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Cornell University Library 
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 Illustrative cases in agency :with analy 
 
 3 1924 019 245 509 
 
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 The original of tiiis book is in 
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"The Pattee Series." 
 Illustrative Cases for Law School Use. 
 
 "The method of giving instruction in law by the use 
 of cases, to the exclusion of text-books or formal lectures, 
 need not be specially referred to, as a consideration of the 
 merits of that method is not germane to the present pur- 
 pose ; but it is believed that by proper use of cases, in 
 connection with instruction by text-book or lecture, the 
 advantages of the * case system ' may be realized without 
 forfeiting those of the other system. 
 
 "Teachers, by whatever method, constantly refer to 
 cases, and urge the student to examine Ihem. It is in the 
 method of using them and in the relative importance to be 
 given to such study that they greatly differ, and the object 
 is not to advocate any particular method of teaching law, 
 but rather to urge a more effective and satisfactory use of 
 cases, whatever may be the particular plan of instruction. 
 The usual form of citing cases in a lecture or text-book 
 leads the student to look upon the case merely as a corrob- 
 oration of what the lecturer or writer has already said. 
 In this way the entire inductive value of the case, and its 
 disciplinary value as well, is lost. The case becomes not 
 a source of information, but a mere illustration. 
 
 " When resort is had to case study, some general state- 
 ment of the question to be considered and the difficulties 
 surrounding it should first be made to the student; that 
 then, without any statement of tiie law on the question, he 
 should read one or more very carefully selected cases, de- 
 ciding the question in the light of legal reasoning, the 
 cases being such as either adjudicate the question directly 
 or furnish a general rule which may be applied to it. 
 
 " The serious difficulty in the use of cases in connection 
 with lecture or text-book instruction has been that even 
 
where the students have had access to law libraries they 
 have not all been able to read the same cases, and cla=s 
 exercises could not be based on the assumption that they 
 were all familiar with the cases cited. There seems to be 
 no solution for this difficulty except to reprint selections 
 of cases on particular branches of the law, which may thus 
 be iu the hands of each student." 
 
 From the Proceedings of the American Bar Asso- 
 ciation, Section of Legal Education, 1893. 
 
 The need of a series of "Illustrative Cases" upon the 
 various branches of the law has been almost universally felt 
 by the professors and instructors in all the law schools in 
 the United States, and this has caused us to publish " The 
 Pattee Series." 
 
 The author is W. S. Pattee, LL. D., Dean of the Col- 
 lege of Law, University of Minnesota, assisted by Prof, 
 James Paige, LL. M,j of the same College. 
 
 From the Prefaces ; 
 
 " It is the object of this entire series to make a clear and 
 accurate statement of that part of jurisprudence with 
 which the several volumes respectively deal, and to accom- 
 pany each statement with a case illustrating its applica- 
 tion. Such a combination of principle and 'Illustrative 
 Case ' aids both the understanding and the memory. In 
 addition to this advantage, the numerous cases and author- 
 ities cited, which the student is expected to read, furnishes 
 an opportunity for him to examine the principle in its ap- 
 plications to facts and circumstances greatly varying in 
 their nature, interest, and importance. 
 
 "Being 'Illustrative' of the principles considered, I 
 have deemed it desirable to select American cases rather 
 than English, as the student will find an advantage in 
 being familiar with the reports of his own country in the 
 early days of his practice. English authorities, however, 
 are not ignored. T^ey are frequently cited in the notes, 
 it being our object to familiarize the pupil with the his- 
 tory and growth of each principle to which we direct his 
 attention." 
 
"The Pattee Series." 
 Now Ready. 
 
 ALL BOUND IN CLOTH. 
 
 Illustrative Cases in Agency, by Professor Paige, $2.00 
 Illustrative Cases in Contracts, . . . 4.00 
 
 Illustrative Cases in Domestic Relations, by Profes- 
 sor Paige, ....... 4.00 
 
 Illustrative Cases in Partnership, by Professor Paige, 2.00 
 Illustrative Cases in Personalty. Part I, . 2.00 
 
 Illustrative Cases in Personalty. Part II. Sales, 2.00 
 Illustrative Cases in Realty. Part I. Land, 2.00 
 
 Illustrative Cases in Realty. Part II. Estates in 
 Land, * 2.00 
 
 Ready Apeil 10th, 1895. 
 
 Illustrative Cases in Realty. 
 
 Part III. Title to Land. 
 
 To BE Followed by 
 
 Illustrative Cases in "Torts," "Pleading," "Criminal 
 Law," " Commeicial Paper," " Constitutional Law," 
 " Corporation Law," " Evidence," etc. 
 
 This series is not intended to supersede text-books, but 
 rather to supplement them. 
 
 T. & J. W. Johnson & Co., 
 535 Chestnut Street, 
 
 Philadelphia. 
 
 March 15th, 1895. 
 
PATTEE SERIES 
 
 ILLUSTRATIVE CASES 
 
 IN 
 
 AGEISTCT 
 
 WITH ANALYSIS AND CITATIONS. 
 
 BY 
 JAMES PAIGE, LL. M., 
 
 PROFESSOR OF LAW IN THE COLLEGE OF LAW, UNIVEBSITY OF MINNESOTA. 
 
 PHILADELPHIA: 
 
 T. & J. W. JOHNSON & CO. 
 
 1895. 
 
 ;, / 
 
Entered according to Act of Congress, in the year 1895, by 
 
 JAMES PAIGE, LL. M., 
 In the Office of the Librarian of Congres?, at Washington. 
 
PREFACE. 
 
 This collection of " Cases " in Agency has been prepared by- 
 Mr. Paige, lecturer upon that subject in our Law School, and 
 differs little from other books in the series. The legal propo- 
 sition at the head of the case is placed in black-faced type, 
 thus emphasizing it, and at the same time improving the 
 appearance of the page. This is an improvement, we think, 
 as one of the objects in preparing cases at all is to aid the 
 student in procuring a distinct idea of the first principles of 
 primary law. Experience confirms us in the belief that 
 acquisition and application of primary law are greatly assisted 
 by a combination of propositions and cases. 
 
 W. S. PATTEE, LL.D., 
 Dean of the College of Law. 
 
 Univebsity of Minnesota, 
 
 Minneapolis, Minn., Fbb. 1, 1895. 
 
ANALYSIS. 
 
 I. OF THE NATURE AND FORMATION OF THE RELA. 
 TION. 1. 
 
 A. Definitions, 1. 
 
 B. Who Can and who Cannot be Principals, 2. 
 
 1. In General, 2. 
 
 2. Infants, 2. 
 
 q (■ Married Women, 6. 
 
 1 Aliens, 6. 
 4. Persons Non Compos Mentis, 8. 
 
 C. Who Can be Agents, 14. 
 
 1. In General, 14. 
 
 2. Exception — Incompatible Duties, 16. 
 
 D. Joint Principals and Agents, 21. 
 
 1. General Rule as to Joint Principals, 21. 
 
 2. Exception — Partnership, 23. 
 
 3. Joint Agents — Private, 26. 
 
 4. Joint Agents — Public, 29. 
 
 E. Classes of Agents, 32. 
 
 1. General, 32. 
 
 2. Special, 37. 
 
 F. Appointment, 42. 
 
 G. Ratification, 45. 
 
 1. Defined, 45. 
 
Vi ANALYSIS. 
 
 G. Ratification — Continued. 
 
 2. What May Be Ratified, 49. 
 
 Voidable Acts, 49. 
 
 Torts, 50. 
 
 Forgery, 58. 
 
 Same — The Contrary Opinion, 61. 
 
 3. Requisites of Ratification, 65. 
 
 Capacity of Principal, 65. 
 Knowledge of Material Facts, 67. 
 Principal Must Ratify All, 70. 
 
 Acts Must Have Been Done on Principal's Be- 
 half, 70. 
 
 4. Express Ratification, 74. 
 
 Same Formalities Required as to Confer Original 
 Authority, 74. 
 
 5. Implied Ratification, 79. 
 
 6. Effect of Ratification, 82. 
 
 Exception — Torts, 82. 
 
 II. OF AUTHORITY, 87. 
 
 A. In General, 87. 
 
 1. Defined, 87. 
 
 2. Must Be Proved in Order to Charge Principal, 87. 
 
 3. Expressed Authority, 89. 
 
 4. Implied Authority, 93. 
 
 5. Private Instructions, 97. 
 
 General Agents, 97. 
 Special Agents, 108. 
 
 6. Delegatus Non Potest Delegari, 106. 
 
 Exceptions — Ministerial Duties, 108. 
 
 Necessity or Custom, 113. , 
 
 B. Consteuction of Authority, 116. 
 
 1. When Written, 116. 
 
 2. When Implied, 122. 
 
 3. When Ambiguous, 125. 
 
 4. When of a Certain Kind, 130. 
 
ANALYSIS. Vll 
 
 C. Manner of Execution, 133. 
 
 1. In General, 133. 
 
 2. Specialties, 135. 
 
 3. Simple Contracts, 137. 
 
 III. OF THE RIGHTS AND DUTIES OP THE PARTIES 
 TO THE CONTRACT, 143. 
 
 A. Duties of Agent' to Peincipal, 143. 
 
 1. Good Faith, 143. 
 
 2. Obedience to Instructions, 145. 
 
 3. Due Care, 150. 
 
 4. Accounting, 155. 
 
 5. Notice, 159. 
 
 B. Duties of Agent to Third Parties, 160. 
 
 1. Implied Warranty of Authority, 160. 
 
 Exception — Where Third Party Has Notice of all 
 Material Facts, 165. 
 
 2. Agent Acting as Principal Personally Bound, 168. ' 
 
 3. Otherwise Not, 169. 
 
 4. Frauds, 172. 
 
 C. Duties op Principal to Agent, 173. 
 
 1. Compensation, 173. 
 
 2. Expenses. 
 
 D. Liabilities of Principal to Third Parties, 178. 
 
 1. Disclosed Principals, 178. 
 
 2. Undisclosed Principals, 184. 
 
 Simple Contracts, 184. 
 Specialties, 187. 
 
 3. Torts of Agent, 194. 
 
 E. Liabilities of Third Parties to Agent, 197. 
 
 1. When Contract is in Agent's Name, 197. 
 
 2. For Injuries to Principal's Property. 
 
 F. Liabilities of Third Parties to Principal, 202. 
 
Vlll ANALYSIS. 
 
 IV. OF THE MANNER OF TERMINATING THE RELA- 
 TION, 206. 
 
 A. Undee the Terms of the Appointment, 206. 
 
 1. By Performance of the Commission, 206. 
 
 Performance by the Agent, 206. 
 Performance by Another, 209. 
 
 2. By Lapse of Time, 210. 
 
 B. By Revocation of Authority, 215. 
 
 Exception — Agency Coupled with Interest, 219. 
 Modification — Agency Presumed to Continue in the 
 Absence of Notice, 222. 
 
 C. By Agent's Resignation or Refusal to Act, 227. 
 
 p. By Operation of Law, 230. 
 
 1. Death of Principal or Agent, 230. 
 
 Exception — Mortgage. 
 
 2. Insanity of Principal or Agent, 231. 
 
 8. Bankruptcy of Principal or Agent, 237. 
 
TABLE OF CASES. 
 
 
 
 PAGE 
 
 Ahern v. Baker, 
 
 34 Minn. 98 
 
 209 
 
 Armitage v. Widoe, 
 
 36 Mich. 124 
 
 2 
 
 Baldwin v. Potter, 
 
 46 Vt. 402 
 
 155 
 
 Barrows v. Cushway, 
 
 37 Mich. 481 
 
 227 
 
 Billings v. Morrow, 
 
 7 Cal. 171 
 
 67 
 
 Blackwell v. Ketchem, 
 
 53 Ind. 184 
 
 103 
 
 Boynge v. Field, 
 
 81 N. Y. 159 
 
 , 169 
 
 Briggs v. Partridge, 
 
 64 N. Y. 357 
 
 187 
 
 Brinley v. Mann, 
 
 2 Gush. 337 
 
 135 
 
 Butler v. Maples, 
 
 9 Wall. 766 
 
 97 
 
 Button v. "Winslow, 
 
 53 Vt. 430 
 
 168 
 
 CoLBURN V. Phillips, 
 
 13 Gray, 64 
 
 197 
 
 Craighead v. Peterson, 
 
 72 N.Y. 279 
 
 116 
 
 Darr v. Darr, 
 
 59 Iowa, 81 
 
 , 230 
 
 Davis v. Lane, 
 
 10 N. H. 156 
 
 231 
 
 Deakin v. Underwood, 
 
 37 Minn. 98 
 
 23 
 
 Dorchester v. New England, 
 
 1 Gush. 177 
 
 113 
 
 Graves v. Horton, 
 
 38 Minn. 66 
 
 42, 87 
 
 GuNDLACH V. Fischer, 
 
 59 ni. 172 
 
 210 
 
 Hall v. Harper, 
 
 17 111. 82 
 
 79 
 
 Hamlin v. Sears, 
 
 82 N. Y. 327 
 
 70 
 
 Hazeltine v. Miller, 
 
 44 Me. 177 
 
 93 
 
 Hecker v. De Groot, 
 
 15 How. Pr. 314 
 
 172 
 
 Hegenmyer v. Marks, 
 
 37 Minn. 6 
 
 143, 159 
 
 HOUGHTALING V. MaRVIN, 
 
 7 Barb. 412 
 
 219 
 
 Huntington v. Knox, 
 
 7 Gush. 371 
 
 202 
 
 Johnson v. Hurley, 
 
 115 Mo. 513 
 
 178 
 
 IX 
 
X TABLE OF 
 
 CASES. 
 
 PAGE 
 
 Kenton v. McClellan, 
 
 43 Mich. 564 
 
 6 
 
 IvORNEMANN V. MoNAGHAN, 
 
 24 Mich. 36 
 
 87 
 
 KeOEGER V. PiTCAIRN, 
 
 101 Pa. St. 311 
 
 160 
 
 Ladd V. Franklin, 
 
 37 Conn. 53 
 
 37 
 
 Laverty v. Snethen, 
 
 68 N. Y. 522 
 
 145 
 
 Loudon Society v. Hagerstown, 
 
 36 Pa. St. 498 
 
 32 
 
 LovELL V. Williams, 
 
 125 Mass. 439 
 
 184 
 
 Lynn v. Burgoyne, 
 
 13 B. Men. 400 
 
 106 
 
 Lyon ■;;. Kent, 
 
 45 Ala. 656 
 
 14 
 
 McNeilly ■«. Continental, 
 
 66 N. Y. 23 
 
 222 
 
 Martin v. Lemon, 
 
 26 Conn. 192 
 
 29 
 
 Matthi'essen v. McMahon, 
 
 38 N. J. L. 536 
 
 8 
 
 Michael v. Jones, 
 
 84 Mo. 578 
 
 165 
 
 Minnesota v. Montague, 
 
 65 Iowa, 67 
 
 125 
 
 Moon v. Stone, 
 
 40 Iowa, 259 
 
 206 
 
 Morehouse v. Northrop, 
 
 . 33 Conn. 380 
 
 50 
 
 Noble v. Cunningham, 
 
 74 111. 51 
 
 194 
 
 O'Connor v. Arnold, 
 
 53 Ind. 203 
 
 65 
 
 Parker v. Smith, 
 
 16 East, 382 
 
 237 
 
 Peabody v. Hoard, 
 
 46 111. 242 
 
 89 
 
 Rollins v. Phelps, 
 
 5 Minn. 463 
 
 26 
 
 Sanford v. Johnson, 
 
 24 Minn. 172 
 
 49 
 
 Sewell v. Holland, 
 
 61 Ga. 608 
 
 21 
 
 Spofford v. Holes, 
 
 29 Me. 148 
 
 74 
 
 SussDORF V. Schmidt, 
 
 55 N. Y. 319 
 
 173 
 
 State v. Torn i us. 
 
 26 Minn. 1 
 
 45 
 
 Taussig v. Hart, 
 
 58 N. Y. 425 
 
 16 
 
 Thomas v. Joslin, 
 
 30 Minn. 388 
 
 133 
 
 Tucker Mfg. Co. v. Fairbanks, 
 
 98 Mass.i 10] 
 
 137 
 
 Walker v. Denison, 
 
 86 111. 142 
 
 215 
 
 Wellington v. Jackson, 
 
 121 Mass. 157 
 
 58 
 
 Whitney v. Martine, 
 
 88 N. Y. 535 
 
 150 
 
 Williams v. Butler, 
 
 35 111. 544 
 
 82 
 
 Williams v. Getty, 
 
 31 Pa. St. 461 
 
 122 
 
 Williams v. Woods, 
 
 16 Md. 220 
 
 108 
 
 Workman v. Wright, 
 
 33 Ohio St. 405 
 
 61 
 
ILLUSTRATIVE CASES 
 
 IN 
 
 AGENCY. 
 
