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Agency.
No agent, however, is guilty of a conversion who, not being in possession of the goods or securities, merely negotiates a contract of sale between his principal and a third person {I), or who, though being in possession of them, does not do any act which is obviously wrongful if the principal is not the true owner, but deals only with the possession of them as directed by his principal without purporting to dispose of the property in them {m). Nevertheless any dealings whatsoever with the goods or securities against the will of the true owner will amount to a conversion if done with notice of his claim (n), 472. Moreover, no agent who, being in possession of property which his principal holds in trust for another, makes, on the instructions of his principal, any disposition thereof which is inconsistent with the trust, is guilty of a breach of trust (o), unless he had notice of the trust at the time (p), and was aware that the disposition made by him was in breach of trust {q).
Sect. 2. Sub-Sect.
1.
Rights of Agent. Enforcement of Contracts.
473. Any person who makes a contract in his own name without disclosing the existence of a principal {r), or who, though disclosing the fact that he is acting as an agent on behalf of a principal, renders himself personally liable on the contract (s), is entitled to enforce it against the other contracting party (i), notwithstanding And a similar that the principal has renounced the contract (a). right appears to exist where the agent, though contracting expressly as agent only, does not disclose the name of his principal {h). Cochrane v. Bymill (1879), 40 L. T. 744,jper Bkamwell, L.J., at p. 746; v. Furlong, [1891] 2 Ch. 172. (m) National Mercantile Bank v. Rymill (1881), 44 L. T. 767 Union Credit Bank V. Merseij Docks and Harbour Board, [1899] 2 Q. B. 205 Barker v. Furlong, supra. (w) Davis V. Artingstall (1880), 49 L. J. (ch.) 609. But a refusal to deliver up the goods without an order from the principal, or a request for a reasonable time for inquiry, does not amount to conversion {Alexander v. Bouthey (1821), 5 B. & A. 247 Pillott v. Wilkinson (1864), 3 H. & C. 345). Bank of New South Wales v. (o) Gray v. Johnston (1868), L. E. 3 H. L. 1 Goulburn Valley Butter Company Proprietary, Ltd., [1902] A. C. 543; and see Union Bank of Australian. Murray - Ay nsley, [1898] A. C. 693. {p) Williams Y. Williams (1881), 17 Oh. D. 437; Ex parte Kingston, Be Gross (1871), 6 Ch. App. 632. (q) Magnus v. Queensland Bank (1888), 37 Ch. D. 466; and contrast Coleman The fact that a personal benefit to V. Bucks etc. Union Bank, [1897] 2 Ch. 243. the agent is designed or stipulated for is strong evidence that the agent is privy to the breach of trust {Gray v. Johnston, supra, 'per Lord Cairns, L.C, at p. 11. See further, on this point, title Tkiists and Trustees). (r) Drinkwater Y. Goodwin (1775), Cowp. 251. Cooke v. Wilson (1856), 1 C. B. (s) Short V. Spackman (1831), 2 B, & Ad. 962 (n. s.) 153; Agacio v. Forbes (1861), 14 Moo. P. C. C. 160; Sargent v. Morris (1820), 3 B. & Aid. 277. {t) Fisher v. Marsh (1865), 6 B. & S. 411, per Blackburn, J., at p. 416. (a) Short v. Spackman, supra. But see Sharman v. Brandt (6) Schmalz v. Avery (1851), 20 L. J. (q. b.) 228. (1871), L. E. 6 Q. B. 720, per Kelly, C.B., at p. 722, and Martin, B., at Compare Chapman v. Smith, [1907] 2 Ch. 97, 103, where the fact that p. 723. the person making a lease was therein described " as agent, hereinafter called the -landlord," was held not to prevent the lease operating as a demise of the estate vested in him as mortgagee. {I)
Barker
