SECTION II.

PARTIES TO THE CONTRACT.

Article 11.-Who are Principals.

EVIDENCE expressly to contradict a statement in the charter as to the parties to it will not be admitted (a), in the absence of mutual mistake (b), or parol agreement between the parties (c). But where the charterparty contains a statement leaving it ambiguous whether a particular person was intended to be personally liable under it, or where a person who did not execute the charter denies that he ever gave any authority for its execution, parol evidence of the real contract between the parties or of whether there was any real contract will be admissible (d).

Case 1.-B. signed a charter as "owner of the good ship Anne": evidence was tendered to prove that he signed as agent for A., the real owner. Held, inadmissible to contradict the special description in the charterparty, or to allow A. to sue (e).

Case 2.-B., a broker, sold to C. goods and gave a sold note: "Sold by B. to C. for and on account of owner. Held, that B. was not primarily liable on the contract, but that evidence of a custom in the trade that brokers were liable as principal on such a contract if they did not disclose their principal at the time of making the contract, was admissible, inasmuch as it did not remove the principal's liability, but added a personal liability of the broker. Semble (per Fry, L. J.,) it would not have been admissible if it professed to exclude the liability of the principal (ƒ).

Case 3.-In a printed charter between C. and A., the name of K., who was not a party to the charter, was by mistake left as charterer. To the plea that A. had not contracted with C., a reply that the intention was

(a) Humble v. Hunter (1848), 12 Q. B. 310. See also Lucas v. De la Cour (1813), 1 M. & S. 249.

(b) Breslauer v. Barwick (1876), 36 L. T. 52.

(c) Wake v. Harrop (1862), 1 H. & C. 202; Cowie v. Witt (1874), 23 W. R. 76. (d) See ante, Article 6.

(e) Humble v. Hunter (1848), 12 Q. B. 310.

(f) Pike v. Ongley (1887), 18 Q. B. D. 708.

to make a contract between A. and C., but that K.'s name had been left in by mistake, was held good in law, without reforming the contract (g).

Case 4.-A charter with A. was signed by D., " For C. and Co., D. and Co. agents." In an action by A. against D., D. set up an express parol agreement between A. and D., that D.'s signature was only to be as agent, and was not to render him liable as principal. Held, a good defence (h).

Case 5.-D. signed a charter with A.“ for C. D. agent,” and in an action against him by A., gave evidence that at the time of signing he told A. that he (D.) was not liable, but that C. was. A. admitted this, but said he remained silent, and did not assent. Held, evidence to go to the jury of express agreement that D. should not be liable, which would be a good defence (i).

Note. This proposition is apparently contradicted by four cases (k). In Schmaltz v. Avery (1) C. had entered into a charter between "A. and C. & Co., agents of the freighter," and containing the clause: "this charter being concluded on behalf of another party, it is agreed that all responsibility on the part of C. & Co. shall cease as soon as the cargo is shipped." At the trial it was proved, no objection being taken to the evidence, that C. was the real freighter. The court of Queen's Bench expressly noted that the evidence had not been objected to, and admitted that it, "strictly speaking, contradicted the charter, yet," they continued, "the defendant does not appear to be prejudiced; for, as he was regardless who the real freighter was, it should seem that he trusted for his freight to the lien on the cargo" (and not to the person of any particular freighter). "But there is no contradiction of the charter if the plaintiff can be considered as filling two characters, namely, those of agent and principal .. he might contract as agent for the freighter, whoever that freighter might turn out to be, and might still adopt the character of freighter himself if he chose."

In Carr v. Jackson (m), where the charter was made between A. and D., but contained the clause, "this charter being concluded by D. on behalf of another party resident abroad," D.'s liability is to cease on his shipping the cargo; Parke, B., said, "the defendant would have been responsible for the freight of the goods if it had been shewn that he was the real principal in the matter; and the charter which professes to be entered into by him as agent, would not preclude such evidence being given.'

In Adams v. Hall (n) B. entered into a charter as "B. for owners of the ship S." and signed it "for owners, B." In the

Breslauer v. Barwick (1876), 36 L. T. 52.

(h) Wake v. Harrop (1862), 1 H. & C. 202.

(i) Cowie v. Witt (1874), 23 W. R. 76.

(k) Jenkins v. Hutchinson (1849), 13 Q. B. 744; Schmaltz v. Avery (1851), 16 Q. B. 655; Carr v. Jackson (1852), 7 Exch. 382; Adams v. Hall (1877), 37 L. T. 70. (1) (1851), 16 Q. B. 655, 658, 663.

(m) (1852), 7 Exch. 382, 385; cf. Pike v. Ongley (1887), 18 Q. B. D. 708. (n) (1877), 37 L. T. 70.

Court below three letters written by B. were admitted without objection to prove that B. was the owner of the S., and the Divisional Court, noting the absence of objection to the evidence, said that the signatures to the charter were consistent with B.'s ownership, and that the letters did not contradict, but removed ambiguity in, the charter, and could therefore be used to explain the position of B.

In Jenkins v. Hutchinson (o) B. entered into a charter "between A. and C." and signed it " B., pro A." A. had given B. no authority to make the charter, and did not adopt it. The Court held that "a party who executes an instrument in the name of another, whose name he puts to the instrument, and adds his own name as agent for that other, cannot be treated as a party to that instrument, and be sued upon it, unless it be shewn that he was the real principal" (which seems to imply that evidence for such a purpose was admissible).