 I 
 
 OF THE NATUEE AND FOEMATION OF THE 
 KELATION. 
 
 DEFINITIONS. 
 
 Agency is a legal relation, founded upon the express or im- 
 plied contract of the parties or created by law, by virtue of 
 which one party, the agent, is employed and authorized to 
 represent and act for the other, the principal, in business deal- 
 ings with third persons.^ 
 
 The principal is the person from whom the authority is de- 
 rived." '<fS 
 
 An agent is a person duly authorized to act on behalf of 
 another, or one whose unauthorized act has been duly ratified.* 
 
 Authority or power is the right arising out of the contract of 
 agency whereby an agent has the capacity to act on behalf of 
 another.* 
 
 Authority may be conferred by an express, implied, oral, or 
 written contract. If conferred by an instrument under seal 
 the instrument is termed a letter or power of attorney.^ 
 
 ' Co. Litt. 270 ; Ewell's Evans on Agency, 1 ; Mechem on Agency, 1. 
 
 'Mechem, ? 1. 
 
 'Co. Litt. 207; Ewell's Evans, 1. 
 
 *Ewell'sEvans, 2. 
 
 «Story, ? 57 ; Mechem, 273, 274 ; Ewell's Evans, 16. 
 
 1 
 
2 ILLUSTRATIVE CASES 
 
 B 
 
 WHO CAN AND WHO CANNOT BE PRINCIPALS. 
 
 1 
 
 In General. 
 
 Any person having legal and natural capacity to act can act 
 through an agent. 
 
 Ooombe's Case, 9 Co. Rep. 135 ; Lyon i'. Kent, 45 Ala. 656 ; Lea v. Bringier, 
 19 La. An. 197 ; Bishop on Contracts, 1026, 1122 ; Story on Agency, 5, 6 ; 
 Mechem on Agency, 43 ; Wharton on Agency, 9. 
 
 Infants. 
 
 Infants, not having legal capacity to contract, cannot be princi- 
 pals. 
 
 Armitage v. Widoe. 
 
 Supreme Court of Michigan, 1877. 
 
 36 Mich. 124. 
 
 CooLEY, C. J. This action is brought to recover back 
 $400 paid in the plaintiff's name on a contract for the pur- 
 chase of lands. The contract was entered into April 24, 1875, 
 and purports to be between Jesse C. Widoe as vendor and 
 Henry Armitage as vendee. The purchase price was |13,000, 
 of which $3,000 was payable on or before May 10, 1875, and 
 the balance in ten annual installments of |1,000 each, with 
 annual interest. Henry Armitage was about seventeen years 
 of age at the date of the contract, and his name was signed to 
 it by William H. Armitage, his father. The plaintiff, by his 
 own evidence showed that he was ignorant of the contract at 
 the time it was made, and never saw it until after this suit was 
 brought ; that he had no money to pay upon it and did pay 
 none ; and that his father told him what had been paid on the 
 contract was to be recovered back in his, the son's, name. The 
 father was sworn as a witness, and testified that he made the 
 
IN AGENCY. d 
 
 contract and paid the money for his son, and that the son 
 afterward, on being informed of it, assented to what had been 
 done. There is some complaint of refusal or unwillingness on 
 the part of the defendant to perform the contract on his part, 
 and on the contrary he relies upon it as a valid contract, and 
 offers to perform, but the suit appears to be grouiided upon the 
 right of an infant to disaffirm his contract and recover back 
 what has been paid upon it. 
 
 I. Obviously the first question in the case is, how this infant, 
 who had nothing to do with the making of this contract in the 
 first place', has become entitled to any benefit under or because 
 of it. If he has any right at all, it would seem that he must 
 have acquired it in one of three ways ; no other being con- 
 ceivable. These are : 
 
 1. By virtue of the contract itself, made in his name, and 
 which, though made without his knowledge, purported to as- 
 sure to him rights which we may suppose were of value. 
 
 2. By the adoption of the act of his father in making the 
 contract. 
 
 3. By accepting the contract as a gift from his father. 
 
 It is not claimed, as we understand it, that by the contract 
 itself, independent of any action afterward taken, the infant 
 would have had anj' rights at all. No contract is binding 
 upon any party until he assents to it. Even a deed must be 
 delivered and accepted ; and much more must a contract be 
 which contains onerous conditions, and assumes to bind the 
 party to the payment of a large sum of money. Any sug- 
 gestion therefore, that the contract as made entitled the infant 
 to any rights, may be dismissed from consideration. If when 
 made it was a valid contract in favor of any one as vendee, 
 it must have been in favor of the father, who, having made it 
 in the name of another person without authority, might pos- 
 sibly have been compelled to perform it as his own contract, 
 and been entitled to the benefit of it as his own. What rights 
 there may have been by or against him, we need not consider, 
 as they are not involved in this litigation. 
 
 II. If the contract became that of the infant through the 
 
4 ILLUSTRATIVE CASES 
 
 adoption of the act of his father in making it, it must be be- 
 cause the infant has thus retrospectively made the father his 
 agent. This, and this only, must be the force of the adoption ; 
 it is giving authority retrospectively, by claiming as his own 
 that which without authority at the time was done in his 
 name. 
 
 Had the infant in the first place undertaken to make another 
 his agent to enter into the contract for him, the appointment 
 would not have been valid. On the authorities no rule is 
 clearer than that an infant cannot empower an agent or at- 
 torney to act for him : Whitney v. Dutch, 14 Mass. 457, 460 ; 
 Lawrence's Lessee v. McArter, 10 Ohio, 37 ; Fonda v. Van 
 Home, 15 Wend. 631, 635 ; Trueblood v. Trueblood, 8 Ind. 
 195 ; Cole v. Pennoyer, 14 111, 158 ; Knox v. Flack, 22 Pa. St. 
 337 ; Sadler v. Robinson, 2 Stew. (Ala.) 520 ; Robbins v. 
 Mount, 4 Robt., N. Y. 553. But if he cannot appoint an agent 
 or attorney, it is clear he cannot affirm what one has assumed 
 to do in his name as such. He cannot afSrm what he could 
 not authorize: Doe v. Roberts, 16 M. & W. 778, 781 ; Fonda 
 V. Van Home, 15 Wend. 631, 636 ; Trueblood v. Trueblood, 
 supra. It would be extraordinary if a party who has no power 
 to do a particular act could yet do it indirectly by the mere act 
 of adoption. Such a doctrine would deprive the infant wholly 
 of his protection ; for one has only to change the order of pro- 
 ceeding, assume to act for the infant first and get his authority 
 afterward, and the principle of law which denies him the 
 power to give the authority is subverted. But such a doctrine 
 is wholly inadmissible. The protection of infancy is a sub- 
 stantial one, and is not to be put aside and overcome by indi- 
 rect methods. 
 
 III. Did the infant become entitled to the contract by the 
 gift of his father? That he did, might perhaps be claimed 
 with some degree of plausibility had the payment made on 
 the contract been the whole or the principal part of the pur- 
 chase price. But the payment was in fact insignificant when 
 compared with what remained to be paid. If the infant took 
 the contract, he took it with all its conditions, one of which 
 
IN AGENCY. 5 
 
 TFas the payment of the sum of $12,600 in the manner pro- 
 vided for therein. Now there can be no presumption what- 
 ever that such a gift was for the benefit of the infant, and 
 «ven- if he were an adult, acceptance could not be presumed 
 writhout some express evidence to establish it. In this case, 
 instead of there being evidence that the infant accepts the con- 
 tract, the suit itself assumes that he rejects it. 
 
 But treating the act of the father as a gift to his son, how 
 •does this entitle the son to demand and receive back the $400 
 paid on the contract? This sum never belonged to the son, 
 and there is no pretense that it was ever given to him. The 
 gift was of a right under the contract acquired by means of 
 the payment of this sum. This right is offered to the son, and 
 according to the testimony of the father, he at first accepts it, 
 but then turns around and says in efi'ect : " No, I will not take 
 this right, but I will demand and have what was paid for it." 
 If he may do this, then what he obtained from his father was 
 not the contract itself, but the right to repudiate the contract. 
 But the right to repudiate a contract is not the subject of gift at 
 all. Besides the father never had it to give. If the contract 
 was valid in his hands, he could not repudiate it, and he could 
 .Bot empower another to do what he could not do himself 
 
 In what has thus far been said, we have not touched upon 
 the authority of the infant to disaffirm a contract of purchase 
 before coming of age. If the contract had become his in any 
 Tvay, it would be, we take it, only a voidable contract, and in 
 Dunton V. Brown, 31 Mich. 182, the right to disaffirm a void- 
 able contract during infancy was denied. But it is enough in 
 this case to show that the infant never became entitled either 
 to the contract or to the moneys paid under it. 
 
 The judgment must be affirmed, with costs. 
 
 Lawrence v. McArter, 10 Ohio, 37 ; Bennett v. Davis, 6 Cow. .393 ; Cole v. 
 Pennoyer, 14 111. 158 ; Fonda v. Van Home, 15 Wend. 631, 635 ; Philpot v. 
 Bingham, 55 Ala. 435 ; Knox v. Flack, 22 Pa. St. 337 ; Mechem, 51, 56 ; True- 
 blood V. Trueblood, 8 Ind. 195. 
 
 Some cases hold that an infant can appoint an agent to perform an act un- 
 <lueBtionably for his interest : Tucker v. Moreland, 10 Pet. (U. S.) 58 ; Whit- 
 ney v. Dutch, 14 Mass. 457. 
 
6 ILLUSTRATIVE CASES 
 
 3 
 
 Married Women and Aliens. 
 
 TTnder the common law married ■women and aliens, not having- 
 legal capacity to contract, cannot be principals. 
 
 Kenton Ins. Co. v. McClellan. 
 
 Supreme Court of Michigan, 1880. 
 
 43 Mich. 564. 
 
 Campbell, J. Plaintiflf sued defendant, who is a married 
 woman, upon a promissory note made by her and payable to 
 the order of plaintiff for $290.42, dated September 4, 1877^ 
 and payable at nine months. She defends on the ground that 
 the note was not given on such a consideration as binds her.. 
 
 A preliminary objection that this defense was waived by 
 failure to file affidavit under Rule 79 has no force. Defendant 
 does not dispute the execution of the note. Her defense is want 
 of capacity to make it, except on a particular consideration. 
 
 It has been held uniformly by this Court that our statutes 
 do not authorize a married woman to become personally liable 
 on an executory promise except concerning her separate es- 
 tate. A note given for any other consideration is void : De- 
 Vries v. Conklin, 22 Mich. 255 ; West v. Laraway, 28 Mich. 
 464 ; Emery v. Lord, 26 Mich. 431 ; Ross v. Walker, 31 Mich.. 
 120 ; Jenne v. Marble, 37 Mich. 319 ; Kitchell v. Mudgett, 37 
 Mich. 81 ; Carley v. Fox, 38 Mich. 387 ; Johnson v. Suther- 
 land, 39 Mich. 579; Rnssel v. People's Savings Bank, 39' 
 Mich. 671 ; Gantz v. Toles, 40 Mich. 726. 
 
 It has also been settled that there is never any presumption 
 of validity of such an undertaking, whether negotiable or not, 
 and that proof must always be given of such a consideration 
 as will bind her. We think that the rule must apply whether 
 value received is expressed or not, because the power is not 
 general, but statutory, and cannot be extended beyond the- 
 constitutional and statutory limits. See Powers v. Russell, 26 
 Mich. 179 ; Emery v. Lord, 26 Mich. 431 ; West v. Laraway, 
 28 Mich- 464 ; Johnson v. Sutherland, 39 Mich. 579. 
 
IN AGENCY. 7 
 
 It was held in the latter case that a bona fide holder was no 
 better off than any one else, as against the disability of cover- 
 ture. But inasmuch as plaintiff here is the original payee, it 
 is not a bona fide holder: Rickle v. Dow, 39 Mich. 91. 
 
 The evidence showed without contradiction that this note 
 was given by defendant to her son, August Kuenzel, to use as 
 security for a debt of a firm of Wright & Kuenzel, in which he 
 was a partner. That he gave it to one Jackson, plaintiff 's 
 agent, and took back from him an assignment to defendant 
 from plaintiff of that debt, which had already been executed 
 by plaintiff and was in Jackson's hands. Defendant never 
 knew of this and never authorized it. 
 
 A married woman cannot give to an agent any power which 
 she does not possess herself, and cannot therefore appoint any 
 agents that could bind her except concerning her property. 
 Persons dealing with them must inquire into their powers. In 
 the present case there is no evidence tending to show that any 
 such inquiry was made, or that plaintiff or its agent acted in 
 reliance upon any supposed authority, or in ignorance of the 
 facts. The record is not inconsistent with the possibility that 
 Jackson and the plaintiff made the assignment as a mere 
 sham. There is no evidence or any bargain for an assign- 
 ment supposed to have been made on the credit of defendant. 
 All that appears is a delivery of an assignment which had 
 already, been executed, in exchange for defendant's paper. It 
 does not appear that the bargain was made at this time, if it 
 was made at all, and there is no pretense that any earlier bar- 
 gain or negotiation was made really or ostensibly on defend- 
 ant's behalf. 
 
 When the case was closed, therefore, no cause of action was 
 made out, and the Court properly directed a verdict for de- 
 fendant. 
 
 The judgment must be affirmed with costs. 
 
 Mechem, 56; Schouler Dom. Eel. 58; Weisbrod v. Chicago & North- 
 western Ry. Co., 18 Wis. 40 ; McLaren v. Hall, 26 Iowa, 297 ; Rowell v. Klein, 
 44 Ind. 290. 
 
 In most of the American States this disability is partly or altogether re- 
 
8 ILLUSTRATIVE CASES 
 
 moved by statute : N. Y. Rev. Stats., p. 2606, L. 1884, ch. 381 ; Mass. Pub. 
 Stats., ch. 147, § 2 ; Minn. Gen. Stats., 1878, ch. 69, ? 2. 
 
 Husband can be wife's agent : Comfort v. Sprague, 31 Minn. 405. Wife 
 can be husband's agent : Meader v. Page, 39 Vt. 306. 
 
 4 
 
 Persons Nox Compos Mentis. 
 
 Persons non compos mentis, not having natural capacity to contract, 
 cannot be principals. If, however, the condition of the principal's 
 mind is unknb'wn to the other party and the agreement is fair and 
 equitable, the unsoundness vrill not vitiate the contract. 
 
 Mattheissen Rep. Co. v. McMahon's' Adm'r. 
 
 Court of Errors and Appeals of New Jersey, 1876. 
 
 38 N. J. L. 536. 
 
 Depue, J. The controversy in this case was between the 
 administrator of McMahon and the Refining Company with 
 respect to the title to certain property — barrels and cooperage 
 stock. 
 
 The defendants claimed property in the goods under an 
 alleged purchase from McMahon, at an interview between 
 him and the president of the company on the 2d of Decem- 
 ber, 1871. 
 
 There was some testimony of the sale of the same property 
 to the defendant, negotiated by one Shandly, under a power of 
 attorney from McMahon, but as the title relied on at the trial 
 was mainly under the agreement of the 2d of December, and 
 as the questions raised by the bill of exceptions are common 
 to both transactions, the case will be treated in respect to the 
 agreement entered into at that time. 
 
 At the time of the interview of the 2d of December, Mc- 
 Mahon was indebted to the company in the sum of about 
 $11,000. It will be assumed that a bargain was then con- 
 cluded that McMahon should sell the goods to the company 
 
IN AGENCY. 9 
 
 in payment of his indebtedness, and that the property in them 
 should pass to the company immediately. 
 
 * * * * * * *'* 
 
 Exception was taken to the charge of the Court as to the 
 efifect of the insanity of a contracting party on his contracts. 
 
 The goods, in fact, were delivered into the possession of the 
 defendants by Shandly, the superintendent of McMahon's 
 business. The effect of this delivery was met by the plain- 
 tiff by testimony that McMahon was incapable of transacting 
 business during the time of the delivery, by reason of in- 
 sanity. There was evidence that the deceased exhibited 
 symptoms of a disordered intellect as early as the commence- 
 ment of the delivery of the goods, which continued until his 
 death. 
 
