1. Denial of the formation of the contract.

2. Denial of its enforce-ability.

3. Denial of its validity.

Mistake avoiding the contract.

(j) Above, pp. 936 - 938.

(k) Above, pp. 933 - 935.

(l) Above, pp. 5 - 17.

(m) Above, pp. 9, 18, and n. (s), 19, and n. (v), 672, and n. p: below, pp. 976 sq.

(n) Stat. 29 Car. II. c. 3, s. 4; above, pp. 3, 9.

(o) Above, pp. 943 - 945. (p) Above, pp. 666 sq. (q) Above, pp. 667 - 680.

4. Discharge from the contract.

5. Denial of plaintiff's performance of some condition precedent.

6. Denial of the breach.

When judgment has been obtained by or against the vendor for damages for breach of the contract, his obligation to convey the land sold to the purchaser is merged and extinguished in the judgment (d). He is therefore restored to his former position of full owner of the land, and may thenceforth freely deal with it as his own. And it is thought that, on any subsequent sale of the land, a purchaser having notice of the prior contract (e) may safely accept the title, if otherwise good, on receiving proof of the judgment (/). But the vendor suing or sued for damages for breach of his contract to sell land cannot safely make any disposition thereof contrary to the agreement until judgment has been recovered, for until then the purchaser is not estopped from suing for the specific performance of the contract (g). But we have seen {h) that the vendor may lawfully exercise his powers of disposition where the purchaser has committed such a breach of the contract as unquestionably discharges him from his obligation thereunder, and he elects to rescind and not to affirm the contract.

Vendor's position after judgment for damages for or against him.

(r) Above, p. 69.5.

(s) Above, p. 770 sq.

(t) Above, pp. 722 sq.

(u) Above, pp. 784 sq.

(x) Above, pp. 874 sq.

(y) Above, pp. 907 sq.

(z) Above, pp. 509, 936 - 938.

(a) Above, pp. 509,726,937,938.

(b) Above, p. 913.

(c) Berdan v, Greenwood, 3 Ex, D. 251, 255: Hawkesley v. Brad-shaw, 5 Q. B. D. 302: Emden v. Carte, 19 Ch. D. 311, 317; Be Morgan, 35 Ch. D. 492, 499, .500. As to the manner of raising-defences under the present practice, see R. S. C. 1883, Orders XVIIIa. rr. 3, 5, XIX., XXI., XXVIII., XXX., and notes thereto in the Annual Practice.

In connection with the liability of the parties to a contract for the sale of land to be sued at law for breach of the agreement, it will be convenient to explain the position of the persons interested where one of the signatories to the memorandum of contract professes or is alleged to have signed as agent for a named or for an undisclosed principal (i). As a general rule, only the persons named in an agreement as the contracting parties or their representatives in law or their assigns can sue thereon; and the parties alone, or their legal representatives, can be sued thereon at law (k). But an exception occurs in the case of principals, who may sue or be sued on contracts made by their agents, with their authority, notwithstanding that they were not named as parties to the agreement (l). A contract entered into for the sale of land by one who afterwards professes or is alleged to have been acting as agent for some particular principal may have been made in any of the following states of fact:- (1) The agency may have been disclosed and the principal named in the memorandum. (2) The agency may have been disclosed in the memorandum, but the principal may not have been named therein. (3) Neither the agency nor the name of the principal may have been disclosed in the memorandum, the agent contracting ostensibly on his own account.

Position of the parties where one signed the memorandum as agent.

(el) Above, p. 943.

(e) Above, pp. 496, 0.36, 957.

(f) Above, pp. 120, 121.

(g) Consider Hipgrave v. Case, 28 Ch. D. 358; Cornwall v. Wen-son, 1900, 2 Ch. 298; above, pp. 969 sq.

(h) Above, pp. 955 - 957.

(i) See above, pp. 3, 9.

(k) Above, pp. 461 sq., 473. 475, 477, 490, 501; Wms. Pers. Prop. 174, 15th ed.

Now in all cases where, at the time of entering into a contract, one contractor is made aware that the other party is contracting with him as agent for a third person named as principal, and the principal has authorised or ratifies the agent's act, the principal is just as much a party to the agreement as if he had contracted in person; and (subject to the effect of the rules of evidence where the contract is put into writing) it is a question of the intention of the parties to be gathered from the terms of the contract and the circumstances of the case, what liabilities the principal and his agent are to incur to the opposite party (m). Thus, the parties may by their agreement determine that either the principal or the agent shall be exclusively liable, or that they shall both be liable either severally or jointly, or jointly and severally, and that their liability shall be alternative or cumulative. And the rights of the principal and the agent to enforce the contract are in general correlative to their respective liabilities (n).

Where one contracts with another professedly acting as agent for a particular principal, the liability of the principal and agent is determined by the parties' intention.

(l) Thomson v. Davenport, 9 B. & C. 78; 2 Smith, L. C. 379, 11th ed.

(m) Thomson v. Davenport, 9 B. & C. 78; Calder v. Dobell, L. R.

6 C. P. 486

(n) Calder v. Dobell, L. R. 6 C. P. 486, 493, 494; Elbinger Actien-Gesellschaft v. Claye, L. R. 8 Q. B. 313, 317.

Subject to the principle that the rights and liabilities of any parties to a contract are determined by their intention expressed or to be implied therein, and in the absence of any indication of a contrary intention, the rights and obligations of the persons interested will be ascertained by the following general rules: In case (1), where in the memorandum the principal is named and the agent purports to contract on his behalf, the principal, if he previously authorised or subsequently ratified (a) the agent's act, has the right to enforce and is liable to perform the agreement, to the exclusion of the agent, who, as a rule, acquires no rights against (p) and incurs no liability to the other party to the memorandum (q). If, however, the contract were made by deed, then, according to the common law rule that the parties only to an indenture can sue or be sued thereon, the agent alone is liable and he can sue upon the agreement (r). But it appears that under the present law the principal being named in though not made a party to the deed might enforce the agreement in so far as it were a covenant respecting any tenements or hereditaments (s); or he might enforce the contract under the equitable jurisdiction of the Court, if the provisions of the deed were such as to constitute him a cestui-que-trust of the benefit of the agreement (t). Again, the established usage of merchants is that, in the ahsence of express stipulation to the contrary, an agent acting for a foreign principal has no authority to pledge his principal's credit; and on contracts affected, by this usage the agent is alone liable or entitled, to sue(u), in the absence of stipulation to the contrary (x). And. where at the time of entering into the agreement the principal was not in existence or had. not the legal capacity to make the contract, the agent is liable thereon (y). An example of this last doctrine occurs in the case of contracts purporting to be made by an agent on behalf of a company not yet formed. Here the agent is liable upon the contract (y), and the company cannot afterwards ratify the agent's act, as such; though it may, of course, enter into a new agreement with the other contracting party to the same effect (a). If an agent contract on behalf of a principal named in the memorandum when he has no authority to make the contract, and the principal decline to ratify it, then neither the principal nor the agent (b) is liable upon or can enforce the contract; but the other party can sue the agent upon an implied warranty of his authority to make the contract (c), or if the agent fraudulently misrepresented that he had such authority, in an action of deceit (d).