Innocent person."

Where an agent is liable to be sued for breach of

warranty of authority, he cannot of course either be sued

or sue upon the contract itself; for in such cases, as there is

a principal named and existent, the agent himself is not a

contracting party at all.

Where, however, an agent knew that he had not the

authority which he professed to have, there is, in addition

I

114 The law of agency.

to an action for breach of warranty of authority, a further

and alternative remedy against him in tort ; and he is

liable to be sued for damages for fraud, in the action of

deceit — vide Randell v. Trimen (1856), 18 C. B. 78G, and

Folhill V. Walter (1832), 3 B. & Ad. 114. In the latter

case an action was brought against the defendant for falsely

and fraudulently representing that he was authorized to

accept a bill of exchange by procuration. A bill had been

presented at the office of the drawee for acceptance during

his absence ; and the defendant, who lived in the same

house as the drawee, being assured by one of the payers

that the bill was perfectly regular, wrote on the bill an

acceptance as by the procuration of the drawee. The

defendant had no authority to do so, but he honestly

believed that the drawee would ratify the acceptance. The

bill was dishonoured when due, and the indorsee brought

an action against the drawee, and was non-suited. He then

sued the defendant. At the trial the jury negatived all

fraud and deceit in fact, on the part of the defendant ; but

the verdict was entered for the plaintiff, the Court holding

that the defendant had been guilty of fraud in law, on the

ground that he had made a representation knowing it to be

untrue, and which was intended to induce another to act

upon it to his detriment. In giving judgment, Lord

Tenterden laid it down, that a corrupt motive of gain to

the person making the representation, or injury to the

person to whom it is made, is not necessary for the main-

tenance of the action of deceit.

A professing agent cannot be sued, for breach of an im-

plied warranty of authority, or for deceit, by a third party

wlio knew of the agent's want of authority when he entered

Into the contract — vide Snioiit V. Ilbury (1842), 10 m. &

W. 1, and Jones v. //ope (188G), 3 T. L. K. 247. C. A. In the

Litter case, Brett, L.J., said ; " But tliat docs not apply wliere

the person witli whom the contract was supposed to liave

RIGHTS AND DUTIES OF PRINCIPAL AND AGENT. 115

been made, knows all the circumstances just as much as

the agent himself; knows that the agent is not authorized,

and then chooses to take the credit of the person, when he

knows that the agent is not authorized to pledge it. In

such a case I cannot think that an action (viz. for breach

of warranty of authority, or for deceit) would lie."

It also seems that where a third party is mistaken in

law as to the agent's authority, provided that he knew all

the facts of the case, so that he could judge for himself

whether the agent had in law the authority he was

supposed to have, the agent could not be made liable.

Beattie v. Lord Mury (1872), L. R. 7 Ch. 777; here

Mellish, L. J., said ; " I have no doubt myself that it would

be held that if there is no misrepresentation in point of

fact, but merely a mistake or misrepresentation in point

of law; that is to say, if the person who deals with the

agent is fully aware in point of fact what the extent of

the authority of the agent is to bind his principal, but

makes a mistake as to whether that authority is sufficient