Agency.
176 Sect.
382. The intended principal must,
3.
of
Principal must be in
and
capable. Infants.
Contracts before incorporation
made
of
he
may
be able
and ascertainable at and be himself capable
Ratification.
esse
in order that
effectively to ratify a contract, be in existence
Conditions
company.
the time when the contract is entered into, If there is no such principal there can be no of entering into it (li). agency, and the so-called agent will himself be liable on the contract. This may happen in two cases. A contract entered into on behalf of an infant, other than for necessaries, will not bind the infant©, nor can an infant after coming of full age ratify any contract made on his behalf during infancy, even if there is a new consideration for it (k). Secondly, contracts made in furtherance of the projects of an intended compan}^, not actually formed, cannot be ratified by the company when it comes into existence. There is in such a case no agency, and the contract is that of the parties making it (I). But there may be evidence that the company after formation has entered into a new contract (m). Claims have often been made against companies after formation on contracts entered into by promoters for services rendered, In cases where the company has been incoror to be rendered. porated by private Act of Parliament, and the Act has provided for the payment of the formation expenses, these actions have generally been successful (n), even in cases where the plaintiff had given an undertaking to an individual promoter that there should be no claim if the company did not proceed with its undertaking (o), or where there had been a novation of the contract (p). But where the articles of association of a company incorporated under the Companies Acts provided for such payment, this was held to give no right to persons not members of the company (q) and certain cases show clearly that the claimants must look to the promoters and not to the company for payment (?')• When a contract is made by one who professes to be making but who has no principal existing at the time, it as agent, and the contract would therefore be wholly inoperative unless binding upon the professed agent, he must be presumed to have
Position of agent.
{h)
Watson
v.
Siuann (1862), 11 C. B.
(n. s.)
756
Foster v. Bates (1843), 12
M. & W. 226. (i) But see pp.
149, 150, a^ite. Infants' Belief Act, 1874 (37 & 38 Yict. c. 62), s. 2. Be Empress Engineering Co. (1880), (/) Eelner v. Baxter (1866),, L. E. 2 C. P. 174 16 Ch. D. 125 Natal Land and Colonization Co. v. Pauline Colliery Syndicate, Star Corn Millers' Society v. W. Moore & Co. (1886), 2 T. L. E. [1904] A. C. 120 North Sydney Investment and Tramway Co. v. Higgins, [1899] A. C. 263. 751 For the liability, apart from ratification, of' a company which has benefited under the contract of its promoters, see Touche v. Metropolitan Railway Warehousing Preston v. Proprietors of Liverpool, Manchester etc. Co. (1871), 6 Ch. App. 671 Railway (1856), 5 H. L. Cas. 605; Re English and Colonial Produce Co., [1906] 2 Ch. 435 Earl of Shrewsbury v. North Staffordshire Rail. Co. (1865), L. E. 1 Eq. 593. [m) Howard v. Patent Ivory Manufacturing Co. (1888), 38 Ch. D. 156.
) Re Tilleard (1863), 3 De G. J. & S. 519. ^ (o) Re Brampton and Lorigtown Rail. Co. (1875), 10 Ch. App. 177. [k)
Re Rotherham Alum and Chemical Co. (1883), 25 Ch. D. 103. Eley v. Positive Government Security Life Assurance Co. (1875), L. E. 1 Ex. D. 20, affirmed iUd. 88. Re Skegness and St. Leonard's (r) Re Kent Tramways Co. (1879), 12 Ch. D. 312 Tramways Co., Ex parte Hanjy (1888), 41 Ch. D. 215. ip) See
[q)
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