cannot exonerate himself by extrinsic proof that his purpose was to contract on behalf of his principal exclusively, and not to bind himself, and that the other party knew it. That would contravene the established rule of evidence which forbids that any writing shall be contradicted by parol evidence. But whether the legal effect of the language of the instrument is to charge him or not is a question of construction, which must be resolved in each case on its particular phraseology. The intention of the parties is the guiding star, and that must be collected from the instrument itself, by a reasonable exposition of its contents. (3 Rob. Pr. (2d edit.) 62; 1 Pars. Cont. 54, & n (a); Burrell v. Jones, 3 B. & Ald. (5 E. C. L.) 47; Iveson v. Connington, 1 B. & Cr. (8 E. C. L.) 160; Spittle v. Lavender, 2 Brod. & B. (6 E. C. L.) 453; Norton v. Herron, 1 Carr. & P. (11 E. C. L.) 648; Tanner v. Christian, 4 El. & Bl. (82 E. C. L.) 591; Drake v. Beckham, 11 M. & W. 315; Early v. Wilkinson, 9 Grat. 68.)

But whilst parol testimony is inadmissible in order to discharge the servant or agent who has thus contracted in his own name, it is allowed (on the same principle as against a dormant partner), in order to charge a principal who was unknown to the other contracting party at the time of the contract; for if he were then known, and the contract were still in terms with the agent, it is proof that the credit was given to the latter alone. Such evidence, it will be observed, does not alter the contract as to the agent. It shows

only that another is bound as well as he. (3 Rob. Pr. (2d edit.) 54; Higgins v. Senior, 8 M. & W. 844; Townes v. Lucas' Ex'or, 13 Grat. 710; Ante, p. 211.)

21. Where there is no Principal, or none is disclosed.

In this case, the servant or agent is liable personally, although the master or principal, if there be one, may also be subjected, when he is discovered, supposing the contract to be not under seal. To this class of cases belong contracts by an agent for an unincorporated association, such as a jockeyclub. Such an association has, as a body, no existence in law, and it is not supposed that credit was given to the several members individually,

numerous, dispersed, and often unknown. (1 Pars. Cont. 55-6; Thompson v. Davenport, 2 Smith's L. C. 223, note; Cullen v. Duke of Queensberry, 1 Bro. C. C. 101, and n t; McWilliams v. Willis, 1 Wash. 201; Presb. Church v. Manson & als, 4 Rand. 198; Lyons v. Miller, 6 Grat. 427.)

This class of cases, in respect to the liability of the agent, may be resolved into three, namely:

1st. Where the agent makes a fraudulent misrepresentation of his authority, designing to deceive;

2d. Where he knows he has no authority, but nevertheless enters into the contract as if he had; and

3d. Where not, in fact, having authority, he bona fide believes that he has, and makes the contract under that belief.

In all these cases the agent is, it seems, personally liable; in the last, because, as the loss must fall somewhere, it should rather rest on him who has assumed, however innocently, yet falsely, that he possessed authority, and thereby occasioned the mischief. (1 Pars. Cont. 56, & n (e); Smout v. Ilberry, 10 M. & W. 9.)

On the other hand, the undisclosed principal, when the contract is not under seal, may come forward and claim the benefit of his agent's transactions in his behalf, yet not so as to interfere with any equities which may have arisen between the agent and a third person, before the former was known to be merely an agent. (3 Rob. Pr. (2d Ed.) 34, & seq.; Sargent v. Morris, 3 B. & Ald. (5 E. C. L.) 277; Skinner v. Storks, 4 B. & Ald. (6 E. C. L. 437; Cothay v. Fennell, 10 B. & Cr. (21 E. C. L.) 671; Phelps v. Prothen, 7 J. Scott (81 E. C. L. 394; Robern v. Drummond, 2 B. & Ald. (22 E. C. L.) 303; Sims v. Bond, 5 B. & Ald. (27 E. C. L.) 393.)

3. Where the Servant or Agent exceeds his authority.

Where the servant or agent exceeds his authority, the master or principal, as we have seen, is in general not liable, and the servant or agent is. Indeed, the master, where the authority is not substantially pursued, is never liable for the promise as made by the servant; although of course he may become answerable in consequence of his subsequent actual or implied ratification; but it

should be observed that such subsequent ratification in no wise exonerates the servant. (1 Pars. Cont. 54 & seq.; 1 Tuck. Com. 90, B. I; Rossiter v. Rossiter, 8 Wend. (N. Y.) 494; Palmer v. Stephens, 1 Den. (N. Y.) 471.)

It is a question in these cases, as well as in those arising under the preceding head (21), how the agent or servant is to be charged; whether on the contract, which he has professed to make as agent, or for the deceit practised by him in falsely pretending an authority which he did not in truth have; or upon an implied undertaking that he was really possessed of the power which he exercised. The better opinion seems to be that the contract is void;-not binding on the principal, because he gave no authority, nor on the agent, because he made no promise for himself;—and that the agent must either be charged in a special action on the case for the deceit, alleging and proving the scienter (that is, his knowledge that he had no authority;) or else, and better, in an action of trespass on the case in assumpsit upon an implied contract that he was clothed with power to do the act in question. (3 Rob. Pr. 71-'2; 1 Pars. Cont. 58; Polhill v. Walter, 3 B. & Ald. (23 E. C. L.) 114; Jenkins v. Hutchinson, 13 Ad. & El. N. S. (66 E. C. L.) 751; Lewis v. Nicholson, 18 Ad. & El. N. S. (83 E. C. L) 511; Rondall v. Trimen, 18 Com. B. (86 E. C. L.) 793-'4; Thompson v. Bond, 1 Campb. 6, 7.)