 The Judge having charged that there was no evidence of 
 part payment, to make the contract good within the statute of 
 frauds, and that its validity was dependent on a delivery and 
 acceptance of the goods sold, or of some part thereof, sub- 
 mitted as the question for the jury whether McMahon was 
 competent to make the bargain, and, if so, whether his com- 
 petency continued so as to enable him to complete and per- 
 fect the bargain by deliverv. This presentation of the ques- 
 tion, as well as the instruction that the burden of proving the 
 mental incapacity of the deceased, was on the plaintiff, and 
 that the plaintiff must satisfy the minds of the jury, by the 
 proof he adduces of that fact, were correct. 
 
 The instruction was, that the contracts of lunatics and in- 
 sane persons were invalid, and not binding, with a qualifica- 
 tion that if Mattheissen, acting as the agent of tlie company, 
 was dealing with McMahon or his agent in the ordinary course 
 of business, in good faith, without any knowledge of the in- 
 sanity or mental disturbance of McMahon, and without the 
 knowledge of such circumstances as would put a reasonably 
 prudent man upon inquiry, made the bargain in good faith, 
 then that would be a good bargain, and neither McMahon nor 
 his representative could set up the insanity against it. Ex- 
 ception was taken to the refusal of the Judge to add a direc- 
 
10 ILLUSTRATIVE CASES 
 
 tion that nothing but imposition on an insane person will 
 avoid his contract. 
 
 The instruction as given is in accord with the principle 
 estabhshed by the modern English cases and the decisions of 
 our Courts, as the general rule in dealing with the contracts 
 of lunatics : Yauger v. Skinner, 1 McCarter, 389 ; Eaton v. 
 Eaton, 8 Vroom, 108 ; Molton v. Camroux, 2 Exchq. 487 ; 
 s. c, 4 lb. 17 ; Beavan v. McDonell, 9 lb. 309 ; Elliott v. Ince, 
 7 DeG., M. & G. 475. 
 
 There is a class of cases such as Baxter v. Earl of Ports- 
 mouth, 2 C. & P. 178, in which imposition upon a lunatic — 
 advantage taken of his mental infirmity — is held to be an 
 essential ingredient of the defense; But these are cases of 
 contracts for necessaries — contracts which lunatics, known to 
 be such, are capable of entering into and are exceptions to 
 the general rule. Other contracts with lunatics not strictly 
 for necessaries — which have been fully executed, and on which 
 a consideration of benefit to the lunatic has been given, may 
 be within the reason of this exception, where the transaction 
 is shown to be perfectly fair and reasonable, at least, so far as 
 to allow the recovery back of the consideration given, or to 
 prevent a rescission by the lunatic or his representatives, with- 
 out restoring the consideration, whenever a restoration is prac- 
 ticable. The liability of the lunatic in such cases is upheld, 
 not on the ground of the contract, but on the fact that the 
 lunatic has received and enjoyed an actual benefit from the 
 contract. This view is advanced by Pollock, C. B., in Gore 
 V. Gibson, 13 M. & W. 626, and by Redfield, C. J., in Lin- 
 coln V. Buckmaster, 32 Vt. 658. On this principle Brown v. 
 Jodrell, 3 C. & P. 30 ; Dane v. Kirkwall, 8 lb. 675 ; Niell 
 V. Morley, 9 Vesey, 478 ; Selby v. Jackson, 6 Beavan, 192 ; 
 and the observations of Shaw, C. J., in Arnold v. Rich- 
 mond Iron Works, 1 Gray, 434, may be reconciled with the 
 other cases. 
 
 In Eaton v. Eaton, the Court treated the effect of the con- 
 sideration given as overcome by proof of imposition and 
 actual fraud in obtaining the conveyance. But this case is 
 
IS AGENCY. 11 
 
 not within any of these exceptions. The defendants did not 
 part with any money or consideration of value under this con- 
 tract. They proposed merely a credit of the contract price on 
 an existing indebtedness, which was rendered nugatory by the 
 operation of the statute of frauds. 
 
 The general rule, which must govern this case, is, that ab- 
 sence of knowledge of the insanity of the party, as well as fair- 
 ness in other respects, must concur to give validity to a con-^ 
 tract with a lunatic. Knowledge or information, such as would 
 lead a prudent person to the belief of the incapacity, is such 
 evidence of bad faith as will avoid the contract : Lincoln v. 
 Buckmaster, 32 Vt. 652. In Yauger v. Skinner, the rule is 
 stated by Chancellor Gkeen to be, " that if the proof be clear 
 that an executory contract to purchase was made in good faith, 
 and for a full, fair price, when the lunacy of the vendor was 
 neither known nor suspected, and that the contract was executed 
 on the part of the purchaser without knowledge or belief of 
 the existence of the incapacity of the grantor, the contract will 
 be upheld." In Elliott v. Ince, Lord Ckanwokth states the 
 result of the authorities to be, " that dealings of sale and 
 purchase by a person apparently sane, though subsequently 
 found to be insane, will not be set aside as against those who 
 have dealt with him on the faith of his being a person of compe- 
 tent understanding." In Price v. Berrington, 7 Hare, 402, Vice- 
 Chancellor Shadwell says : " I do not understand it to be 
 denied, that if the party treating with the lunatic knew of the 
 lunacy, that is a fraud." In Molton v. Camroux, as reported 
 in 2 Exchq. 501, Pollock, C. B., says: "The rule, as laid 
 down by Littleton and Coke, has, no, doubt, in modern times 
 been relaxed, and unsoundness of mind would now be a good 
 defense, if it could be shown that the defendant was not of 
 capacity to contract, and the plaintiff knew it." In Beavan v. 
 McDonell, 9 Exchq. 309, the action was by a lunatic to re- 
 cover back a deposit made on a contract to purchase lauds. To a 
 plea alleging receipt of the money under the contract, the plain- 
 tiff replied, that when the contract was made, and money paid, 
 he was a lunatic and incapable of contracting, and that the con- 
 
12 ILLUSTRATIVE CASES 
 
 tract was not of any benefit to him, and averred that the de- 
 fendant, at the, time, etc., had notice. • The defendant rejoined 
 that neither the vendors nor the defendant, when the plaintiff 
 made the contract, or paid the money, " knew that he was a 
 lunatic or of unsound mind, and incapable, by reason of un- 
 soundness of understanding the meaning of a contract, but 
 made the said contract with him fairly and in good faith, be- 
 lieving that he was able to understand the same." In none of 
 the pleadings was any illusion made to imposition or advan- 
 tage taken of the lunatie in the bargain. The defense was 
 made solely on the ground of unsoundness of mind and knowl- 
 edge of that fact by the opposite party ; and by the rejoinder, 
 an issue was tendered on the averment of knowledge. On de- 
 murrer to the rejoinder the pleadings were held to be good. 
 The case was afterward tried on that issue, and resulted in a 
 verdict for the plaintiff, which was sustained, as appears by the 
 report of the case in 10 Exchq. 183. 
 
 In Gore v. Gibson, 13 M. & W. 623, to an action against an 
 indorser of a bill of exchange, the defendant pleaded that 
 when he indorsed the bill he was so intoxicated, and thereby 
 so entirely deprived of sense, understanding, and the use of 
 his reason as to be unable to comprehend the meaning, nature, 
 or effect of the indorsement, or to contract thereby, of which 
 the plaintiff, at the time of the indorsement, had notice. On 
 demurrer it was contended that the plea, to be good, should 
 have averred that the intoxication was procured by the plain- 
 tiff, or that he took advantage of it. The Court nevertheless 
 held the plea to be good. In Matthews i;. Baxter, L. R. 8 
 Exch. 132, the plea was in the same form. 
 
 The instruction given without the addition prayed for, was 
 as favorable to the defendants as the facts would warrant. 
 
 The instruction that the agency of Shandly was revoked by 
 the insanity of his principal, as qualified by the passage above 
 quoted, was correct. 
 
 Notwithstanding the declaration of Chancellor Kent (2 
 Kent, 645), " that the better opinion would seem to be that the 
 fact of the existence of the lunacy must have been previously, 
 
IN AGENCY. 13 
 
 established by inquisition/before it could control the operation 
 of the power," the weight of authority, as well as sound 
 reasoning, lead to the conclusion that the after-occurring in- 
 sanity of the principal operates per se, as a revocation or sus- 
 pension of the agency, except in cases where a consideration 
 has previously been advanced in the transaction which was the 
 subject-matter of the agency, so that the power became coupled 
 with an interest ; or where a consideration of value is given 
 by a third person, trusting to an apparent authority in igno- 
 rance of the pjrincipal's incapacity : Story on Agency, § 481 ; 
 Bunce v. Gallagher, 5 Blatch. C. C. 481 ; Davis v. Lane, 10 
 New Hamp. 156. Justice Story states the principle to be that 
 " as the party himself, during his insanity, could not person- 
 ally do a valid act, his agent cannot, in virtue of a derivative 
 authority, do an act for and in his name which he could not 
 lawfully do for himself." From this principle the conclusion 
 inevitably results that transactions of third parties, whicli, 
 under the circumstances, would be invalid if had directly 
 with the principal, must be equally invalid though they be 
 done with the agent. Saving the rights of persons who, be- 
 fore the insanity intervened, became interested in the power by 
 reason of a consideration advanced, or who, in ignorance of 
 the incapacity, in good faith parted with a consideration of 
 value, relying on the apparent authority of the agent, com- 
 plete justice will be done, and the law on this subject be made 
 to harmonize. 
 
 Molton V. Camroux, 2 Ex. 487; Mechem, 47, 48; Story, 6; Wharton, 10; 
 Behrens v. McKenzie, 23 la. 333; Young v. Stevens, 48 N. H. 133; N. W. 
 Mut. Fire Ins. Co. v. Blankenship, 94 Ind. 535. 
 
14 ILLUSTRATIVE CASES 
 
 C 
 
 WHO CAN BE AGENTS. 
 
 In General. 
 
 Any person of sufficient intelligence to comprehend instructions 
 may be an agent. 
 
 Lyon v. Kent. 
 
 Supreme Court of Alabama, 1871. 
 
 45 Ala. 656. 
 
 Kent, Payne & Co., the plaintiffs, were residents of Rich- 
 mond, Va., on January 17, 1865, and owned certain cotton 
 which was in the custody of their agent in Alabama. On the 
 above-mentioned date they gave to James W. Singleton, a 
 citizen of Illinois, an order on said agent for all the cotton 
 belonging to them in his hands. Singleton sold the cotton to 
 one Guy, who stored it with Lyon & Co., defendants herein. 
 Plaintiffs bring this action of detinue for the cotton, alleging 
 that the order given to Singleton was given simply to enable 
 him to take possession of the cotton as agent of plaintiffs and 
 save it from confiscation as contraband goods. Defendants 
 claim that the transfer to Singleton was absolute. There was 
 judgment for plaintiffs and defendants appealed. 
 
 Peters, J. The only negotiation that Singleton had with 
 the firm of Kent, Payne & Co., touching the cotton, took place 
 in January, 1865, at Richmond, Virginia. If there was a sale 
 at all, or any contract entered into between Singleton, a citizen 
 of Illinois, and Kent, Payne & Co., citizens of Virginia, by 
 which any title or interest in the cotton was attempted to be 
 passed from the one to the other, it was wholly void and inca- 
 pable of ratification. No trading between these parties was 
 then allowable without a permit of the government. And the 
 President's pass was not sufficient for that purpose : McKee v. 
 United States, 8 Wall. 163, 166 ; The Ouachita Cotton, 6 Wall 
 521, 531 ; Brown v. Tarkinton, 3 Wall. 377, 381 ; Keunett v. 
 
IN AGENCY. 15 
 
 Chambers, 14 How. 38, 50. Then, the order alone warned all 
 who looked upon it, who knew the domicile of the parties to it, 
 ^ that it could not be evidence of a legal title. And it was not, 
 unconnected with other proof, a power to sell or dispose of the 
 cotton. 
 
 Yet, though the order of itself was not evidence of a sale 
 to Singleton, or a power to sell, it shows that the owners of the 
 cotton had authorized him to take possession of it. This he 
 could do as the agent of the owners. This was not forbidden 
 to him or to them by law or the policy of the government. 
 They could change the agency of the custody of their cotton 
 from one person to another. And they could make any' per- 
 son, capable of acting as an agent, such agent to take posses- 
 sion of their property for them, and keep it for them. They 
 could transfer its custody from Browder to Singleton without 
 a violation of law. The objection which might be supposed 
 to exist to such an agency during the war, ceased as soon as the 
 war was ended ; and its purpose being then legal, it might be 
 legally consummated. Any one, except a lunatic, imbecile, 
 or child of tender years may be an agent for another. It is 
 said by an eminent author and jurist, that " it is by no means 
 necessary for a person to be sui juris, or capable of acting in 
 his or her own right in order to qualify himself or herself to 
 act for others. Thus, -for example, monks, infants, femes covert, 
 persons attainted, outlawed or excommunicated, villains and 
 aliens, may he agents for others :" Story's Agency, §§ 6, 7, 9. 
 So, a slave, who is homo non civilis, a person who is but little 
 above a mere brute in legal rights, may act as the agent of his 
 owner or his hirer : Powell v. The State, 27 Ala. 61 ; Stanley 
 V. Nelson, 28 Ala. 514. It was then, certainly not unlawful, 
 or against the public policy of the nation, for Kent, Payne & 
 Co. to keep their cotton, and keep it safely, during the late re- 
 bellion. It is the undoubted law of agency, that a person may 
 do through another what he could do himself in reference to 
 his own business and his own property; because the agent 
 is but the principal acting in another name. The thing- 
 done by the agent is, in law, done by the principal. This is 
 
16 ILLUSTRATIVE CASES 
 
 axiomatic and fundamental. It needs no authorities to sup- 
 port it. Qui facit per.alium, facit per se : Broom's Max., marg. ; 
 1 Pars. Con., 5th ed. p. 39, et seq. ; Story's Agency, § 440. And 
 to this it may be added, that an agent dealing with the prop- 
 erty of his principal, must confine his acts to the limit of his 
 powers ; otherwise, the principal will not be bound : 1 Pars. 
 Cont. 41, 42, 5th ed. ; Powell v. Henry, 27 Ala. 612 ; Botts v. 
 McCoy d al, 20 Ala. 578 ; Allen v. Ogden, 1 W. C. C. 174. 
 And it is also the duty of one dealing with an agent to know 
 what his powers are and the extent of his authority : Van 
 Eppes V. Smith, 21 Ala. 317; Owings v. Hull, 9 Pet. 608. 
 Then, the agency to receive the delivery of the cotton from 
 Browder, in compliance with the order, was not illegal. If it 
 went beyond that it was void. And those who dealt with 
 Singleton were bound to know this as they were bound to 
 know the law. 
 
 The judgment of the Court below is affirmed. 
 
 Wharton, 13-18; Story, 7; Bishop Con. 1034-1036; Meohem, 57. 
 
 2 
 
 Exception. — Incompatible Duties. 
 
 An agent cannot assume incompatible duties nor have any interests 
 adverse to those created by the agency. 
 
 Taussig v. Hart. 
 
 New York Court of Appeals, 1874. 
 
 58 N. Y. 425. 
 
 Appeal from judgment of the General Term of the Supe- 
 rior Court of the city of New York, affirming a judgment in 
 favor of defendant, entered upon the report of a referee. 
 
 This action was brought to recover a balance alleged to be 
 due plaintiffs by defendant, on account of various stock specu- 
 lations. Plaintiffs were copartners, doing business in the city 
 of New York as stock and gold brokers. 
 
IN AGENCY. 17 
 
 On or about the 25th day of October, 1866, the parties 
 entered into a contract whereby the plalintiffs agreed to pur- 
 chase and sell as brokers, for the defendant such stocks and 
 gold as he should direct, upon the conditions, that the defend- 
 ant should deposit with the plaintiffs as marginal security at 
 least ten per cent, of the amount invested in such stocks and 
 gold, and that the plaintiffs should advance the necessary 
 funds in addition to any funds in their hands belonging to the 
 defendant, to pay for such stocks and gold so purchased, and 
 that they should apply all funds received by them for stocks 
 ' and gold sold for defendant, and all funds received by them 
 as dividends upon defendant's stocks in their hands, and all 
 funds deposited by defendant with them as marginal security, 
 upon such moneys so advanced by them, or so much thereof 
 as should be necessary to repay them for all such advances 
 and for their commissions for buying and selling and interest 
 upon all balances in their favor from time to time upon 
 advances so made, at the rate of seven per cent, per annum ; 
 and that the plaintiffs should be entitled to commissions for 
 buying and selling such stocks and gold at the rate of one- 
 eighth of one per cent, each way, upon the par value of such 
 stocks and gold. All stocks and gold purchased or sold to be 
 purchased or sold regular, that is to be delivered the next 
 business day after the purchase or sale thereof. 
 
