10. An agent is exclusively entitled and liable upon

the contract when he names a principal who is non-

existent. Neither can there be any ratification by a

principal who is non-existent at the time that the contract

Is entered into.

Kelner v. Baxter and others (1867), L. K 2 C. P. 174 ;

(Iiere the defendants, who were some of the promoters of a

108 The law of agency.

prospective company, entered into a contract in its behalf

and in its name (the contract being signed, " on account

of the Gravesend Eoyal Alexandra Hotel Company ") before

the company had come into existence. The Court held

that the said promoters were personally liable upon the

contract; and that a subsequent ratification of the con-

tract by the company after it had come into existence

could only take place with the plaintiff's consent; and

would then be a new contract altogether. It also held

that parol evidence to show that the personal liability of

the defendants was not intended, was inadmissible. Erie,

C. J., in giving judgment, said ; " The cases referred to in

the course of the argument fully bear out the proposition

that where a contract is signed by one who professes to be

signing "as agent," but who has no principal existing at

the time, and the contract would be altogether inoperative

unless binding upon the person who signed it, he is bound

thereby ; and a stranger cannot by a subsequent ratifica-

tion relieve him from that responsibility."

Steele v. Gourley (188G), 3 T. L. R. 119 & 772 ; here it was

held that the executive committee of a club, or the members

thereof who give an order or who authorize the giving of

an order, for goods to a tradesman, in the name of and on

behalf of the club, are personally liable for such goods : for

a club is not a legal entity, nor has it in the eyes of the

law any existence at all. In giving judgment, Brett, M.R,,.

said ; " Although a tradesman, upon an order being given

by an agent, supposes that that agent is authorized by a

particular individual to give the order, and it afterwards

appears that that individual has not authorized the agent

to give the order, but that some other person has authorized

liim to do so, that other person is liable to the tradesman,

and the individual to whom the tradesman has in his mind

given credit is not liable." Lopes, L. J., also said ; " The

})laintifi" may tliink lie is contracting with the club, and

RIGHTS AND DUTIES OF PRINCIPAL AND AGENT. 109

may give credit to the club, but he can only sue the real

principal."

But it seems that the mere fact that a person is a

member of a club committee will not in itself make him

liable for goods which have been ordered without his

authority— vi(7e Todd v. Emly (1841), 8 M. & W. 505, and

Draper v. Earl Manvers (1893), 9 T. L. R. 73.

Moreover, when an agent can prove that a third party

with whom he contracted did not rely on his personal

credit, but exclusively gave credit to some particular fund,

as a parish fund, or the fund of a corps, an officers' mess

fund, or the fund of a club, then the agent will not be

personally liable — vide Williams v. Hathaivay (1877), 6

Ch. D. 544, Jones v. Hope (1886), 3 T. L. R 247. C. A.,

and Haivhe v. Cole (1890), 62 L. T. N.S. 658.