In reality no authority. In such a case the person so contracting

as agent would be liable to an action on the case for his misrepre-

sentation, or he might, at least in many cases, be charged himself

as principal ; {p) unless, indeed, as in the case of SmoutY. llherry^ 10

(w) See 1 T. R. 182, per Buller, J. Bowen v. Morris, 2 Taunt. 374.

(o) See Hoskins v. Slayton, Ca. tempt. Hardwieke. 376. This view is supported

by Parrott v. Eyre, 10 Bing. 283, where Tindal, C. J., left it to the jury to say whether

trustees of a road, who had contracted in a mode different from that in which the

funds of the road were by statute capable of being bound, had contracted on the

credit of the road, or on their own credit ; and the same question was left to the

jury in Eaton v. Bell.

(p) Thomas v. Edwards, 2 M. <fe W. 215. Jones v. Dowman, 4 Q. B. 235, n. Down-

man V. Williams, 7 Q. B. 103. See Story on Agency, 118, c. 7, s. 147, also 230, c. 10,

• 269.

* The liabilities of public and private agents are not co-extensive. If the former

makes a contract on behalf of the government, and describes himself as a public

agent, he will not be rendered responsible by the use of language which would in-

Volve a private agent in a personal liability. The reason of the distinction is, that

no private person can be presumed to have assumed any responsibility for the con-

tracts of the government, because it must be supposed to be unnecessary. Every

man dealing with a public agent in that capacity, has a right to place implicit con-

fidence in the good faith and ability of the government. The rule which we have

stated applies not only to simple contracts, but to specialties executed by public

agents in their own naflaes. As, however, a public agent may assume a personal re-

sponsibility, the inquiry in every case is a question of evidence as to the intention

of the parties. Hodgson v. Dexter, 1 Cranch's Rep. 345. Walker v. Swartwout, 12

J. R. 444. Tutt V. Lewis, 3 Call. Rep. 233. Perry v. Hide, 10 Conn. Rep. 329.

PRINCIPAL AND AGENT. 213

Rights of third Parties against the Agent.

M. & W. 1, lie had once had an authority, the determination of

which could not be known to him.

We have seen that the agent will be personally liable, where he

has expressly undertaken to be so. It is sometimes difficult to de-

termine whether, upon the true construction of an agreement, the

agent making it intended to bind himself or his principal.* The

nature of these difficulties will be best illustrated by two examples.

In Appleton V. Binks, (q) a man covenanted for himself, his heirs,

&c., for and on the part and behalf of J. S. to do a certain act ; and

It was held that he, and not j. S., was answerable for its non-per-

formance. On the other hand, in Spittle v. Lavender^ (r) Laven-

der entered into an agreement, as agent for, and on the part and

behalf of S. R., and signed it, at the foot of which agreement were

these words : " I hereby sanction this agreement, and approve of

Charles Lavender having entered into it on my behalf," and it was

held that Lavender was not responsible.