 Under this contract large amounts of stocks and gold were 
 bought and sold. The only items in dispute were two, in 
 reference to which the referee found, in substance, as follows : 
 The plaintiffs on the 3d day of January, 1868, purchased on 
 account of defendant one hundred shares Pacific Mail at 113, 
 receiving a certificate thereof. On the same day they sold on 
 their own account one hundred shares of the same stock at 
 113|-, and without the consent of defendant delivered to the 
 purchaser the said certificate. On the 17th of March, 1868, 
 plaintiffs sold all of the Pacific Mail stock belonging to them- 
 selves, and had no stock to deliver to defendant. On the day 
 last mentioned Pacific Mail was worth 109|. 
 
 On or about February 29, 1868, defendant directed plaintiffs 
 2 
 
18 ILLUSTRATIVE CASES 
 
 to purchase one hundred shares Pacific Mail "regular." 
 Plaintiffs on that day purchased one hundred shares at thirty- 
 days " seller's option," at 111|. On the same day they trans- 
 ferred on their books to defendant, without his knowledge, 
 one hundred shares belonging to themselves, for which, on the 
 next business day, March 2, 1868, they charged him lllf per 
 share, with a commission for the purchase amounting in all to 
 111,150. 
 
 As matters of law the referee found : That the plaintiffs did 
 not purchase the one hundred shares of Pacific Mail stock, as 
 directed on the 29th day of February, 1868, for which they 
 charged him on the 2d day of March, 1868. That the trans- 
 action in relation to said stock did not bind defendant, and 
 that he is not liable for said stock. 
 
 That the plaintiffs, on the 17th day of March, 1868, wrong- 
 fully converted to their own use the one hundred shares of the 
 capital stock of the Pacific Mail Steamship Company, the 
 property of the defendant, bought for him on the 3d day of 
 January, 1868, and that the defendant was entitled to offset in 
 this action, as of that day the value of said stock on that day, 
 $10,962.50. 
 
 Rapallo, J. The defendant had a right to repudiate the 
 alleged purchase of one hundred shares of Pacific Mail stock 
 of which he was notified February 29, 1868, as soon as the 
 facts came to his knowledge. No such purchase as that stated 
 in the notice had been made. The purchase from Mr. Williams 
 was not at lllf regular, as stated in the notice, but was in 
 fact at 111^, seller's option, thirty days. That was not a com- 
 pliance with the defendant's order, which was to buy the stock 
 " regular " and the defendant was not bound to recognize the 
 purchase from Mr. Williams. But the plaintiffs allege that 
 they transferred to the defendant's credit one hundred shares 
 of their own stock at lllf, on the day when the stock would 
 have been deliverable had it been bought "regular." That 
 transaction did not help the matter. It amounted to a sale by 
 the plaintiffs of one hundred shares of their own stock to the 
 
IN AGENCY. 19 
 
 defendant, which was not binding upon the defendant, for the 
 reason that the law does not permit an agent employed to 
 purchase, to buy of himself. It is no answer that the intention 
 was honest and that the brokers did better for their principal 
 by selling him their own stock than they could have done by 
 goihg into the open market. The rule is inflexible, and 
 although its violation in the particular case caused no damage 
 to the principal, he cannot be compelled to adopt the purchase. 
 Consequently, whether the purchase of one hundred shares 
 from Williams was for defendant's account, or the plaintiffs 
 sold to the defendant one hundred shares of their own stock, 
 on either theory the referee was justified in rejecting that item 
 •of the account. 
 
 The credit to the defendant of the value of one hundred 
 isha,res of Pacific Mail stock as of the 17th of March, 1868, 
 was, in our opinion, properly allowed by the referee. Whether 
 the relation of pledgor and pledgee exists between a broker 
 and his customers, or whether the broker holds the stock under 
 a special contract, makes no difference in the result. The 
 broker is in either case bound to keep at all times on hand or 
 under his control, either the particular shares purchased for 
 his customer, or an equal amount of other shares of the same 
 kind, and to have them in such a situation that the customer, 
 on paving the amount due by him thereon, can at any time 
 obtain them. In the present case the plaintiffs, on the 3d of 
 January, 1868, purchased on defendant's order one hundred 
 shares of Pacific Mail stock at 113^, and charged him therefor 
 ■$11,312.50, and received from the seller a certificate for such 
 one hundred shares. On the same day they sold one hundred 
 shares of such stock, and on such sale delivered the identical 
 certificate they had received on the purchase which they had 
 made for defendant's account. If they had had no other shares 
 on hand at the time it would be quite clear that they had sold 
 the defendant's shares, and that on learning of such sale the 
 defendant could have adopted and claimed the benefit of it, 
 or, as many cases hold, claimed the value of the shares as upon 
 a conversion thereof by the plaintiffs to their own use. But 
 
20 ILLUSTKATIVE CASES 
 
 the plaintiffs did at the time hold other shares of their own, 
 which they could have delivered to the defendant. They, how- 
 ever, between that time and the 17th of March, 1868, sold and 
 delivered all of these shares, and thereafter held none of the 
 same kind of their own or which they could have delivered tO' 
 the defendant, and went short of the stock. The most that 
 they can claim is that so long as they had any one hundred 
 shares of Pacific Mail stock on hand, they had not sold the 
 defendant's shares ; but when they sold their last one hundred 
 shares and failed to keep any on hand to meet their obligation: 
 to the defendant, such sale must, according to the doctrine of 
 all the cases, be deemed to have been a sale of the defendant's 
 shares. He could ratify and claim the benefit of the sale, or 
 claim the value of the shares on the day of sale. The referee 
 has charged the plaintiffs with the value of one hundred 
 shares at 109f, which was the market value on the 17 th of 
 March, 1868. 
 
 The subsequent acquisition by the plaintiffs, after the stock 
 had fallen to a very low figure, of a sufficient number of shares 
 to replace those which they had held for account of the de- 
 fendant, did not relieve them from liability. Such re-acquired 
 stock was never accepted by the defendant, and he was in fact 
 ignorant of the transactions. To allow a broker to sell his 
 customer's stock without authority, and speculate upon replac- 
 ing it at a lower price would be encouraging speculations by 
 agents at the risk of their principals, totally inadmissible 
 under familiar rules. Should the stock rise largely in price 
 after the broker had thus divested himself of all control over 
 the shares which he had purchased on the order of his prin- 
 cipal, the broker might be unable to replace the shares, and 
 the principal would have no remedy except a personal claim 
 against the broker. This clearly is not what is contemplated 
 under an agreement to buy and carry stocks. The customer 
 does not rely upon an engagement of the broker to procure 
 and furnish the shares when required, but upon his actually 
 purchasing and holding the number of shares ordered, subject 
 only to the payment of the purchase-price. 
 
IN AGENCY. 21 
 
 These are the principal points raised and argued on this ap- 
 peal. None of the others are, in view of the findings of fact 
 of the referee, sufficient, in our opinion, to justify a reversal 
 of the judgment. 
 
 Judgment affirmed. 
 
 Mechem, 66, 68 ; Walker v. Palmer, 24 Ala. 358 ; Bunker v. Miles, 30 Me. 
 431 ; Bentley v. Columbia Insurance Co., 19 Barb. 595 ; Crump v, IngersoU, 
 44 Minn. 84. 
 
 A person cannot act as the agent of .two principals having opposing inter- 
 ests unless he does so with their full knowledge and consent : Meyer v. Han- 
 chett, 39 Wis. 419; Rice v. Wood, 113 Mass. 133; Scribner ti. Collar, 40 Mich. 
 575., 
 
 D 
 
 JOINT PRINCIPALS AND AGENTS. 
 
 1 
 Genebal Rule as to Joint Principals. 
 
 The general rule is that a tenant in common or joint tenant has no 
 implied authority to act as agent for the other co-owners. 
 
 Sewell v. Holland. 
 
 Supreme Court of Georgia, 1878. 
 
 61 Ga. 608. 
 
 Bleckley, J. 1. There is no dispute that "Willis and 
 Young owned the land as tenants in common ; that Willis 
 bargained it in writing to Sewell, who paid at least a part of 
 the purchase^money, and went into possession, claiming the 
 -whole of it under this purchase ; that Willis did not attempt 
 to sell his interest only, but attempted to sell to SeweU the 
 interest of Young also, holding himself out as authorized by 
 Young so to do; and that Young's interest was afterward 
 formally cqnveyed to Holland. It is insisted that if Sewell 
 had actual possession and claimed the whole land, especially 
 if he had paid all the purchase-money. Young was ousted, 
 whether he had ever ■ authorized the sale of his interest or 
 
22 ILLUSTRATIVE CASES 
 
 not, or whether he ever ratified the sale or not; and 
 that, though Sewell may not in fact have acquired Young's 
 interest, yet, as he claimed to have acquired it, he did not be- 
 come a tenant in common with him, and therefore the remedy 
 by partition cannot be available to Holland, Young's vendee. 
 But we think that, though Sewell may have believed that he 
 owned the whole land, still, if he in fact owned no more than 
 the interest of "Willis, he would occupy to Young the relation 
 which Willis previously occupied ; that is, the two would be 
 tenants in common. Of course, Young's subsequent vendee 
 would take Young's place in that relation ; and so, if Young 
 neither authorized nor ratified the sale by Willis to Sewell,, 
 Holland and Sewell became tenants in common. See 26 Ga, 
 515 ; 52 lb. 637 ; 66 lb. 659. 
 
 2. If Young either authorized or ratified the sale by Willis,, 
 he could not afterward and whilst Sewell was in possession^ 
 claiming the whole land, convey a better title to Holland or 
 to Holland's attorney than he himself then had. Sewell'a 
 possession would so protect him that Young could convey 
 no title to another which he himself could not assert against 
 Sewell, possession being notice to all the world, if not of what 
 the possessor actually claims, at least of what he is entitled 
 to claim 'rightfully. Holland can stand in Young's shoes, but 
 not in a new and better pair. This is so, whether Sewell has 
 paid all the purchase-money or not. Holland can have par- 
 tition, if Young could have it were the conveyances under 
 which Holland now claims through Young out of the ques- 
 tion ; otherwise, he cannot have it. Sewell's possession pre- 
 vented Young from placing Holland any higher than the- 
 exact position in which Young stood. 
 
 3. It matters not that Holland may have acquired title in 
 whole or in part by compounding a felony. Sewell is not in- 
 terested in that question. No such consideration appears on 
 the face of either of the deeds. The deeds are executed con- 
 tracts, and Young, the maker, is not complaining of them. 
 Sewell has no right to volunteer a complaint for him. In- 
 deed, it is not apparent how even Young could avoid them 
 
IN AGENCY. 23 
 
 were he so disposed. It is enough for all Sewell's rights, legal 
 or equitable, that he is allowed to stand in this contest just as 
 if he were resisting Young. 
 
 What we have ruled will be found to comprehend the 
 whole substance of the case, except the matters of fact which 
 are for the jury. 
 
 Judgment reversed. 
 
 Mechem, 71 ; Reiman v. Hamilton, 111 Mass. 245 ; Story, 39 ; Harris v. 
 Johnston, 54 Minn. 177. 
 
 A power of attorney from two to sell their land is not a power to sell the 
 several land of either : Hersey v. Lambert, 50 Minn. 373. 
 
 2 
 Exception. — Partnership. 
 
 In the case of a partnership the rule is different. Here the act of 
 any member within the scope of the partnership business binds the 
 firm. 
 
 Deakin .v. Underwood. 
 
 Supreme Court of Minnesota, 1887. 
 
 37 Minn. 98. 
 
 Mitchell, J. This was an action to compel specific per- 
 formance of a contract for the sale of real estate. Plaintiff 
 alleges that the defendant made the contract " by A. B. Wilgus, 
 his duly authorized agent and attorney-in-fact." The contract 
 is , attached as an exhibit to the complaint, and is signed : 
 " 0. W. Underwood , By A. B. Wilgus, Agent." 
 
 It appears from the evidence that the authority to sell was 
 given to the firm of A. B. Wilgus & Bro., a partnership com- 
 posed of A. B. Wilgus and E. P. Wilgus. It is claimed that, 
 upon this state of facts, there was a failure of proof. But the 
 material allegation of the complaint was that defendant had 
 made his contract with plaintiff. It was not necessary to 
 allege that it was made through an agent. It would have 
 been enough to declare upon it generally as of the personal act 
 of the principal. The substance of the issue was not whether 
 
24 ILLUSTRATIVE CASES 
 
 defendant had made the contract through an agent, but 
 whether he had made it at all. Hence it cannot be said that 
 there was a failure of proof. The most that can be possibly- 
 claimed is that there was a variance between the allegation 
 and proof, but which could not, in this case, have misled the 
 defendant to his prejudice, and therefore is not material. 
 
 2. Defendant further contends that the authority to sell 
 being to the firm of A. B. Wilgus & Bro., which was composed 
 of two members, this authority could only be executed by the 
 two jointly, and not by one separately, so as to bind the prin- 
 cipal. In support of this contention, he invokes the well- 
 known general rule of the common law that, where an 
 authority to do an act is conferred upon two or more agents, 
 the act is valid to bind the principal only when all of them 
 concur in doing it ; the power being joint and not several : 
 Kollins v. Phelps, 5 Minn. 373 (463). Even where the 
 authority is given to several agents, this rule is not so rigid 
 and inflexible as to overcome the apparent intention of the 
 parties to the contrary : Story, Ag., §§ 42, 43 ; Hawley v. 
 Keeler, 53 N. Y. 114. But we think the rule has no applica- 
 tion where the authority is given to a partnership as such. 
 Each member of a partnership is the agent of the firm, and all 
 the partners are jointly accountable for the acts of each other ; 
 and, where a person appoints a partnership as his agent, 
 he must be deemed to have done so with reference to these 
 rules of law. When a person delegates authority to a firm, it 
 is an appointment of the partnership as his agent, and not of 
 the individual members as his several and separate agents. 
 Hence each partner may execute, and the act of one is the act 
 of the firm, and in strict pursuance of the power : Gordon v. 
 Buchanan, 5 Yerg. 71. 
 
 But it is claimed that, conceding this, he must do it in the 
 name of the firm, and that if, as in the present case, he uses his 
 individual name, it is not the act of the partnership, and will 
 not bind it. The defendant seems to overlook the fact that the 
 contract is the act of the principal and not of the agent, and 
 that the party to be bound is the former and not the latter. 
 
IN AGENCY. 25 
 
 Hence the important question is whether the principal's name 
 has been signed to the contract by one having authority to do 
 so. That in this case, A. B. Wilgiis, as a member of the firm 
 of A. B. Wilgus & Bro., had, by virtue of the authority given 
 the firm, power to execute this contract in the name of 
 defendant, cannot be questioned, and it is wholly immaterial 
 whether to that name he added " by A. B. Wilgus & Bro.," or 
 " by A. B. Wilgus," or nothing at all. An agent authorized to 
 sign the name of his principal effectually binds him by simply 
 fixing to the instrument the name of his principal, as if it were 
 his personal act. The particular form of the execution is not 
 material, if it be done in the name of the principal, and by one 
 having authority in fact to execute the instrument : Berkey v. 
 Judd, 22 Minn. 287, 302 ; First National Bank v. Loyhed, 28 
 Minn. 396 (10 N. W. Rep. 421); Devinney v. Reynolds, 
 1 Watts & S. 328 ; Forsyth v. Day, 41 Me. 382. 
 
 3. The authority to the firm was to sell for one-half cash ; 
 and the other half payable on or before one year. They sold for 
 one-half cash, and the other half payable in one year. It 
 is claimed that this was unauthorized, and therefore the prin- 
 cipal not bound. The terms of the contract, as executed, so far 
 as they affect the rights of defendant, were in legal effect the 
 same as those authorized. By each he would be entitled 
 to demand payment in one year, and not before. The distinc- 
 tion between this case and one where the facts are exactly 
 reversed (such as Jackson v. Badger, 35 Minn. 52 ; 26 N. W. 
 Rep. 908), will be apparent on a moment's reflection. 
 
