

impose liability upon the agent.^

1 Higgins V. Senior, 8 M. & W. 834.

2 Norton v. Herron, 1 C. & P. 618; McCollin r. Gilpin, 6 Q. B. D. 516.

8 Parker v. Winlow, 7 El. & Bl. 942; Paice v. Walker, L. R. 5 Ex.

173 (but see Gadd v. Houghton, L. R. 1 Ex. D. 3.37, where Paice v.

Walker is doubted); Brown v. Bradlee, 156 Mass. 28.

< JbuJ. ; Walker v. Bank, 9 N. Y. 582.

6 Gadd V. Houghton, 1 Ex. Div. 3.57; Ogden r. Hall, 40 L. T. R. 751.

6 Lennard v. Robinson, 5 El. & Bl. 125 ; cf. Heffron v. Pollard, 73 Tex. 96.

f Tlic Salacia, 32 L. J. Adm. 41 ; Sydnor v. Kurd, 8 Tex. 98.

8 James r. Bixby, 11 !Mass. 34.

9 Pike V. Onglev, 18 Q. B. 1) 70S

LIABILITY IN CONTRACT. 253

It lias also been held that although an agent has so con-

tracted as to bind his principal alone, yet proof of custom

may be introduced to show that the agent is also liable

unless such proof is repugnant to the express terms of the

writing. These cases, however, are those where the princi-

pal is not specifically named, as where the agent contracts

"as agent for owner," or "as agent for om- principals."^

В§ 199. (IV) Interest in subject-matter.

Where an agent has an interest in the subject-matter of

the contract, the agent and the principal are both liable, and

the third party may elect which he will hold. Such is the

case where an auctioneer sells goods, for he has a special

property in the goods and could maintain an action for the

price. It follows that he is liable personally for refusing to

accept the highest bid,^ or for refusing to deliver the goods

in his possession sold by him for a disclosed principal,^ or for

failing to give authority to enter and take the property sold ;*

but he does not warrant title.^