Is a body of more or less clearly identified ])ersons who might

jointly or severally be responsible princii)als, as individuals,

but no legal entity composed of the members in the aggregate.

There is not even a partnership.'^ In such case if the agent

contracts in the name of a principal, which name conveys

the idea of a corporate entity, the agent is clearly liable.*^

Whether the members of the club are also liable depends uj)on

whether in fact they authorized A to make the contract.

Such authority may be found in the constitution or by-laws of

1 Kelner v. Baxter, L. R. 2 C. P. 174; IloUman v. Pulliii, 1 C. & E.

254; Patrick v. Bowman, 149 U. S. 411; Lewis v. Tilton, 64 Iowa, 220;

cf. Bartlett v. Tucker, 104 :Mass. 3o6.

••^ Smout V. Ilbery, 10 M. & \V. 1 ; Carriger r. Wliittingtoii, 26 Mo.

311.

8 Ante, В§ 32. But see Whitney v. Wyman, 101 U. S. 392; Oakes v.

Cattaraugus Water Co., 143 X. Y. 430.

6 Flemyng v. Hector, 2 M. & W. 172; Ash v. Guie, 97 Pa. St. 493.

В« Lewis V. Tilton, 64 Iowa, 220; Blakely v. Bennecke, 59 Mo. 193;

Comfurt V. Graham, 87 Iowa, 295.

LIABILITY IN CONTRACT. 235

the club to which the members have assented/ or in the vote

of a meeting at which the members were present and in the

results of which they acquiesced.^ If the credit was extended

to the agent and not to the body he represents, the agent is

liable.^ But if the credit is extended to the club, or its

members, and not to the agent, and the agent was authorized

to procure such credit, then the club or its members, and not

the agent, will be liable.*

В§ 186. (IV) Exclusive credit to agent.

" The seller who knows who the principal is, and, instead

of debiting the principal, debits the agent, is considered,

according to the authorities which have been referred to,^ as

consenting to look to the agent only, and is thereby precluded

from looking to the principal." ^ An agent may deal so as to

bind himself personally, although disclosing his ])rincipal ; it

Is always a question of the intention and understanding of

the parties.^ Where in a sale the principal is known, but the

personal obligation of the agent alone is taken for the pur-

chase price, it is presumed that credit is given to the agent

and not to the principal.^ In cases where a principal is

undisclosed, the third party has an election between the

principal and the agent.^ In cases where the principal is

disclosed, the matter becomes one of the intention of the

parties at the time of the making of the contract. It

has been held that accepting a written contract in the name

of the agent, when the principal is known, is conclusive

1 Flemyng v. Hector, supra ; Todd v. Emly, 7 M. & W. 427.

2 Willcox V. Arnold, 162 Mass. 577; Heath v. Goslin, 80 Mo. 310.

3 Eichbaum v. Irons, 6 Watts & Serg. (Pa.) G7; ante, В§ 20.

* Pain r. Sample, 158 Pa. St. 428; Bennett v. Lathrop, 71 Conn. 61-3.

5 Paterson v. Gandasequi, 15 East, 62 ; Addison v. Gandasequi,

4 Taunt. 574; Maanss v. Henderson, 1 East, 335.

В« Thomson v. Davenport, 9 B. & C. 78, 89.

в– ^ AVorthington v. Cowles, 112 Mass. 30; Kelly v. Thuey, 102 Mo. 522;

Williamson i\ Barton, 7 H. & N. 899.

8 Merrill );. Witherby, 120 Ala. 418: Paige v. Stone, 10 Mete. (Mass.)

160. But see Atlas S. S. Co. r. Colombian Land Co., 102 Fed. Rep. 358.

9 Ante, § 126; post, §§ 196, 197.

236 AGENT AND THIRD TAUTY.

evidence of an intent to look to the agent alouc ; ^ but this is

doubtful. 2

If the ostensible agent is really the principal, and is in fact

acting upon his own behalf, he is, of course, liable upon the

contract.^

В§ 187. (V) Foreign principal.

Where the agent contracts in behalf of a foreign ])rincipal,

that is, one residing out of the jurisdiction, it is the rule of the

English law that the agent is presumed to pledge his own

credit, and that the third party does not rely upon the credit

of the ))rincipal, but exclusively upon the credit of the agent,

although the contract discloses the princij)al and the fact of

the agency.* But there is nothing to prevent one foreign

merchant from contracting with another througli the in-

strumentality of an agent, and if he docs so, he is, of course,

bound by his contract.^ And the agent may contract ex-

clusively for the foreign principal without recourse to himself.^

In the United States, this rule as to foreign principals has

been generally disapproved. It is held that there is no pre-

sumption that one dealing with an agent of a foreign principal

gives exclusive credit to the agent ; that it is in each case a

question of fact ; and that the fact that the principal resides

in a foreign jurisdiction has merely an evidential force.' In

reaching this conclusion the courts have probably been in-

1 Chandler v. Coe, 54 N. H. 561.

2 Ante, В§ 126; post, В§ 107.

B Carr v. Jackson, 21 L. J. Ex. 137; Isham v. Burgett, 157 Mass. .546;

cf. Heffron r. Pollard, 73 Tex. 96.

" Leake on Cont. (3d ed.) p. 417; Pollock on Cont. (6th ed.) p. 95;

Hutton r. Bulloch, L. R. 9 Q. B. 572; Die Elbinger Actien-GeselLschaft v.

Claye, L. R 8 Q. B. 313; Reynolds r. Peapes, 6 T. L. R. 49. But in

a recent I-^nglish work on Agency it is said that, "it now seems that there