 4. The contract contained a provision that if the title to the 
 premises " is not good, and' cannot be made good, this agreement 
 shall be void," and the earnest-money refunded. Upon ex- 
 amination of the title, it was discovered that the land had 
 been bid in by the State, at the tax sale of 1883, for the taxes 
 of 1882, for the sum of $15, and the certificate of sale subse- 
 quently assigned (when does not appear) to one Billson. 
 After waiting some time to have the defect in the title 
 removed, and it not being done, plaintiff" off'ered to take 
 defendant's warranty deed (as provided in the contract), with 
 
26 ILLUSTRATIVE CASES 
 
 the title as it was. Defendant declined to do this, claiming 
 that, under the provision of the contract referred to, he had a 
 right, if the title could not be made good, to declare the contract 
 at an end. We need not determine whether or not this posi- 
 tion is sound. Assuming that defendant's construction of the 
 contract is correct, it is at least incumbent upon him to prove 
 affirmatively that .the title cannot be made good. This he has not 
 done. He has neither proved that the notice of the expiration 
 of redemption required by law had been given, or that the 
 assignment to Billson was made after forfeiture to the State, so 
 as to bring the case within State v. Smith, 36 Minn. 456 (32 
 N. W. Rep. 174). Therefore, for anything that appears, the 
 right of redemption from this tax sale still continues, and the 
 title to the land could be made good by paying $15, and 
 interest. We therefore think that the evidence shows a bind- 
 ing contract by defendant to sell and convey, and shows no 
 valid reason why he ought not to and cannot perform. 
 Order reversed. 
 
 Mechem, 70; Story, 39; Peine v. Weber, 47 111. 41; Banner Co. v. Jenison, 
 48 Mich. 459 ; Selden v. Bank of Commerce, 3 Minn. 166. 
 
 3 
 
 Joint Agents, Private. 
 
 In a private agency ■when the authority is conferred on t^70 or 
 more they must jointly execute it. 
 
 Rollins v. Phelps. 
 Supreme Court of Minnesota, 1861. 
 
 5 Minn. 463. 
 
 Flandrau, J. The paper-books furnished ,us in this case 
 contain simply a copy of the contract on which the suit was 
 founded. The pleadings are omitted as well as all the pro- 
 ceedings on the trial. It seems that the plaintiffs obtained a 
 verdict against the defendants, the Court holding them person- 
 ally liable upon the contract, and it is this ruling that they 
 
IN AGENCY. 27 
 
 c to review, upon the ground that they acted as agents, 
 I their principals alone incurred liability. We are neces- 
 ly confined in our examination to this one question, and 
 ;hat to the face of the contract alone. 
 
 ?he portion of the contract that is supposed to disclose the 
 resentative capacity in which the defendants acted is this : 
 Dutract between Calvin Potter, party of the first part, and 
 n Rollins, J. G. Rowe, Jonathan Chase, and Gilbert Han- 
 , as agents, authorized by the log-owners, parties of the 
 )nd part." The substance of the contract is, that the first 
 ty agrees to raft certain logs in Vermillion Slough, and 
 second party agrees to pay him for it, and furnish him 
 ley and supplies while at work, etc. It also appears from 
 contract that the logs were marked with the several marks 
 ihe owners. The defendants sign the contract with their 
 per names, with the addition of " agent " to each name, 
 i contract is not signed by Gilbert Hanson, and nothing 
 ears to explain why his name is omitted, 
 'he contract upon its face is that of the defendants, and 
 the log-owners. First, because it is not disclosed who the 
 owners are ; and, second, it appears that the log-owners 
 constituted four persons their agents to make the con- 
 t, and only three of them had joined in it. 
 In order to confine the credit to the principal, it is in general 
 3ssary that he should be known as the responsible person :" 
 ilap's Paley's Agency, 370 ; 12 Ves. 352 ; 2 Kent's Com. 
 . There is nothing in this contract that would lead the 
 d to suppose that the party of the first part gave the credit 
 he log-owners, parties unknown to him, and who, if he 
 lid seek them out, might have been so numerous and so 
 3ly separated as to render the enforcement of his claims 
 nst them impracticable, while the whole tenor of the 
 rument indicates that the employment was a personal one, 
 so understood between the parties. Although the parties 
 he second part describe themselves as the agents of the 
 )wners, they make all the promises contained in their 
 of the contract in their own behalf, and not in the names 
 
28 ILLUSTRATIVE CASES 
 
 of their principals, and sign the same with their own names. 
 We think the authorities are clear that in contra,cts of this 
 character the addition of the word " agents " to their names, 
 is a mere descriptio personarum, and the obligation is a per- 
 sonal one : Taft v. Brewster, 9 John. Rep. 334 ; White v. Skin- 
 ner, 13 lb. 307 ; Stone v. Wood, 7 Cowen, 453 ; Barker v. Me- 
 chanics' Ins. Co., 3 Wend. 94. 
 
 The case of Sanborn v. Neal et al, 4 Min. Rep. 126, in- 
 volved the consideration of questions somewhat analogus to 
 the one here presented ; but in that case the instrument did 
 ■disclose the name of the principal, and also, that the parties 
 signing were public agents, and it was upon these features of 
 the case that the signers were exonerated from personal lia- 
 bility. 
 
 It is a general rule that where a private agent so executes 
 Lis authority as not to bind his principal, he will be himself 
 liable for his acts : Dunlap's Paley's Agency, 386 ; Dugen- 
 bury V. Ellis, 3 John. Cas. 70 ; Stone v. Wood, 7 Cowen, 453; 
 Palmer v. Stephens, 1 Denio, 371-480. 
 
 An authority conferred upon several agents must be exe- 
 cuted by them all, and any act done by a less number will be 
 void as against the principal. 
 
 " An authority given to two cannot be executed by one, 
 though one die or refuse. If an authority be to A, B and C, to 
 sell after the death of D, and one die before D, the others 
 cannot sell. An authority to three jointly and separately is 
 not well executed by two :" Dunlap's Paley's Agency, 177, 
 and notes. 
 
 This rule is of general application to all matters of private 
 concern, but does not extend to public affairs. In the case of 
 public agents a majority may usually act : Green v. Miller, 
 € John. Rep. 69. 
 
 As we have seen, the contract shows that the authority was 
 conferred upon four and was executed by but three. Had it 
 been properly executed in the names of the principals, it 
 would have failed to bind them under such an execution ; and 
 when such fact is- apparent, the party contracting with the 
 
IN AGENCY. 23' 
 
 agents may resort to their personal liability in the first in- 
 stance. 
 
 The defendants' counsel attempts to do away with the force 
 of the objection that the principals were not disclosed, by the 
 facts that the logs being marked, the plaintiff could resort to- 
 the books of the surveyor general, and there ascertain ta 
 whom the marks belonged. The law in force at the time of, 
 this contract on the subject of marks, was § 16, of chap, xvi, 
 of the Laws of 1854. This section only makes it the duty of 
 the surveyor general to keep a book for the record of marks, 
 and to record such as are filed with him. These marks may 
 or may not have been recorded, from anything that appears ; 
 but we are not willing to allow the force claimed for these 
 marks, even had it appeared that they were duly recorded- 
 A party is not obliged to follow up every channel of informa- 
 tion to discover a principal, when contracting with parties 
 who are willing to place themselves in the position of prin- 
 cipals, as these defendants have done by their contract. 
 
 The order denying a new trial is affirmed. 
 
 Smith V. Glover, 50 Minn. 58 ; Cedar Rapids R. R. Co. v. Stewart, 25 la. 115; 
 Hawloy v. Keeler, 53 N. Y. 114 ; Mechem, 77 ; Story, 42 ; Brennan v. Willson, 
 71 N. Y. 502. 
 
 4 
 Joint Agents, Public. 
 
 In a public agency the act of a majority is sufficient to execute the 
 authority. 
 
 Mabtin v. Lemon. 
 
 Supreme Court of Errors of Connecticut, 1857. 
 
 26' Conn. 192. 
 
 Stores, C. J. The third section of the Act to prevent and 
 remove nuisances from highways, etc. (Rev. Stat. tit. xxxviii, 
 § 3), provides, that " if any person, etc., shall take any part 
 of a highway into his field or inclosure, or erect any fence 
 
30 ILLUSTRATIVE CASES 
 
 thereon in such manner that such highway is made narrower 
 than before, the selectmen of the town in which the offense is 
 committed, or a committee appointed by the town for that 
 purpose, shall give notice to the person so offending to remove 
 such fence or encroachment within a reasonable time not ex- 
 ceeding one month after such notice ; and if such person shall 
 neglect to remove it, then the selectmen or committee shall 
 remove it, and may recover the expense of the removal from 
 the person making such fence or encroachment." The plain- 
 tiff being one of a committee oi three persons duly appointed 
 under this section and acting without the concurrence or ad- 
 vice of any of the other members of the committee, after a 
 notice by him to the defendant to remove an encroachment 
 made by the latter on the highway, and his neglect to do so, 
 removed it, and now claims of the defendant the expense of 
 such removal. 
 
 His right to recover depends on the question whether he 
 legally possessed the power which he thus exercised; and 
 hence the inquiry is presented, whether, by the true construc- 
 tion of that section, the power of removing encroachments is 
 given to each of the members of such committee consisting 
 of several persons, acting separately, and without the concur- 
 rence of the other members or any of them. We are clearly 
 of the opinion that that statute does not empower each of the 
 members of the committee appointed under it so to act. There 
 is no general legal principle that where, as in this case, an au- 
 thority to do an act of a public nature is given by law to more 
 persons than one, each of them independently of the others, 
 and without the concurrence of them, or of some of them, may 
 exercise that authority. On the contrary, the rule on this sub- 
 ject is, that in such a case, if the act is merely ministerial in 
 its character, a majority at least must concur and unite in the 
 performance of it ; but they may act separately, and need not 
 be convened in a body or notified so to convene for that pur- 
 pose ; but if the act is one which requires the exercise of dis- 
 cretion and judgment, in which case it is usually termed a ju- 
 dicial act, unless special provision is otherwise made, the per- 
 
IN AGENCY. 31 
 
 sons to whom the authority is given must meet and confer 
 together and be present when the act is performed, in which 
 case a majority of them may perform the act ; or, after all of 
 them have been notified to meet, a majority of them having, 
 met will constitute a quorum or sufficient number to perform 
 the act, and according to some modern authorities, the act may 
 be legally done by the direction or with the concurrence of a 
 majority of the quorum so assembled: Damon v. Granby, 2 
 Pick. 345, 354. 
 
 These appear to be the principles of the common law on 
 this subject : Grindley v. Barker, 1 Bos. & Pul. 229 ; Keeler v. 
 Frost, 22 Barb. S. C. 400 ; Perry v. Tynen, lb. 137. 
 
 The Courts in this State, however, have gone further, and 
 held in a particular class of cases where the act requires the 
 exercise of judgment and discretion, that a majority of the 
 persons on whom the authority is conferred may perform it, 
 and that they may act separately for that purpose, and need 
 not act in a board or collective body: Gallup v. Tracy, 25 
 Conn. 10. There is no occasion in the present case for pursu- 
 ing this particular subject further. There is nothing in the 
 act now in question which takes it out of the operation of 
 these principles, or provides that the authority conferred by it 
 may be exercised by one only of the members of the committee 
 mentioned in it. Its terms contain no express delegation to 
 the individual members of the committee of the power given 
 to the committee, nor do those terms imply that they may 
 separately exercise that power. On the other hand, they im- 
 port that one of them cannot so act where the committee con- 
 ■ sists of more than one person. They prescribe that the acts 
 therein authorized shall be done by a " committee," and there 
 is nothing to indicate that they may be done by a particular 
 portion of the persons composing it. This term, when it is 
 applicable, as it is in the present case, to more persons than 
 one, is a collective word, or, as grammarians would say, a noun 
 of multitude, and indicates a plurality of persons. The ex- 
 pression which is thus used in the Act is therefore not appro- 
 priate to express the idea that the power conferred on a com- 
 
32 ILLUSTRATIVE CASES 
 
 mittee may be exercised by each individual member of it 
 separately. And, accordingly, as a reference to our statutes 
 will abundantly show, wherever an authority is conferred by 
 a statute on several persons, by whatever term they are desig- 
 nated, and it is intended that a particular portion of them 
 may exercise that power, it is usual to insert some phrase 
 which expresses such intention. We also infer from the mag- 
 nitude of the power which is given by the Act in question to 
 the committee of encroachments, and the serious consequences 
 which might ensue to the persons on whom it is brought to 
 bear, that it was the intention of the Legislature that it should 
 not be exercised by one only of the members of the commit- 
 tee on his sole judgment and opinion, but that it was de- 
 signed that its exercise should be the result of deliberation 
 and consultation between, them. 
 
 We therefore advise the Superior Court to render judgment 
 for the defendant. 
 
 Woolsey v. Tompkins, 23 Wend. 324; First National Bank v. Mt. Tabor, 52 
 Vt. 87; McNeil v. Chamber of Commerce, 154 Mass. 277 ; Soens v. Eacine, 10 
 Wis. 271 ; Walker v. Rogan, 1 Wis. 597 ; Mechem, 78. 
 
 E 
 CLASSES OF AGENTS. 
 
 1 
 
 General. 
 
 A general agent is one authorized to act for his principal in all 
 matters connected with a specified transaction, business, or employ- 
 ment. 
 
 Loudon Society v. Hagerstown Bank. 
 
 Supreme Court of Pennsylvania, 1860. 
 
 36 Pa. St. 498. 
 
 Woodward, J. The Hagerstown Savings Bank brought 
 this action of assumpsit against William McGrath and his 
 numerous co-defendants, as partners trading and doing busi- 
 
IN AGENCY. 33 
 
 ness under the name and style of the Lohdon Savings Fund 
 Society.' The first count in the plaintiff's narr. is founded 
 upon a " certain writing obligatory, commonly called a certifi- 
 pate of deposit, for the sum of $5,000, signed by H. Easton, 
 treasurer of said Loudon Savings Fund Society (who had full 
 power conferred upon him to do such act), and then and there 
 delivered said certificate of deposit to said plaintiff, and thereby 
 promised to pay said plaintiff said sum of $5,000, six months 
 after the date thereof, with interest at six per cent." The 
 second count is upon a certificate for a deposit of like sum, 
 made by H. Easton, and by him indorsed, but delivered by 
 the defendants to the plaintiff. Then follow the common 
 money counts. 
 
 The copy of the certificate of deposit shows that it was 
 issued on the 1st January, 1857, by H. Easton, treasurer, to 
 himself for $5,000, payable to his order six months after date, 
 with interest at six per cent., and by him indorsed in blank. 
 
 Besides all the general pleas, the defendants pleaded spe- 
 cially : 1st. That the said writing obligatory was not their 
 act or deed. 2d. That Hezekiah Easton had no power or 
 authority, as treasurer of the Loudon Association or otherwise, 
 to sign or indorse the certificate, and that he issued it fraud- 
 ulently and corruptly, without the knowledge or authority of 
 the defendants, of all which the plaintiff had knowledge when 
 the certificate came into their possession. 3d. That Hezekiah 
 Easton was not treasurer of the Loudon Savings Fund Society 
 when the said writing was made. 4th. That the defendants 
 did not make said paper nor deliver the same to the plaintiff. 
 5th. That Easton did not deposit the $5,000 mentioned in said 
 certificate, but was largely indebted to said society. 6th. That 
 the plaintiff is not a bona fide holder of said certificate for 
 value. 7th. That the proceeds of said certificate did not go 
 into the business of the defendants, but were appropriated by 
 said Easton, and that the plaintiff knew such use of the funds 
 was intended. By means of these numerous pleas, and the 
 points submitted on the one side and the other, the case was 
 presented in every possible aspect. 
 3 
 
34 ILLUSTRATIVE CASES 
 
 On the trial of the -cause the learned Judge directed the 
 jury to return a verdict for the amount of the plaintiffs' 
 claim, and declined to submit any question of fact for their 
 decision. To the admission of evidence, and the refusal of 
 the Court to give instructions prayed for, sixteen errors are 
 assigned, which I do not propose to consider in consecutive 
 order, though all that is material in them shall be noticed. 
 
