If he have previously given him notice not to pay to his principal,

It has been thought that payment to the principal would not be a

defence to such an action, {v) though without notice it would be

so ; {w) and in such a case Eyre, L. C. J., refused to allow the defend-

ant to set off money due to him from the principal, {x) There are,

limits of this rule, which does not include agents acting out of their usual employ-

ment, or agents for one particular transaction, McBrain v. Fortune, 3 Camp. 317.

Green v. New River Company, 4 T. R. 589. Edmonds v. Lowe, 8 B. <fe C. 408.

(r) 1 Atk. 248, 2 Esp. 493, B. N. P. 130. Williams v. Millington, 1 H. Bl, 81.

Sadler v. Leigh, 4 Camp. 195.

(s) Williams v. Millington ; see Sykes v. Giles, 5 M. & "W. 645.

{t) Per Lord Mansfield, Stevenson v. Mortimer, Cowp. 805.

(w) 1 H. Bl. 81. Joseph v. Knox, 3 Camp. 320.

{v) Drinkwater v. Goodwin, Cowp. 255.

(tfi) Coppin V. Walker, 7 Taunt. 237.

{x) Atkyns v. Amber, 2 Esp. 493. See Lord Mansfield's judgment in Drinkwater

В«. Goodwin, Cowp. 256.

PRINCIPAL AND AGENT. 209

Rights of third Parties against the Agent.

however, cases in whicli great hardships might result, if such a set-

off were not allowed ; (?/) and, generally speaking, where an agent

sues in right of his principal, whatever would be a defence against

the principal, will be so against him. And the declarations and

admissions of the principal will be evidence against him. (2)

An agent may also sue upon any contract made with him, in

his own name^ for an undisclosed principal, (a) And, if such a con-

tract be made by deed, he is the only person who can sue on it, for

It is an invariable rule of law, that no person can sue upon a deed,

who is neither party to nor mentioned in it.

Another state of facts also may occur, viz., ivhere a person has

entered into a contract as agent^ ivhen in fact he ivas the principal. It

would appear that in such a case the party making the contract

could not sue upon it, if it were a contract involving the consider-

ation of personal skill or knowledge, or if it were wholly executory,

or had been partially executed, the other contracting party remain-

Ing in ignorance of the real principal. But if it were of a descrip

tion not involving such a consideration, but being of such a nature

that partial execution would render the contract obligatory, as if,

for instance, it were for the sale of goods, and part of them had

been accepted with a knowledge that the person delivering was the

real principal, and not a mere agent as he professed to be, then he

could maintain an action for its non-fulfilment. (6)

Section VII. — Rights of third Parties against the Agent,

An agent contracting as such for a known and responsible em-

ployer, incurs no personal liability to third parties, (c) If the iii-

{y) See the observations of Eyre, C. J., in Atkyns v. Amber, and see Coppin v.

Craig, n Taunt. 243.

(3) Welstead v. Levy, 1 M. <fe Rob. 138. Megginson v. Harper, 4 Tyrwh. 94. 2

C. <fe M. 322. R. V. Hardwick, 11 East, 578. Harrison v. Vallance, 1 Bingh. 45.

Smith V. Lyon, 3 Camp. 465.

(a) Per Denman, C. J., delivering the judgment of the court in Sims v. Bond, 5 B.

& Ad. 393.

(6) Raynor v. Grote, 15 M. & W. 359. See also Bickerton v. Burrell, 5 M. & S.

383.

(c) Ex parte Hartop, 12 Ves. 352. Owen v. Gooch, 2 Esp. 567. Graham v. Stam

per, 2 Vern. 146.

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