If the contract is unenforceable against the principal be-

cause of some defect or informality, other than the want of

authority of the agent, no damages can be recovered against

the agent based upon the breach of his warranty of author-

ity.'-^ Nor can the equitable doctrine of part i)erformance

be invoked so as to give a remedy in equity for damages for

breach of warranty of authority.'^ In order to maintain the

action for damages, the third person must show that the

principal has repudiated the contract and that damage has

resulted to plaintiff therefrom.^

В§ 184. (II) Incompetent principal.

An agent is presumed to represent not only that he has

authority but that his principal was competent to give such

authority when it was given, and has not since, to the knowl-

edge of the agent, become incompetent.^ A breach of this

representation resulting in damage gives the same remedies

as a breach of the representation as to authority. But the

damage must have been suffered. If the principal be one, as

an infant,^ who may ratify or disaffirm at his election, it

must be shown that he has disaffirmed before an action will

lie against the agent.'^

В§ 185. (Ill) Fictitious principal.

Where an agent contracts for an alleged principal who

is not in fact in existence at the time, he becomes personally

1 Riiiulell r. Trimen, 18 C. B. 78G ; Hughes v. Graeme, 3:3 L. J. Q. B.

333 ; Godwin v. Francis, L. R. 5 C. P. 295.

2 Pow V. Davis, 1 B. & S. 220; Baltzen v. Nicolay, 53 N. Y. 467.

3 Warr r. Jones, 24 AA'eekly Rep. 695.

* Patterson v. Lippiucott, 47 N. Y. L. 157.

6 Drew V. Nunn, L. R. 4 Q. B. D. 661 ; Hoppe v. Savior, 53 Mo.

App. 4.

^ In those jurisdictions where an infant's appointment of an agent is

not void, but voidable. — Ante, § 15.

' Patterson v. Lippiucott, 47 N. J. L. 457.

234 AGENT AND TIIIKD PAUTY.

liable on the contract as i)rinei])al/ except that he is not

liable where his jtrincipal dies without his knowledire.''^

The connnoncst case of a fictitious [UMuciijal is the case of

a j)rojected corporation whose promoters enter into contracts

in anticipation of its formation, and sign " as agents" for the

(named) corporation. Obviously there is no ])rincipal, as no

coi-poration exists. If it should never exist there could be no

question as to the sole liability of the j)romoters. But how if

it is in fact incorporated and '' ratifies " the contract of the

promoters ? There can be no real ratification in such a case

because it is the first essential of ratification that the princijjal

should be an existing person at the time the contract was

made."^ Accordingly the agent remains liable unkss, by

agreement among the three parties, the corporation after it is

in existence should be sul)stitutcd in jilace of the promoters.'^

This, however, amounts to the dischai'ge of the original con-

tract and the formation of a new one.

Another common case is where A contracts with X in

behalf of an unincorporated club or association. Here there