 It is apparent that the great question raised upon the record 
 had reference to the character and extent of Easton's authority, 
 as the agent of the defendants. The party who avails himself 
 of the act of an agent must, in order to charge the principal,' 
 prove the authority under which the act is done. If the 
 authority be created by power of attorney, or other writing, 
 the instrument itself must in general be produced ; and since 
 the construction of writings belongs to the Court, and not to the 
 jury, the fact and scope of the agency are, in such cases, ques- 
 tions of law, and are properly decided by the Judge. But the 
 authority may be by parol, or it may be implied from the con- 
 duct of the employer in sanctioning the credit given to a per- 
 son acting in his name. And in many cases, the acts of an 
 agent, though not in conformity to his authority, may yet be 
 binding upon his employer, who is left, in such cases, to seek 
 his remedy against his agent. Whether an employer be or be 
 not bound by such acts as are not conformable to the commis- 
 sion given by him, depends principally upon the authority 
 being general or^ special. By a general agent is understood 
 not merely a person substituted in the place of another, for 
 transacting all manner of business, but a person whom a man 
 puts in his place to transact all his business of a particular 
 kind, as to buy and sell certain kinds of wares, to negotiate 
 certain contracts and the like. An authority of this kind 
 empowers the agent to bind his employer by all acts within 
 the scope of his employment, and that power cannot be limited 
 by any private order or restriction, not known to the party 
 dealing with the agent. A special agent is one who is em- 
 ployed about one specific act, or certain specific acts only, and 
 he does not bind his employer unless his authority be strictly 
 
IN AGENCY. 35 
 
 pursued : Paley on Agency, 199, et seq. " A general authority," 
 said Lord Ellenborough, in Whitehead v. Tuckett, 15 East, 
 408, " does not import an unqualified one, but that which is 
 ■derived from a multitude of instances ; whereas a particular 
 .authority is confined to an individual instance." And in all 
 instances where the authority, whether general or special, is to 
 be implied from the conduct of the principal, or where the 
 medium of proof bf agency is per testes, the jury are to judge 
 of the credibility of witnesses, and of the implications to be 
 made from their testimony. 
 
 As the plaintiff here did not produce any written evidence 
 ■of Easton's agency, it was the duty of the Court to inform the 
 jury what constitutes agency, express or implied, special or 
 general, and to refer to them the questions (1st), whether the 
 evidence satisfied them that Easton was either the general 
 ■or special agent of the defendants? and (2d), whether the 
 issuing of the certificate in suit was within the scope of his 
 authority? 3 W. & S. 79 ; 11 Harris, 247; 6 Casey, 513; 
 7 lb. 461. 
 
 Or, if it was not a case of strict agency, if Easton acted 
 without any authority in issuing the certificate, or transcended 
 such as had been delegated to him, the question of ratification 
 by the defendants was also a mixed question of law and fact. 
 What would in law amount to ratification, was for the Court ; 
 whether such proofs were found in the case, was for the jury. 
 Such adoptive authority relates back to the time of the original 
 transaction and is deemed, in law, the same to all purposes, as 
 if it had been given before : Lawrence v. Taylor, 5 Hill, 107- 
 113 ; and see Livermore on Pr. and Agent, vol. I, pp. 44-50 ; 
 Railroad Co. v. Cowell, 4 Casey, 337. 
 
 The main argument of counsel in support of the Court's 
 entire withdrawal of the case from the jury rests on the law 
 of partnership. Easton was a partner in business with the 
 defendants, the acting partner to whom the conduct of the 
 business of the defendants had beeii almost wholly committed 
 for a long time ; and hence, it is correctly inferred that the 
 saving fund society so accredited him to the world, as to bind 
 
36 ILLUSTRATIVE CASES 
 
 his copartners, by his dealings with innocent parties mthin the 
 scope of the business of the partnership. 
 
 The authorities, as may be seen by consulting Gow, Story,, 
 Collyer or any other standard work on partnership, abundantly 
 sustain the proposition, that each partner is, in contemplation 
 of law, the general agent of the partnership. " When a part- 
 nership is formed for a particular purpose," said Chief Justice- 
 Marshall, in Winship v. The Bank of the United States, 5 
 Peters, 561, " it is understood to be, in itself, a grant of power 
 to the acting members of the company to transact its business, 
 in the usual way. If that business be to buy and sell, then 
 the individual buys and sells for the company, and every per- 
 son with whom he trades in the way of its business has a right 
 to consider him the company, whoever may compose it. The- 
 articles of copartnership are perhaps never published. They 
 are rarely if ever seen, except by the partners themselves.. 
 The stipulations they may contain are to regulate the conduct 
 and rights of the parties, as between themselves. The trading 
 world, with whom the company is in perpetual intercourse 
 cannot individually examine these articles, but must trust to- 
 the general powers contained in all partnerships. The acting 
 partners are identified with the company and have power to 
 conduct its usual business in the usual way." 
 
 These observations were made in a case where the several 
 defendants were engaged in the soap and candle business, and 
 they were all held liable on notes indorsed by Winship in the 
 firm name, notwithstanding the restrictions imposed on him 
 by the articles under which he was acting, and notwithstand- 
 ing the money, or some of it, was misapplied to his own pur- 
 poses. This case is a strong illustration of the commercial 
 principles which permeate the contract of partnership. In 
 strictness it is applicable only to commercial transactions. 
 
 The general principles stated by the Chief Justice in the 
 same case are applicable to all partnerships, whether commer- 
 cial or not in their pursuits. He said : " No man can be 
 pledged but by himself. If he is to be bound by another, that 
 other must derive authority from him. The power of an agent 
 
IN AOENCY. 87 
 
 is limited by the authority given him ; and if he transcends 
 that authority the act cannot affect his principal ; he acts no 
 longer as agent. The same principle applies to partners. 
 One binds the others so far only as he is the agent of the 
 others." 
 
 Now it is material to observe that, in the case in hand, the 
 learned Judge withdrew the facts from the jury, on the 
 assumption that Easton's act was within the scope of the 
 business of the partnership of which he was a member ; that 
 he was conducting " its usual business in the usual way." 
 And the argument of the learned counsel rests on the same 
 assumption. 
 
 On a review of the evidence the Court holds that the matter 
 of the scope of the partnership business should have been 
 submitted to the jury. 
 
 Judgment reversed and a vettire facias de novo awarded. 
 
 Hatch V. Taylor, 10 N. H. 538 ; Bryant v. Moore, 26 Me. 84 ; Butler v. Maples, 
 "9 Wall. 766; Mechem, 6 ; Story, 17, 18. 
 
 Special. 
 
 A special agent is one 'whose authority is limited to a particular 
 -transaction or series off transactions. 
 
 Ladd v. Franklin. 
 3up;Feme Court of Errors of Connecticut, 1870. 
 
 37 Conn. 53. 
 Phelps, J. To determine this case let us briefly recur to 
 the facts. The defendant, on the 2eth day of July, 1862, in 
 legal meeting, voted to 'pay $50 from its treasury to such resi- 
 dent volunteers as should thereaftier, before the 1st day of Sep- 
 iember following, enlist in the service of the United States, 
 and also to those who had previously enlisted since the 14th 
 day of ifche said July ; such bounty to be paid when such recruits 
 should be mustered into the United States service and accredited to 
 
38 ILLUSTRATIVE CASES 
 
 the town; and the selectmen were appointed a committee to 
 pay to the volunteer or his order such bounty when the fore- 
 going conditions were complied with, and were authorized to- 
 borrow money, if necessary, to pay the same. 
 
 At another meeting duly warned and legally held on the- 
 23d of August, 1862, it also voted to pay each resident volun- 
 teer from the town who should enlist for the term of nine 
 months before the first day of said September, $150 in addi- 
 tion to the $50 previously offered, and the selectmen were di- 
 rected to pay this bounty " on and after such volunteers were 
 mustered into the service of the United States ;" and they were- 
 required to use the utmost diligence in filling the quota then 
 assigned to the town. 
 
 Pursuant to the votes passed at the last^mentioned meeting- 
 Ezra B. Bailey, a resident of the town of Franklin, on or about 
 the 5th of September, 1862, volunteered for nine months, and 
 was examined, accepted, and sworn on the 25th of that month, 
 but in consequence of sickness was never mustered into theVhited- 
 States service and never accredited to or applied upon the quota of 
 the tovm. The regiment in which he volunteered was duly mus- 
 tered into service on the" 10th of the subsequent November. 
 The note in suit was dated on the 26th of September, and the= 
 consideration expressed on its face is for " nine months volun- 
 teer militia service." It is in form negotiable, but was made 
 so by one of the selectmen after the others had signed it, and 
 in their absence and without their knowledge or authority or 
 that of the town, but the fact of such alteration was subse- 
 quently communicated by the person by whom it was made to- 
 the other selectmen, who made no objection. On the same 
 day the selectmen paid Bailey $35 in money, which, together 
 with the note, made the entire sum voted by the town at tlieir 
 meeting on the '23d of August. Between February 1 a,nd 
 October 1, 1863, the plaintiff purchased the note from Bailey,, 
 and paid him therefor its full value. The plaintiff then had 
 knowledge of all the facts in relation to Bailey's service, ex- 
 cepting that he did not know he had not been duly mustered 
 into the United States service. He had heard that the seledt- 
 
IN AGENCY. , 39 
 
 men questioned the liability of the town to pay the note, but 
 had no actual knowledge that they declined payment until Le 
 saw a published notice to that effect dated October 12, 1863, 
 which cautioned all persons against purchasing the note, and 
 stated that payment of it had been stopped because the service 
 by Bailey, specified as the consideration for the note, had not 
 been performed. The Court found that neither Bailey nor the 
 plaintiff knew that the former had not been applied toward 
 the quota of the town, unless such knowledge is properly in- 
 ferable from the time and manner of Bailey's service ; and 
 that the plaintiff took the note in good faith excepting as the 
 contrary is indicated by the other acts found. It is conceded 
 that the plaintiff was a resident of the town of Franklin at 
 the time of the passage of the votes, and had knowledge of 
 them. 
 
 In view of the character of the votes, and of the facts found 
 and admitted, and the law as applicable to them, we are to say 
 whether the Superior Court properly found the issue in favor 
 of the plaintiff. 
 
 It is claimed in support of the motion for a new trial, that 
 the selectmen were the special agents of the town, and ex- 
 ceeded their authority in giving the note in suit. We think 
 a fair construction of the votes passed by the defendant justi- 
 fies this claim. They were appointed and authorized to exe- 
 cute the single and specific purpose of filling the then pending 
 quota of the town, and of paying the volunteers when they 
 should be mustered into the service of the United States. So 
 far as the authority to make payment was concerned it was 
 carefully and expressly limited as to the time when it might be 
 performed. 
 
 New trial should be granted. 
 
 LooMis, J. We prefer to rest the decision of this case upon 
 the ordinary principles of agency, without discussing other 
 questions suggested in the argument. 
 
 In order to recover, it must appear that the note in suit was 
 the note of the town of Franklin. To make it the note of the 
 
40 ILLUSTRATIVE CASES 
 
 town the selectilien who executed it must have had sufficient 
 authority from the town. In giving the note the selectmen 
 were not acting under any general powers conferred on them 
 as selectmen, nor under any power to borrow money, but as 
 special agents in this particular matter, pursuant to special in- 
 structions contained in the recorded votes of the town ; and by 
 those votes it appears that authority was given to pay the 
 bounty only when the soldier should be mustered into the 
 United States service and accredited to the town ; and as Bai- 
 ley never was so mustered into service or accredited to the 
 town, no payment of the bounty by promissory note, or other- 
 wise, could be lawfully made. The note, therefore, cannot be 
 the note of the town in the hands of Bailey, the immediate 
 party to the transaction. But is it to be regarded as the note 
 of the town in the hands of the plaintiff, who was a purchaser 
 for value before the note became due ? We think not. The 
 plaintiff had no right to presume that the note in suit was 
 given by the selectmen, either under their general powers as 
 selectmen (if their general powers were sufficient, which i^ 
 doubtful), or under the special power given by the vote of the 
 town to borrow money to pay the bounties, because it appears 
 upon the face of the note that it was upon consideration of 
 " nine months volunteer militia service," and it was clear that 
 the selectmen could have given the note only under some spe- 
 cial authority, and, as such special authority could be given 
 only by a recorded vote of the town, the plaintiff stands fully 
 notified of such vote and of its terms. Such knowledge on the 
 part of the plaintiff may not only be fairly inferred from the 
 facts found by the Court, but was distinctly admitted in the 
 brief of the plaintifiF's counsel. 
 
 The record also shows that the plaintiff knew that the 
 selectmen had questioned the liability of the town on the note. 
 If therefore the plaintiff, when he purchased the note, had 
 full knowledge of the limitation of authority in the selectmen, 
 contained in the votes of the town, and that the liability of the 
 town had been called in question, upon what principle can he 
 claim that the authority of the selectmen to bind the town 
 
IN, AGENCY. 41 
 
 should be extended in his favor beyond the terms of those 
 votes? In certain exceptional cases the liability of the prin- 
 cipal for the act of the agent may be extended in favor of in- 
 nocent third parties beyond the authority actually given, but 
 this applies only when the third party is ignorant that restric- 
 tions have been imposed on the agent, and when there is an 
 appearance of authority, for which the principal is responsi- 
 ble, which operates to mislead the party so dealing with the 
 agent ; but in the case now under consideration the votes of 
 the town show the exact authority given, and they are so ex- 
 plicit that there is no room for enlargement by appearances. 
 
 It was claimed in the argument for the plaintiff that the> act 
 of the selectmen in givitag the note was an admission binding 
 upon the town that the soldier, to whom the note was made 
 payable, had been mustered into service, and the case of Com- 
 missioners of Knox County v. Aspinwall, 21 Howard, 539, was 
 cited in support of this claim. A careful comparison of that 
 case with this we think will show that they are not analogous 
 in principle. The case cited was a suit against the Commis- 
 sioners of Knox County in the State of Indiana, to recover, in 
 favor of innocent holders, the amount due upon certain cou- 
 pons, originally attadhed to bonds issued by the board of com- 
 misMoners, payable to the Ohio & Mississippi Railroad Com- 
 pany, or bearer, at the North River Bank, New York. An Act 
 of the Legislature directed the board to subscribe to the stock 
 of the railroad company, and to issue bonds for the payment 
 of the subscriptions, in the event that at an election to be held 
 at a certain tirne in the county, pursuant to notice to be given 
 by the sheriff of the county, a majority of the votes should 
 be cast in favor of such subscription. 
 
 The defense was that the defendants, the board of commis- 
 sioners, possessed no authority to execute the bonds or coupons 
 in question, in consequence of an alleged omission, on the part 
 of the sheriff, in respect to the notices to be given of the elec- 
 tion at which a vote was to be taken for or against a subscrip- 
 tion to the stock of the railroad company and the issue of 
 bonds to pay for the same. 
 
42 ILLUSTRATIVE CASES 
 
 The chief inquiry was, whether the bonds and coupons in 
 question were executed and put in circulation by competent 
 and legal authority ; and this question depended upon another, 
 namely, who was to determine whether or not the election had 
 been properly held, and a majority of the votes of the county 
 cast in favor of the subscription ? 
 
 Palmer v. Cheney, 35 Iowa, 281 ; Story, 17-22; Mechem, 6; "Wharton, 119, 
 124. 
 
 F 
 APPOINTMENT. 
 
 Except in the case of an agency created by operation of la'w, one 
 can become the agent of another only by the will of the principal. 
 
 Graves v. Horton. 
 
 Supreme Court of Minnesota, 1887. 
 
 38 Minn. 66. 
 
 Mitchell, J. This action was brought to recover the value 
 of certain property, which plaintiff had exchanged with de- 
 fendant for a skating rink, skates, boats, etc., situated at Spirit 
 Lake, Iowa. Plaintiff's claim is that there was an entire fail- 
 ure of title to this property, because defendant had previously 
 sold it to one McCurdy. It is not claimed that defendant had 
 personally sold it to McCurdy, whatever was done in that re- 
 gard having been done by one F. M. Horton, assuming to act 
 as her agent. Hence, unless F. M. Horton had authority as 
 defendant's agent to sell to McCurdy, there could have been 
 no such sale, and plaintiff has no cause of action. The bur- 
 den was on plaintiff to prove such agency. 
 
 It is axiomatic in the law of agency that no one can become 
 the agent of another except by the will of the principal, either 
 expressed or implied from particular circumstances ; that an 
 agent cannot create in himself an authority to do a particular 
 act by its performance, and that the authority of an agent can- 
 not be proved by his own statement that he is such. Apply- 
 
IX AGENCY. 4S 
 
 ing these elementary principles, and stripping the evidence of 
 all that is immaterial or incompetent, and giving to what re- 
 mainS all the force that can be claimed for it, all there is that 
 was brought home to the defendant tending to prove any such 
 agency is that, when F. M. Horton was in Spirit Lake, he 
 transmitted and submitted to her in Minneapolis what pur- 
 ported to be a proposition from McCurdy to give for this prop- 
 erty $1,090 in goods, and assume a mortgage on it for $385, 
 and that she agreed to accept this proposition ; that, McCurdy 
 being unable to carry this out, F. M. Horton submitted to her 
 another proposition, as coming from McCurdy, viz., to give in 
 place of the goods eighty acres of land in Iowa ; that defend- 
 ant declined to accept this lafet proposition, and so notified 
 McCurdy ; that about two weeks after this she authorized 
 F. M. Horton to negotiate the sale of this property to plaintiff 
 on the terms which were finally agreed on, she herself making- 
 the transfer by executing the bill of sale described in the com- 
 plaint. We have, on the other hand, the flat denials of botk 
 defendant and F. M. Horton, that he ever had any authority 
 from her to sell this property or ever was her agent for this or 
 any other purpose. 
 