In only one of these four cases, Carr v. Jackson, did the question of the admissibility of the evidence directly arise, and even there, as the evidence tendered was itself held insufficient, its admissibility or inadmissibility was not vital. In two of them (p) such evidence was admitted without objection in the Court below, and the higher Court had to deal with it as already admitted; and in the fourth case (q), the Court suggested that such evidence would have been admissible in a state of facts not before them. Moreover, in three out of the four cases (r), the evidence was admitted to prove that an agent professing to contract for an undisclosed principal, was himself that principal, and in Jenkins v. Hutchinson the Court suggested that the evidence might be admitted, for that purpose; while in Schmaltz v. Avery the Court held that such a change of front, the agent declaring himself as the principal, who was before undisclosed, was not inconsistent with the ordinary terms of such charterparties.

Hutchinson v. Tatham (8) was also a case of an agent contracting for an undisclosed principal. The agent was held to be personally liable, on a custom imposing such a liability, if the agent did not disclose his principal within a reasonable time; but in so deciding, Bovill, C.J., said, "Apart from the evidence of custom, it is quite clear that upon a contract framed as this is (t), the defendants could not be personally liable. It appears on the face of the contract they are contracting on behalf of somebody else"; and Brett, J., said, "it is clear that without

(o) (1849), 13 Q. B. 744, 752.

(p) Schmaltz v. Avery; Adams v. Hall.

(9) Jenkins v. Hutchinson.

(r) Schmaltz v. Avery; Carr v. Jackson; Adams v. Hall.

(s) (1873), L. R. 8 C. P. 482.

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(t) I.e., as agents for merchants," both in the signature and the body of the charter.

evidence of custom the defendants would not be liable as principals. So strong do I consider the terms of the contract in this respect, taking the terms in the body and the signature together, that were evidence offered to shew that from the beginning the defendants were liable as principals, I should be prepared not to admit it" (u). This is clearly in direct conflict with the judgment of Parke, B., in Carr v. Jackson.

In Pike v. Ongley (x) Lord Esher withdrew his dicta in Hutchinson v. Tatham.

The result of the authorities as to the admissibility of evidence shewing another principal to the contract than appears on its face is submitted to be :

Where a man purports to contract as agent for an undisclosed principal, evidence is admissible to shew that the agent himself is that undisclosed principal, such a double character of the agent not being inconsistent with the terms of the charter; or to prove a custom making the agent liable as principal, so long as such custom does not exclude the liability of the undisclosed principal (a).

But D. entering into a charter as an agent, cannot disclose himself as principal if the other party relied on D.'s character as agent alone, and would not have contracted with D. as principal, had he known D. to be so (y).

Article 12.-When an Agent binds his Principal.

A person professing to act as agent will bind his alleged principal by a charterparty if that principal has:

(1.) given him express authority to make such a con

tract.

(2.) placed him in a position of implied authority, or held him out as having such authority (z).

(3.) afterwards ratified the contract purporting to be

made on his behalf.

(u) See also per Cockburn, C.J., in Fleet v. Murton (1872), L. R. 7 Q. B. 126; Hill, J., in Deslandes v. Gregory (1860), 2 E. & E. 602, 607.

(x) Pike v. Ongley (1887), 18 Q. B. D. 708.

(4) Schmaltz v. Avery (1851), 16 Q. B. 655, at p. 662; cf. Cooke v. Eshelby (1887), 12 App. C. 271.

(z) On the doctrines of "holding out" see per Kay, L.J., in Baumvoll v. Gilchrest (1892), 1 Q. B. at p. 263.

Case. On a charter signed "C., per proc of D.," it was proved that D. was allowed by C. to act as his general agent. Held, that C. was liable in the charter, though in making it D. hal exceeded C.'s special instructions (a).

Article 13.-When Agent is personally liable as Principal.

Whether or not a person, professing to have signed the charter as agent, can sue and be sued as principal, depends, apart from custom or express agreement, on the intention of the parties, to be gathered from the terms and signature of the charterparty, and the conduct of the parties in connection with the contract (b).

Where a person signs the charter in his own name without qualification, he is, primâ facie, deemed to contract personally, and, in order to prevent this liability from attaching, it must be clear from the other portions of the charterparty that he did not intend to bind himself as principal (c).

Note. An agent wishing to protect himself from personal liability should state in the body of the charter that it is made by him as agent for the charterer or shipowner, and sign it “ D., as agent for the charterer" (or shipowner). In this case, if no other clause in the charter shews an intention to make the agent personally liable, he cannot be sued on the charter; unless he does not disclose his principal, and a custom that an agent so failing to disclose is personally liable is proved to exist in that trade or port (d). Where a person effects a charter as agent, so describing himself as to escape personal liability on the charter, but has not in fact the authority he professes to have, so that his professed principal repudiates the charter, the alleged agent is liable in tort for breach of an implied warranty that he has the authority that he professes to have (e). The measure of

(a) Smith v. Maguire (1858), 3 H. & N. 554.

(6) A person may by his conduct have estopped himself from denying that he is personally liable: Hermann v. Royal Exchange Shippin, Co. (1884), 1 C. & E. 413 where a well-known line put on to the berth an extra steamer, and were held by their conduct and the form of the bill of lading estopped from saying that they were not the parties contracting to carry.

(c) Hough v Manzanos (1879), 4 Ex. D. 104. Cf. Gadd v. Houghton (1876), 1 Ex. D. 357, (C.A.); Hick v. Tweedy (1890), 63 L. T. 765.

(d) Per Bovill, C.J., and Brett, J., Hutchinson v. Tatham (1873), L. R. 8 C. P. 482. See also brokers' cases: Fairlie v. Fenton (1870), L. R. 5 Ex. 169; Gadd v. Houghton (1876), 1 Ex. D. 357 (C.A.); Southwell v. Bowditch (1876), 1 C. P. D. 100, 374 (C.A.); Pike v. Ongley (1887), 18 Q. B. D. 708.

(e) Collen v. Wright (1857), 8 E. & B. 647.