The master of a ship had been sued on a bill of lading. The plaintiff recovered judgment against the master but attempts to enforce it proved unsuccessful as the master became bankrupt. The plaintiff then discovered that the master had signed the bill as agent on behalf of the shipowner and sought to implead the owner.
Held: The action could not be maintained.
Bramwell B said: ‘If this were an ordinary case of principal and agent, where the agent, having made a contract in his own name, has been sued on it to judgment, there can be no doubt that no second action would be maintainable against the principal. The very expression that where a contract is so made the contractee has an election to sue agent or principal, supposes that he can only sue one of them, that is to say, sue to judgment. For it may-be that an action against one might be discontinued and fresh proceedings be well taken against the other. Further, there is abundance of authority to shew that where the situation of the principal is altered by dealings with the agent as principal, the former is no longer subject to an action. But this is the case here. The defendants may or may not be liable to indemnify the master in respect of his costs or his imprisonment. But they are clearly liable to him or his estate, in respect of the damages recovered against him, and proceedings might have been taken against them as soon as judgment was recovered against the master, and before any payment by or execution against him. They are now therefore under a liability to the master or his estate to the extent of the whole claim, and yet it is sought to bring them under a fresh liability for that to the plaintiffs.’
Judges:
Bramwell B
Citations:
[1863] EngR 737, (1865) 3 H and C 977, (1863) 159 ER 820
Links:
Jurisdiction:
England and Wales
Cited by:
Cited – Taylor v Van Dutch Marine Holding Ltd and Others ChD 22-Jul-2019
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Lists of cited by and citing cases may be incomplete.
Contract, Agency
Updated: 26 July 2022; Ref: scu.283392