 This is really all the competent evidence there is at all bear- 
 ing upon this question of agency. The acceptance of Mc- 
 Curdy's first proposition, which he was unable to carry out, 
 certainly does not tend to prove authority to F. M. Horton to- 
 sell on the terms of the second, which defendant expressly de- 
 clined to accept ; and if any Sale ever was made to McCurdy 
 it was on the basis of this last proposition. Hence, the evi- 
 dence of agency is reduced down to the fact that defendant 
 authorized F. M. Horton to negotiate the sale to plaintiff", which 
 she herself consummated by the execution of a bill of sale. 
 It certainly cannot be that this is sufficient. It is true that 
 agency may be proved from the habit and course of dealing- 
 between the parties ; that is, if one has usually or frequently 
 employed another to do certain acts for him, or has usually- 
 ratified such acts when done by him, such person becomes his 
 implied agent to do such acts ; as, for example, the case of the 
 
44 ILT.USTKATIVE CASES 
 
 managisr of a plantation in buying supplies for it, or the super- 
 intendent of a saw-mill in making contracts for putting in logs 
 for the use of the mill, which are the eases cited by respond- 
 ent. It is also true, as was said in Wileox v. Chicago, Mil. & 
 St. Paul R. R. Co., 24 Minn. 269 (which involved the question of 
 the authority of the person to whom goods were delivered to 
 receive them), that a single act of an assumed agent, and a 
 singl(3 recognition of it, may be of so unequivocal and of so 
 positive and comprehensive a charai^ter as to place the au- 
 thority of the agent to do similar acts for the principal beyond 
 question. It is also true that the performanea of subsequent 
 as well as prior acts, authorized or ratified by the principal, 
 may be evidence of agency, where the acts are Of a similar 
 kind, and related to a continuous series of acts embracing the 
 time of the act in controversy, as indicating a general habit 
 •and course of dealing ; as, for example, the acts of a presi- 
 dent of a railway company in making drafts in the name of 
 the company, which were honored by it, which was the case 
 of Olcott V. Tioga R. R. Co., 27 N. Y. 546, cited by counsel. But 
 we think the books will be searched in vain for a ease where 
 it was ever held that authority to negotiate for the sale of 
 property to one person at one time on certain terms, the transfer 
 to be made by the principal in person, was evidence of au- 
 tliority to sell and transfer the same property at some former 
 time to another person on different terms. 
 
 There are sOme facts about this case that would naturally 
 incline the sympathies of a jury toward pilaintiff. He has so 
 far got nothing for the property which he gave to defendant. 
 The conduct of F. M. Horton was not calculated to commend 
 itself to their favor, as he admits obtaitting and retaining a 
 conveyance to his wife of the very land which McCurdy pro- 
 posed to give to defendant in exchange for this property. But 
 we do not see how, upon legal principles, the verdict can be 
 sustained under the present state of the evidence. 
 
 A new trial would, however, have to be granted on the 
 ground of error in the admission of evidence. The general 
 statement of the witness McCurdy that Frank M. Horton did 
 
IN AGENCY. 45 
 
 quite an extensive business at Spirit Lake trading in real 
 estate, and frequently bought and sold in the name of Jennie 
 L. Horton and Carolina W. Horton, without identifying the 
 transactions, or describing them, or in any way bringing them 
 home to the notice or knowledge of defendant, was inadmis- 
 sible to prove agency. The Court also erred in allowing the 
 same witness to testify that F. M. Horton was publicly and 
 generally known at Spirit Lake as the agent of Jennie L. 
 Horton. Agency cannot be proved by general reputation. 
 Judgment reversed, and new trial ordered. 
 
 Johnson V. Hurley, 115 Mo. 513 ; Loudon Society v. Hagerstown Bank, 36 
 Pa. St. 498; Mechem, 80; Story, 47. 
 
 G 
 
 RATIFICATION. 
 
 1 
 
 Defined. 
 
 Ratification is express or implied approval, whereby force and 
 effect is given to a previously unauthorized act. 
 
 State of Wisconsin v. Torinus. 
 Supreme Court of Minnesota, 1879. 
 
 26 Minn. 1. 
 
 The -State of Wisconsin brought this action, in the District 
 Court for Washington County, as indorsee of a promissory 
 note made by defendant to the order of one Harriman. The 
 averments of the complaint are, in substance, as follows : 
 
 On March 3, 1869, the Legislature of Wisconsin passed an 
 Act authorizing the Governor to appoint one or more agents 
 whose duty it should be to preserve and protect the timber 
 growing on the lands theretofore granted by Congress to the 
 State to aid in the construction of railroads, and to seize, in 
 the name and on behalf of the State, all logs and timber that 
 
46 ILLUSTRATIVE CASES 
 
 should be cut or carried away from such lands without lawful 
 authority, and to sell the same at public auction to the highest 
 bidder for cash, the money to be immediately paid into the 
 State treasury. From May, 1869, until 1874, Harriman was 
 the duly appointed agent of the plaintiff, under this Act, and 
 ~ in the summer of 1873 he seized a large quantity of pine saw 
 logs, which the defendants, during the previous winter, had 
 wrongfully cut on certain of the lands described in the Act 
 and belonging to plaintiff, and had driven to the St. Croix 
 boom. The logs thus seized Harriman advertised for sale at 
 public auction, for cash, to the highest bidder, and at the sale, 
 on July 25, 1873, they were struck off and delivered to the 
 defendants, who at once converted them to their own use, and 
 have never paid the plaintiff anything therefor. 
 
 On December 23, 1873, the defendants, in consideration of 
 such sale and delivery, made the note in suit, whereby they 
 promised to pay to Harriman or order $8,799.66, on May 1, 
 1874, with interest at ten per cent, per annum, which note, 
 before maturity, was indorsed and delivered by Harriman to 
 the plaintiff. 
 
 On February 15, 1878, the Legislature of Wisconsin passed 
 an Act expressly ratifying and confirming the sale made by 
 Harriman to the defendants, and the note taken by him on 
 account thereof, and making the same valid from the begin- 
 ning as fully as if he had always had full authority to sell on 
 credit and to take the note. Immediately after the passage 
 of this Act the present suit was brought. 
 
 A general demurrer to the complaint was overruled by 
 Brill, J., acting for the Judge of the first district, and the 
 defendants appealed. 
 
 In a former suit between the same parties, on the same 
 note, prior to the Act of 1878, the defendants had judgment 
 on the ground that, as Harriman had no authority to sell 
 except for cash, the sale made by him was unauthorized and 
 void, and the note, having no other consideration than the 
 sale, was also null and void, and that the sale could be ratified 
 and made good, only by Act of the Legislature of Wisconsin. 
 
IN AGENCV. 47 
 
 Cornell, J. In a former action between these parties, the 
 question was presented to this Court, on appeal therein, as to 
 the validity of the note in controversy in this action. Upon 
 the facts therein stated, it was held invalid for want of 
 consideration, for the reason that it was given solely upon an 
 unauthorized sale of logs from plaintiff to defendants, made 
 by an agent of the former, by which no title or interest what- 
 ever in the property was transferred: 24 Minn. 332. Since 
 then, and before the commencement of this action, the State, 
 by legislative enactment, has duly and fully ratified and 
 adopted the act of its agent Harrimaii in making the sale and 
 taking the note, and the question now before us relates to the 
 legal effect of this ratification. It is objected that it is inef- 
 fective for any purpose, because a contract void as prohibited 
 by statute cannot i be made good by a subsequent statute. 
 While this is true as to acts and contracts made absolutely 
 void and prohibited by law because of their illegal character, 
 and as being contra bonos mores, the rule has no application to 
 the facts of this case. Giving credit on the sale of logs, or 
 taking notes in payment, is not prohibited by any law or 
 statute. The act of Harriman as the agent of the State in 
 giving credit to the defendants on the sale of his principal's 
 property to them, though unauthorized and impliedly pro- 
 hibited by the statute which gave him his authority, was not 
 in itself an act of a wrongful or immoral nature, or tainted 
 with any vice of illegality of that character, nor was it pro- 
 hibited as such by any statute. The statute under which he 
 acted was not directed to that end. It was rather in the 
 nature of a power of attorney, which conferred upon the 
 agents of the State a specific and limited authority in refer- 
 ence to certain matters, and which defined particularly the 
 extent of such authority. In making the sale of his princi- 
 pal's property on time, and taking a note for the purchase- 
 money, the agent, Harriman, exceeded his delegated authority, 
 and, for that reason alone, his act was an invalid one. It 
 was competent, however, for the State as principal to make it 
 good by a legislative enactment, adopting it as its own ; for 
 it could have authorized it in the first instance, and whatever it 
 
48 ILLUSTEA-TIVE CASES 
 
 can do or direct to be done originally it can subsequently, 
 and, when done, lawfully ratify and adopt, with the same 
 effect as though it had been properly done under a previous 
 authority. That the State might, through its Legislature, in 
 the absence of any prohibition in its fundamental law, have 
 authorized Harriman as its agent, in the first place, to make 
 the very sale he did admits of no doubt. The proprietary 
 rights of a State are as absolute and unqualified as those of 
 an individual. It may, in the absence of any self-imposed re- 
 strictions in its Constitution, sell and dispose, of its property 
 upon its own terms and conditions, for cash or upon credit ; 
 and it may also take, hold, and enforce notes and obligations 
 received from the purchasers of its property the same as indi- 
 viduals can. But as the legislative department is the only 
 one that represents the State in respect to such rights, it alone 
 can exercise the power necessary to the enjoyment and protec- 
 tion of those rights, by the enactment of statutes for that pur- 
 pose. In the case before us, the State has duly ratified the 
 acts of its agent in making the sale to the defendants, so that 
 the title to the property which they purchased, the possession 
 of which they still hold, has become perfect, and they cannot 
 longer object that the note they gave is without consideration. 
 
 In respect to the other point suggested by the defendants, 
 in respect to the character of the plaintiff's title to the prop- 
 erty which it sold to the defendants, it is fully answered by 
 the case of Schulenberg v. Harriman, 21 Wall. 44, where it 
 was held that the legal title of the State to the lands from 
 which the logs in question were taken was an absolute one, 
 and that a stranger to the grant under which the State holds 
 its title cannot raise any question upon the non-performance 
 of any of the subsequent conditions contained in such grant. 
 The same doctrine is also explicitly held in Baker v. Gee, 1 
 Wall. 333. 
 
 Order afiirmed. 
 
 Mechem, 110 ; Flynn v. Des Moines & St. Louis E. E. Co., 63 la. 490 ; Goss 
 V. Stevens, 32 Minn. 472 ; Sogers v. Kneeland, 10 Wend. 218 ; U. S. Express 
 Co. V. Eawson, 106 Ind. 215 ; Drakely v. Gregg, 8 Wall. 242 ; Taymouth v. 
 KoeMer, 35 Mich. 22 ; Marsh v. Fulton Co., 10 Wall. 676; Mechem, 110. 
 
IN AGENCY. 49 
 
 What May Be Ratified. 
 Only Voidable Acts. 
 
 Only voidable -acts of the agent can be ratified. 
 
 Sanford v. Johnson. 
 
 Supreme Court of Minnesota, 1877. 
 
 24 Minn. 172. 
 
 Berry, J. Section 4, of chapter 56, Laws of 1869, enacts 
 that no power of attorney or other authority from a wife to her 
 husband, " to convey real estate, or any interest therein," shall 
 be of any force. The word " interest " embraces the estate of 
 a lessee, which is quite commonly denominated a leasehold 
 interest. This meaning of the word is also distinctly recog- 
 nized in § 10, c. 41, Gen. St., which provides that "no estate 
 or interest in lands other than leases, for a term not exceeding 
 one year," shall be created, etc. The word convey is evidently 
 used as comprehending the word "lease," just as the word 
 " conveyance " is used in §§ 18 and 22, c. 41, Gen. St., as com- 
 'prehending leases. 
 
 From this construction of the statute it follows that a hus- 
 band cannot, as his wife's attorney or agent, make a valid 
 lease of her real property. Hence, it further follows that the 
 lease attempted to be made by David Sanford (the plaintiff's 
 husband), and upon which the cause of action set up in the 
 complaint is founded, is absolutely void, and therefore no 
 action can be maintained upon it as such lease. It is claimed, 
 however, that the evidence shows that the plaintiff ratified the 
 actibn of her husband, and adopted it as her own. The lease 
 attempted to be made by David Sanford being absolutely void 
 by the statute, it was incapable of ratification in any legiti- 
 mate sense. Its provisions might be adopted by the plaintiff 
 in a lease to be made by her, but not otherwise. This might 
 be done by parol, except as respected the term. As this ex- 
 ceeded one year, the provisions with regard to it could be 
 4 
 
50 ILLUSTRATIVE CASES 
 
 adopted by the plaintiff only by writing: Gen. St., c. 41, § 10. 
 Although there was evidence in the case tending to establish 
 a parol lease by plaintiff to defendant, there was no evidence 
 of any writing made by her in the premises, nor any evidence 
 that the term of defendant's tenancy was in any way attempted 
 to be fixed by her, except by her ineffectual adoption of the 
 term prescribed in the void lease made by her husband. As- 
 suming, then, the fact of the making of a parol lease by the 
 plaintiff, the result is that, as no term was fixed by it, the de- 
 fendant became plaintiff's tenant at will ; that he was liable to 
 her for rent as such tenant at will, and that he was authorized 
 to terminate his tenancy by proceeding as directed in § 21, c. 
 75, Gen. St. : Huyser v. Chase, 13 Mich. 98. 
 
 But the present action is not founded upon any alleged lia- 
 bility of the defendant as such tenant at will, but solely upon 
 the void lease made by the plaintiff's husband ; and since, as 
 we have already determined, no action can be maintained 
 upon the void lease, it follows that the defendant's motion for a 
 dismissal of the action should have been granted ; and it 
 further follows that the conclusion of law found by the Court 
 below, to the effect that the plaintiff was entitled to recover, 
 is erroneous. The judgment is accordingly reversed. 
 
 Henry v. Heeb, 114 Ind. 275 ; Whitney v. Dutch, 14 Mass. 457 ; Day v. Mc- 
 Allister, 15 Gray, 433 ; Story, 240 ; Mechem, 114. 
 
 Torts. 
 The agent's unauthorized tort may be ratified by the principal. 
 
 Morehouse v. Northrop. 
 
 Supreme Court of Errors of Connecticut, 1866. 
 
 33 Conn. 380. 
 
 Action on the case against Gad G. Northrop and John J. 
 Stillson, the declaration containing two counts. In the first 
 it was alleged " that at the town of New Milford, on the 3d 
 day of May, 1862, at the special instance and request of the 
 
IN AGENCY. 51 
 
 defendants, they, the plaintiffs, bargained with the defendants 
 to buy of them a large number of hogs, to wit, one hundred 
 and forty-three hogs, which said hogs belonged to the said 
 defendants jointly, at the price of $536.25 ; and the defendants 
 then and there, by falsely and fraudulently warranting the 
 said hogs to be sound and in a healthy condition,, and free 
 from all diseases and distempers whatsoever, then and there 
 sold the said hogs to the plaintiffs, for and in consideration 
 of the sum aforesaid, then and there paid by the plaintiffs to 
 the defendants for the same. Nevertheless, the plaintiffs say 
 that the said hogs, at the time of the said sale and warranty 
 thereof, were in an unsound and unhealthy condition, and 
 were badly diseased and distempered, so that they lost a large 
 number of the said hogs, to wit, one hundred, which said last- 
 mentioned hogs died by reason of being so as aforesaid dis- 
 eased and distempered at the time of said sale to the plain- 
 tiffs. And so the plaintiffs say that the defendants, on the 
 day and year last aforesaid, at New Milford aforesaid, deceived 
 them, the plaintiffs, in the said sale of said hogs, to the great 
 damage of the plaintiffs." 
 
