92 The law of agency.

existence, and entered into the contract solely on the

credit of the person whom he believed to be the principal,

though in fact he was not."

Kendall v, Hamilton (1870), 4 App. Cas. 504; here

Lord Cairns, L.C., said ; " I take it to be clear that where

an agent contracts in his own name for an undisclosed

principal, the person with whom he contracts may sue the

agent, or he may sue the principal ; but if he sues the agent

and recovers judgment, he cannot afterwards sue the

principal, even though the judgment does not result in

satisfaction of the debt."

Hichs v. Tweedy (1890), 63 L. T. N.S. 765 ; here it wa&

laid down that if an agent signs a written contract in his

own name without any qualification, he is personally liable,

unless there is something in the body of the contract in-

consistent with the existence of the agent's personal liability.

Though it is clear that, if an agent contracts in his own

name, the third party can elect whether he will sue the

agent or the principal, still, as soon as he has made his

election, the matter is at an end, and he cannot afterwards

sue the other party.

Priestley v, Fernic (1865), 3 H. & C. 977; here it

was laid down ; " If this were an ordinary case of prin-

cipal and agent, where the agent having made a contract

in his own name has been sued on it to judgment, there

could be no doubt that no second action would be main-

tainable against the principal. ... It may be that an action

against one might be discontinued and fresh proceed-

ings be well taken against the other,"

Whether there has been an election or not is as a general

rule a (juestion of fact for the jury — vide Calder v. Dohell

(1871), L. R. 6 C. P. 486, and Curtis v. Williamson (1874),

10 L. R. Q. B. 57. In the last case, the Court said; "The

question is what is sufficient to constitute a binding election

BIOETS AND DUTIES OF PRINCIPAL AND AGENT. 93

in point of law. In general the question of election can

only be properly dealt with as a question of fact for the

jury, subject to the direction of the presiding judge, as

was done in the case of Colder v. i)o6eZ^ (1871), L. R. 6 C. P.

486. But there may no doubt be cases in which the act

of the contractee in regard to his dealings with or pro-

ceedings against the agent, with full knowledge of the facts

and freedom of choice, may be such as to preclude him in

point of law from afterwards resorting to the principal."

If, in the case of a contract made by an agent in his own

name, the principal himself sues the third party, the latter

has the same right of Set-off or Counterclaim against the

principal, as he has against the agent ; but if the third

party knew, or ought to have known, that the agent was

such, then he cannot claim this right.

Rabone v. Williams (1785), 7 T. R. 360 ; here it was

laid down that where a factor conceals his principal, and

delivers goods in his own name, the person dealing with

him has a right to consider him to all intents and purposes

as the principal ; and though the real principal may sue upon

the contract, yet the purchaser has a right to set-off any

claim he may have against the factor in answer to the

demand of the principal.

Montagu v. Forwood (1893), 2 Q. B. 350. C. A. ; here it was

laid down by the Court of Appeal, approving the decision