(COURT OF APPEAL)*

HAMID RAHAMA EL FIKRI vs. ABDEL RAHIM SALMAN

 (AC/REV/13/1957)

Revision

Principles

·  .Agency Personal Liability of Agent for Disclosed Principal voluntarily and expressly Incurred.

It is a primary rule of agency law that an agent for a disclosed principal can not be made personally liable, but such an agent may by express words undertake voluntarily to be personally liable should his principal default

Judgment

The facts appear sufficiently in the judgment.

Advocates Mirghani El Nasri for Applicant. Respondent in person.

B. Awadalla, 3. : This is an appeal against the decision of his Honour the Province Judge, el Damer dismissing with costs an application by the Applicant for the recovery of L.S.161 m/ms, the balance of the value of 48 sheep alleged to have been sold and delivered to the Respondent in June 1956. The ground on which the learned Advocate

(*) Court: M.A. Abu Rannat, C.J.; B. Awadalla, J.

For the applicant is relying is that the judgment of His Honour the Province judge was against the weight of the evidence in finding that the Respondent was acting in the transaction NOT in his personal (a hut in his capacity as agent for a disclosed principal.

The facts as believed by the Court arc set Out in the judgment and there is no need to restate them here. A perusal of the proceedings will show that the point of contention Is a simple one and one only. The crux of the whole case is whether the Defendant was acting solely for himself or on behalf of some Shendi merchants and we think that the case could well have been disposed of by framing one issue and one issue only.

Although there was conflicting evidence on this point, the Court believed the witnesses of the Defendant that he only made a collateral undertaking to “see that the Plaintiff would be paid”. This is a pure question of fact and we do not feel inclined to interfere with the Court’s finding thereon or to agree with the learned Counsel for Applicant that it was against the weight of the evidence.

In dismissing the case, the Court relied on this finding of fact, which in its opinion is governed by the primary rule of agency law that an agent for a disclosed principal cannot be made p liable.

We would have preferred to find on the record a verbatim statement of the exact words used by the Respondent to induce Applicant to sell in spite of the fact that he was persistently adamant in refusing to sell to the Shendi merchants who had already defaulted in paying him on a previous transaction, and the only logical deduction that we can make is that the Respondent meant by the words “I would see that you are paid” to say that he would be personally liable should his principals, the Shendimerchants, default. It is only on this hypothesis that the Applicant’s consent in agreeing to the sale — after a strong objection — can be understood. In arriving at a conclusion that these words imported no liability, we believe that the Court went wrong in its estimation of the facts.

Having found that the Respondent meant to make himself personally liable in the case of a default by his principals, and his principals having now failed to pay, can the Respondent be ordered to abide by his word? In other words, can an agent for a disclosed principal ever be made liable on the contract ? We think the answer must be in the affirmative. Bowstead’s Digest of Law of Agency (11th Edition) says (at p. 246)

“Every agent who contracts personally, though also on behalf of his principal, is personally liable, and may be sued in his own name, on the contract, whether the principal be named therein, or be known to the other contracting party, or not, and either the principal or agent may be sued, unless the other contracting party elects to give exclusive credit to the principal.”

The same rule is stated in Halsbury’s Laws of England (3rd Edition Vol. at p. 230).

“Where a person in making a contract discloses both the existence and the name of a principal on whose behalf he purports to make it, he is not, as a general rule, liable on the contract to the other contracting party, whether he had in fact authority to make it or not; but a personal liability may be imposed upon him by the express terms of the contract.”

We are therefore of opinion that in this case, though the Respondent was acting for a disclosed principal he had expressly super-added his own liability to that of his principals in such a manner as to make him self personally liable to the extent to which credit has been extended.

The judgment of His Honour the Province Judge is therefore reversed and a decree shall be issued for the Applicant for claim and Court fees both here and in the Court below and for Advocate costs.

M.A. Abu Rannat C.,7.: I concur.

Application for Revision Allowed.