Is no presumption either way, and that it is always a question as to what

was the intention of the parties." — AVright on Agency, pp. 296, 297.

6 Flinn & Co. V. Iloyle, 63 l. J. Q. B. 1 (1894).

В« Green >-. Kopke, 18 C. B. 549.

^ Kirkpatrick v. Stainer, 22 Wend. (N. Y.) 244; Oelricks v. Ford, 23

How. (U. S.) 49, 64, 65; Bray v. Kettfll, 1 Allen (Mass.), 80; Barry v.

Page, 10 Gray (Ma.ss.), 398 ; Kaulback v. Churcliill, 59 N. II. 296.

LIABILITY IN CONTRACT. 237

fiuenced by the consideration that the States of the Union

are, as to the law merchant, foreign to each other, and that

the English rule would work serious inconvenience to trade

jimong the States. ^ Even if the rule were admitted as to

principals resident in foreign countries generally, it would

jirobablv be denied as to those resident in two different States

of the Union. 2

В§ 188. (VI) Contract under seaL

Where an agent makes a contract under seal in his own

name (the seal not being merely superfluous), the agent alone

Is liable on the contract whether his principal be known or

unknown. It is a technical rule of the common law that

only those parties can be charged upon a sealed instrument

in whose names it is made, signed, and sealed.^ Nor is there

any remedy against the principal even in equity.* But if

the seal is superfluous it may be disregarded.^ If the instru-

ment be unsealed the principal may be held, even though it

be on a contract required by the Statute of Frauds to be in

writing.^

The recitals, covenants, testimonium clause, signature, and

seal must be examined in order to determine whether the

instrument is the deed of the principal or of the agent. The

instrument, in order to bind the principal, should be in his

name, under his seal, and should purport to be his deed ; the

form of the signature may be " P by A " or " A for P " or

" for P, A." ^ If the agent use apt words to charge him-

1 See Wharton on Agency, §§ 791-793.

2 Vawter v. Baker, 23 Ind. 63; Barry v. Fage, supra ; Barham v. Bell,

112 N. C. 131.

8 Cass V. Rudele, 2 Vern. 280; Appleton v. Biiiks, 5 East, 148; Han-

cock V. Hodgson, 4 Bing. 269 ; Briggs v. Partridge, 64 N. Y. 357 ; Kier-

Bted V. R. R^ Co., 69 N. Y. 343 ; Sanders v. Partridge, 108 Mass. 556.

4 Borcherling v. Katz, 37 N. J. Eq. 150.

5 Lancaster v. Knickerbocker Ice Co., 153 Pa. St. 427; Stowell v. El-

dred, 39 Wis. 614.

6 Beckham v. Drake, 9 M. & W. 79, 91; Briggs v. Partridge, supra;

Byington V. Simpson, 134 Mass. 169.

T Wilks V. Back, 2 East, 142; Mussey v. Scott, 7 Cush. (Mass.) 215;

238 AGENT AND THIRD TARTY.

self personally, he will l)e Ijoiind and not his principal.^ Thus

a deed reciting that it is executed in accordance with the

vote of a corporation, but concluding, " I hereunto set my

hand and seal," followed by the agent's name and a seal,

is the deed of the agent and not of the principal.^ JJut where

a deed recites that it is made by the " P Co. by A, agent,"

and concludes, "the parties have hereunto set their hands

and seals," and is signed "A, agent [seal]," the P Co, is

bound by the instrument, since it is held that the name of the

principal need not necessarily appear in the signature, pro-

vided it appear in the recitals, and the testimonium clause

describes the signature and seal as those of the principal.^

On the other hand the name of the agent need not appear in

the signature.*

In the case of public agents, the rule is that the agent is

not bound by a sealed instrument, unless the intent to make

himself personally liable is clearly disclosed, since it cannot

lightly be presumed that individuals have assumed pul)lic

burdens.^

§ 189. (VII) Negotiable instruments. — General rules.

Only the parties who are named or described in a negotiable

instrument can sue or be sued upon it. For our present pur-

pose we may state the rule to be that only the person in whose

Varnura v. Evans, 2 Mc:\Iull, (S. C), 409 ; Whitehead /•. Reddick, 12 Ired.

(N. C.) 95. But if there be no recitals showing the principal, it has been

held that a bond signed " A for F," is the bond of A. Bryson v. Lucas,

84 N. C. 680.

1 Taft V. Brewster, 9 Johns. (N. Y.) 334 ; Dayton v. Warne, 43 N. J.

L. 6.30.

2 Stinclifield r. Little, 1 Me. 231.

8 Bradstreet r. Baker, 14 11. I. 546. See also IMcDaniel v. Flower

Brook Mfg., Co., 22 Vt. 274; Martin r. Almond, 25 Mo. 313; City of

Kansas v. Hannibal, &c. 11., 77 Mo. 180; Whitford v. Laidler, 94 N. Y.

145.

* Devinney v. Eeynolds, 1 W. & S. (Pa.) 328: Forsyth r. Day, 41 Me.

382 ; Berkey v. Judd, 22 INIinn. 287. Contra, Wood i'. Goodridge, 6 Cush.

(Mass.) 117.

6 Hodgson V. Dexter, 1 Cranch (U. S.),345; Knight v. Clark, 48 N.

J. L. 22 ; post, В§ 203.

LIABILITY IN CONTRACT. 239

name a negotiable instrument is executed is liable upon it

and that parol evidence is inadmissible to prove that one who

executes a negotiable instrument in his own name did so in

behalf of an undisclosed principal, or of a principal disclosed

but unnamed in the instrument. ^

We have already seen that in the case of simple contracts

generally, parol evidence is admissible to show that an instru-

ment signed by A. B. was in fact signed by him in behalf of

P. Q., and that thereupon P. Q. may be held, though A. B.

will not be discharged.^ But in the case of sealed instru-

ments and negotiable instruments the rule is otherwise; —

the first because of the technical rules of the common law

governing sealed instruments ; the second because of the

technical rules of the law merchant governing negotiable