4. Where the Agent or Servant is dealing for a foreign Principal or Master.

not.

It seems that it is, in every case, a question of intention, to be gathered from the contract itself, and the surrounding circumstances, whether the agent of a foreign principal is personally liable or There is no rule of law that he shall be so liable. The fact that the principal is a foreigner is of some weight in a doubtful case, to determine to whom credit was given, but the ultimate question is, did the agent design to bind himself, or to bind his principal alone, and if the contract be in writing, that question must be resolved mainly by its terms. (3 Rob. Pr. 59; Mahone v. Kekulé, 14 Com. B. (78 E. C. L.) 396; Green v. Kopke, 18 Com. B. (86 E. C. L.) 558; Lennard v. Robinson, 5 El. & Bl. (85 E. C. L.) 130.)

2b. Rights of Master and Servant, respectively, in respect to Contracts made by the Servant, as such; W. C. 1. Rights of Master in relation to Contracts made by Servant, as such; W. C.

1. Rights of Master, where the Contract is by Deed.

No advantage at common law can be taken by the master, in a court of law, of a contract under seal, made by his servant in his behalf, unless he is expressly a party thereto. So that; if the servant thus contracts, although professedly for the master's benefit, but without naming him as a party, the action at law can be maintained only in the servant's name, and not in that of the master. The latter's only remedy, if he has any at all, is in the court of equity. (1 Pars. Cont. 53; Ross v. Milne & ux, 12 Leigh, 204.) But in Virginia it is now provided by statute that if "a covenant or promise be made for the sole benefit of a person with whom it is not made, or with whom it is made jointly with others, such person may maintain in his own name any action thereon which he might maintain in case it had been made with him only, and the consideration had moved from him to the party making such covenant or promise." (V. C. 1873, c. 112, § 2.)

2. Rights of the Master where the Contract is not by Deed.

Where the contract is not by deed, an undisclosed principal may claim and enforce the benefit of the contract; save only that he shall not impair nor injuriously affect any equities or rights acquired by the other contracting party in respect to the agent, without notice, and in ignorance that he was merely an agent. (1 Pars. Cont. 53; Warner, &c., v. McKay, 1 M. & W. 591, 600; Seins v. Bond, 5 B. & Ald. (27 E. C. L.) 389; Rabone v. Williams, 7 T. R. 360, n (a); Stracy, &c., v. Decy, 7 T. R. 361, n (c); George v. Clagett, 7 T. R. 359.) 21. Rights of Servant in relation to contracts made with him as such.

When the servant has contracted in his own name he may site thereon, as the un-named master may likewise (1 Pars. Cont. 53; 3 Rob. Pr. (2d edit.) 34, & seq.); but if in a contract he styles himself agent, and names his principal, he is estopped afterwards, as we have seen, to claim as principal in the transaction, notwithstanding he may be really such; at least unless the other party has treated him as prin

cipal. (Bickerton v. Burrell, 5 M. & S. 383; Raynor v. Grote, 15 M. & W. 359.)

28. Doctrine touching torts committed by Servants in connection with their employment.

We must observe, (1), The liability of a master for torts committed by a servant in connection with his employment; and (2), The liability of servants for torts committed by them in the course of their employment;

W. C.

1. Liability of a Master for torts committed by a Servant in connection with his employment.

The general principle is that a master is responsible for the tortious acts of his servants which were done in his service. (1 Bl. Com. 431; 1 Pars. Cont. 87; Laugher v. Pointer, 5 B. & Cr. (12 E. C. L.) 547); W. C.

1. Grounds and limits of the Master's liability.

The grounds of the master's liability are that he may and ought to control his servants or agents, whom he selects and may discharge; and that the policy of society requires that he should be answerable for their tortious acts whilst in his employment, and thus subject to his authority. And his liability is limited by similar considerations. Hence, whilst the master is answerable for the fraud, negligence, and want of skill of the servants who are engaged about his business, he is not liable for their wilful and malicious trespasses which he did not authorize, or afterwards sanction; save in the case of carriers and innkeepers, who, from peculiar considerations of public policy, are responsible as insurers of the chattels committed to them, for even the wilful torts of their servants. Hence, also, he is not liable for the acts or omissions of a contractor or sub-contractor, unless the act to be done be itself unlawful, or necessarily involve in its performance what is unlawful, or what imminently endangers the commission of what is unlawful, as, for example, the commission of a nuisance. (1 Bl. Com. 431, & n (26); 1 Pars. Cont. 87, & seq., & n (aa); Id. 89, & seq.; Quarman v. Burnett, 6 M. & W. 499; Rapson v. Cubitt; 9 Id. 710; Milligan v. Wedge, 12 Ad. & El. (40 E. C. L.) 737; Overton v. Freeman, 11 Com. B. (73 E. C. L.) 867; Ellis v. Sheffield Gas Co. 2 El. & Bl. (75 E. C. L.) 767; Chicago v. Robbins, 4 Black. 418, 428; Robbins v. Chicago, 4 Wal. 657, 679; Water Co. v. Ware, 16 Wal. 576-'7.)