 In the second " count it was further alleged that, " at the 
 same place and time, at the special instance and request of 
 the defendants, they, the plaintiffs, bargained with the defend- 
 ants to buy of them a great number of other hogs, to wit, one 
 hundred and forty-three other hogs, belonging to the defend- 
 ants jointly, at the price of $536.25, to be paid as follows, to 
 wit, by the note of the said Seymour Morehouse, dated May 
 3, 1862, payable sixty days from its date, to the order of the 
 said Silas H. Hill, at the Bank of Litchfield County, for said 
 sum of $536.25, for value received, indorsed by the said 
 Silas H. Hill; which note was then and there made, 
 executed,, indorsed, and delivered to the defendants; and 
 the defendants then and there by falsely and fraudulently 
 warranting, affirming, and declaring that said last-men- 
 tioned hogs were sound and in no wise sick, diseased, 
 or distempered, did then and there sell said last-mentioned 
 hogs to the plaintiffs, for and in consideration of the price last 
 
52 ILLUSTRATIVE CASES 
 
 aforesaid, then and there paid by the plaintiffs to the defend- 
 ants for the same, in the manner last aforesaid; neverthe- 
 less, the plaintiffs say that at the time of said last-mentioned 
 sale, said last-mentioned hogs were not sound, but were siisk, 
 diseased, and distempered, which w^s then and there well 
 known to the defendants ; but the defendants, intending to- 
 cheat and defraud the plaintiffs, concealed the same from the 
 plaintiffs, and the plaintiffs were wholly ignorant thereof, and 
 a great number of said last-mentioned hogs, to wit, one hun- 
 dred, became and were so greatly diseased and distempered 
 that they died ; and so the plaintitis wholly lost the same, to 
 their great damage." 
 
 Damages were laid at the sum of |700. The general issue was 
 pleaded, with notice of special matter to be given in evidence. 
 
 On the trial to the jury, before Pardee, J., the plaintiffs 
 offered evidence to prove that the defendant Northrop, at the 
 time of the sale of the hogs and as part of the negotiation 
 which resulted in the sale, declared to the plaintiffs that the 
 hogs " were raised just across the Hudson River, in the coun- 
 ties next back of Newburg," in the State of New York. They 
 also offered evidence to prove that the hogs were raised in the 
 State of Ohio, and had been brought from thence by railroad 
 and river transports to Newburg, where the defendants bought 
 them ; that these facts were known to the defendants at the 
 time of the sale ; and that hogs raised in Ohio and transported 
 thence in the manner above described, were liable thereby to 
 contract diseases and become unsound, and were more likely 
 to be unhealthy and unsound than hogs raised in the counties 
 about Newburg. The defendants objected to the admission 
 in evidence of the above declaration of Northrop, but the 
 Court permitted the whole of the negotiations connected with 
 the sale to go to the jury, charging them that this declaration 
 was not admitted as a substantive ground of recovery, but 
 that they might consider it, in connection with the other evi- 
 dence above detailed, in reference to the question whether, if 
 their verdict should be for the plaintiffs, it should include any, 
 and if any, what amount of exemplary damages. 
 
IN AGENCY. 53 
 
 The plaintiffs also offered in evidence a note, corresponding 
 io that described in the second count of their declaration, 
 together with proof that the note was duly executed and 
 delivered, in payment for the hogs, immediately upon the 
 ■completion and in accordance with the terms of the contract 
 of sale, that the defendants subsequently had it discounted at 
 a bank for their benefit, and that it was duly paid at maturity. 
 To the admission of the note and the accompanying evidence 
 the defendants objected, on the ground of variance, and also 
 because it was not alleged in the declaration that the 'note 
 had been paid, but the Court admitted all the evidence thus 
 offered. 
 
 It was admitted that the defendants, at Newburg, became 
 the joint owners of the hogs, in equal shares, and so continued 
 until their sale to the plaintiffs ; that at Pawling, in the State 
 of New York, the hogs were taken by Northrop into his pos- 
 session and under his control, in pursuance of an arrangement 
 there made between Stillson and himself, for the express pur- 
 pose of effecting a sale of them for the joint and equal 
 benefit of both owners ; and that Northrop afterward, in the 
 absence of Stillson, sold the hogs at New Milford to the 
 plaintiffs, at a profit, which was equally divided between the 
 defendants. > 
 
 The plaintiffs also offered evidence to prove that Northrop, 
 at the time of the sale, and as one of its terms and conditions, 
 made the warranty, and the affirmations and representations 
 •described in their declaration, and that the same were false 
 and fraudulent, and well known to him at the time to be 
 untrue. 
 
 The defendants requested the Court to charge the jury, 
 
 1. That the plaintiffs could not recover as against either of 
 ihe defendants, and particularly against Stillson, without prov- 
 ing a joint contract, as alleged in the declaration. 
 
 2. That the plaintiffs could not recover for any fraud set 
 up in the declaration unless it was a joint fraud ; that at 
 any rate Northrop, through a part owner with Stillson, 
 could not bind Stillson by any fraudulent representations to 
 
' 54 ' ILLUSTRATIVE CASES 
 
 which Stillson was not a party and of which he had no 
 knowledge. 
 
 3. That the plaintiffs' declaration in both counts is an action 
 upon a contract of warranty, and that proof of fraud without 
 proof of the warranty was not sufficient to entitle the plain- 
 tiffs to recover in this form of action. 
 
 4. That the evidence that Northop represented that the 
 hogs were raised in the counties near Newburg, in the State 
 of New York, was not admissible as against either defendant, 
 as no such fraudulent representation was declared upon in the 
 declaration. 
 
 The Court did not so charge the jury, but charged them 
 that, if they believed from the evidence that at the time of 
 the sale the defendant Northrop did, in the absence of the de- 
 fendant Stillson, falsely and fraudulently warrant the hogs to 
 the plaintiffs to be sound and free from all disease, and that 
 the plaintiffs had suffered damage thereby, or if, from the 
 evidence, they believed that Northrop at the time of the sale,, 
 in the absence of Stillson, made a false and deceitful repre- 
 sentation to the plaintiffs, that the hogs were sound and in 
 no wise eick, diseased, or distempered, with the design and for 
 the purpose of inducing the plaintiffs to purchase the hogs, 
 knowing or believing such representation to be untrue, and 
 that the plaintiffs were induced to make, and did make, such 
 purchase by reason of such false and deceitful representations,, 
 and had suffered damage thereby, they might render a verdict 
 against both defendants ; otherwise their verdict should be for 
 the defendants. 
 
 The jury returned a verdict for the plaintiffs to recover 
 $323 damages ; and the defendants moved for a new trial, on 
 account of the admission of the evidence objected to, and of 
 the refusal of the Court to charge as requested. 
 
 Carpenter, J. The plaintiffs had their election to bring 
 their action in assumpsit or tort. They chose the latter. 
 The declaration contains two counts ; the first is for a false 
 warrant}', the second is for a false warranty and also for a 
 
IN AGENCY. 55 
 
 fraud in the sale of the hogs. "Whether this count would 
 have stood the test of a special demurrer, it is not now nece^.- 
 sary to inquire. It is in form and substance a count for fraud, 
 and with the exception of the word warranting, is in the 
 usual form. We think it was so intended by the pleader, 
 and as such was properly joined with a count for false war- 
 ranty : Humiston v. Smith, 22 Conn. 19. 
 
 The other questions arising upon the record will be consid- 
 ered in their order. 
 
 1. The defendants objected to the evidence offered to prove 
 the declaration of Northrop, made during the negotiations 
 which resulted in the sale, that the hogs in question " were 
 raised just across the Hudson River, in the counties next bach of 
 Newhurg " in the State of New York. 
 
 The view we have taken of the nature of this action re- 
 lieves this question of all difficulty. Under the second count 
 the plaintiffs must not only j)rove the false representations, 
 but must also prove that the defendant Northrop knew them 
 to be false. This evidence was offered as tending to prove the 
 scienter, and as affecting the question of damages. For this 
 purpose we think the evidence was properly admitted. 
 
 If it be notoriously true, as the plaintiffs claimed, that hogs 
 raised in that locality were much more likely to be sound and 
 free from disease than those transported from the West, the 
 motive of Northrop in making the declaration is apparent. 
 He could have had no other object, assuming the declaration 
 to be untrue, than to mislead and deceive the plaintiffs in 
 respect to the soundness of the hogs. He had declared them 
 to be sound and free from disease ; and then to allay all 
 suspicion and induce the plaintiffs to believe this representa- 
 tion, he adds that the}' were raised just back of Newburg. 
 It was an artifice well calculated to deceive the plaintiffs, and 
 from it, in connection with the other proof, the jury might 
 well infer that they were deceived, and that it was done will- 
 fully. 
 
 2. The note described in the second count, and the evi- 
 dence that it was delivered to the defendants in payment, re- 
 
56 ILLUSTRATIVE CASES 
 
 ceived and negotiated by them, and paid by the plaintiffs when 
 due, were objected to as inadmissible ; but the Court overruled 
 the objection. The ground of the objection was that there was 
 no allegation that the note had been paid, and because it was 
 a variance from the allegations in the declaration. The latter 
 objection is not insisted on. The note is correctly described, 
 and it is alleged that the hogs were to be paid for by the note, 
 and that it was delivered to the defendants at the time of 
 sale. These allegations are pertinent to the plaintiffs' case 
 and may be proved whether the declaration is sufficient or 
 otherwise: Adams v. Way, 32 Conn. 160. The insufficiency 
 of the declaration cannot be taken advantage of by way of 
 objection to evidence offered in support of the averments in 
 the declaration. Thus far then the evidence offered, was ad- 
 missible ; and if the rest were inadmissible we should refuse 
 to grant a new trial, for the reason that the defendants do not 
 discriminate between admissible and inadmissible testimony 
 and confine their objections to the latter : Eeg. Gen. 18 Conn. 
 574 ; Fitch v. Woodruff & Beach Iron Works, 29 Conn. 82 ; 
 State V. Alford, 31 Conn. 40. 
 
 But we are of the opinion that all the evidence was strictly 
 admissible. The first count alleges payment without specify- 
 ing how it was made. This allegation may be proved, either 
 by proof of payment in money or of payment in some other 
 thing which the defendants received and accepted as money ; 
 such as bank checks, bills of exchange, promissory notes or 
 the like. All the evidence objected to tended to prove this 
 averment, and from this evidence alone the jury would have 
 been justified in finding it true. 
 
 In respect to the second count, it was unnecessary for 
 the plaintiffs to aver or prove the negotiation or payment 
 of the note in order to maintain their action. The consid- 
 eration of the contract was the note, and when that w'as de- 
 livered the contract was complete, and the plaintiffs had a 
 right of action immediately. They were not bound to wait for 
 the note to mature, but might sue at once, and while the note 
 was in the defendants' hands. This part of the evidence 
 
IN AGENCY. 57 
 
 therefore was not essential to the plaintiffs' right of recovery. 
 But we are of the opinion that it was admissible nevertheless. 
 It proved the value of the consideration, and that it was not a 
 mere technical one. That fact might well be considered by 
 the jury in estimating damages. 
 
 3. The last objection respects the charge of the Court to 
 the jury. The defendants were joint OAvners of the property 
 in question. They made an arrangement by which Northrop 
 took it into his keeping, and under his control and manage- 
 ment, for the purpose of effecting a sale thereof, for the equal 
 and joint profit and benefit of the owners. Northrop in the 
 absence of Stillson sold the hogs at a profit which was equally 
 divided between them. The case does not show that Stillson, 
 after the circumstances of the warranty and fraud came to 
 his knowledge, ever repudiated the contract, or offered to 
 restore any part of the consideration ; but on the contrary 
 he still insists upon retaining his portion of the profits. Under 
 these circumstances the jury were told, in substance, that if, 
 in the contract of sale, there was a false warranty or fraud, 
 whereby the plaintiffs had sustained damage, both defendants 
 were liable. We see no objection to this charge. 
 
 Northrop was expressly authorized to sell. In doing so, as 
 the jury must have found, he falsely warranted the property 
 sold, or was guilty of fraud. Stillson by his subsequent con- 
 duct ratified the contract, not in part but in Mo, including 
 the warranty and deceit. He was therefore a party to the 
 contract. He shared in the profits, and must not now com- 
 plain that he is required to share in the responsibility. By 
 the ratification of the acts of an agent, in tort as well as in 
 contract, a liability is incurred by the principal : Parsons on 
 Contracts, 51, 52, and cases there cited. 
 
 If the defendants are to be regarded as partners in this 
 transaction their liability will be the same. That all the 
 members of a firm are answerable for a false warranty made 
 by one of the members, in a sale of partnership property, 
 within the scope of his authority, is too clear for argument. 
 They are equally liable for a fraud under the same circum- 
 
58 ILLUSTRATIVE CASES 
 
 stances, especially where they share in the profits : Locke v. 
 Stearns, 1 Met. 560. 
 
 We do not advise a new trial. 
 
 Tucker v. Jerris, 75 Me. 184; Griswold v. Haven, 25 N. Y. 595 ; Story, 239; 
 Mechem, 113. 
 
 Forgery. 
 
 The weight of opinion seems to be to the effect that a forgery can 
 be ratified. 
 
 Wellington v. Jackson. 
 
 Supreme Judicial Court of Massachusetts, 1876. 
 
 121 Mass. 157. 
 
 Contract against the maker of a promissory note. Answer, 
 a denial that the defendant made the note. 
 
 After the commencement of the action the defendant filed 
 his petition in the Court of Bankruptcy and obtained his dis- 
 charge which was filed in the case. His assignee obtained 
 leave to come in and defend, and the plaintiffs prosecuted the 
 action for the purpose of obtaining judgment and execution 
 against the property of the defendant attached in the action, 
 and the assignee defended on behalf of the creditors. Trial 
 in the Superior Court, before Putnam, J., who allowed a bill 
 of exceptions in substance as follows : 
 
 There was evidence tending to show that on May 1, 1875, 
 and before the defendant went into bankruptcy, the note, hav- 
 ing been protested for non-payment, was presented to him, 
 and he examined it, and said it should be arranged the follow- 
 ing Monday. The plaintiffs also offered in evidence copies of 
 the proceedings in bankruptcy, from which it appeared that 
 the note in suit was contained and described in the schedule 
 of the creditors of Jackson, signed and sworn to by him. This 
 evidence was objected to on the ground that it was not admis- 
 sible as against the defendant's assignee ; but the Judge ad- 
 mitted it and the defendant excepted. 
 
IX AGENCY. 69 
 
 The plaintiffs contended, among other things, that if the 
 jury were not satisfied upon the evidence that the defendant 
 actually signed the note, yet that, by his conduct in reference 
 to it, he was estopped from denying his signature. 
 
 The presiding Judge instructed the jury as follows : " If, 
 upon the whole evidence in the case, the jury shall be satisfied 
 that the defendant, knowing that his signature was forged, by 
 his words, acts, or silence, gave the plaintiffs to understand that 
 it was not forged, but was a genuine signature, intending 
 thereby to cause the plaintiffs to rely on the note as his note, 
 and the plaintiff's did so rely and act upon it, and were injured 
 thereby, the defendant would be estopped to deny that his 
 name was not a genuine signature, and that it was not put 
 there by him or by his authority." 
 
 The counsel for the assignee asked the Judge to give these 
 instructions : " 1. Estoppels are not favored in law, because 
 they operate to shut out the truth, and to prevent parties from 
 asserting or defending their rights by proof of actual existing 
 facts. 2. There must be shown a willful intent to induce the 
 party to act on the faith of the alleged statements or repre- 
 sentations, in addition to the fact that such statements were 
 acted upon." 
 
 The Judge gave the second instruction, as comprised sub- 
 stantially in the instructions already given, but declined to 
 give the first. 
 
 The Judge stated to the jury that if they found their verdict 
 for the plaintiff's, he should inquire of them whether they 
 found it on the ground that the defendant executed the note, 
 or the ground of estoppel. The jury found for the plaintiff's, 
 and answered in writing that they found on the ground that 
 the defendant had "acknowledged the signature to the 
 note." 
 
 The defendant then filed a motion for a new trial ; but the 
 Judge overruled the motion, on the ground that it appeared, 
 by the special finding of the jury, that they did not find for 
 the plaintiffs on the ground of estoppel, but on the ground 
 that the defendant had acknowledged the signature of the 
 
€0 ILLUSTRATIVE CASES 
 
 note to be his ; and being of the opinion that upon that ground 
 the verdict was not against the weight of evidence. 
 
 To the above ruUngs and refusals to rule the assignee al- 
 leged exceptions. 
 
 Gray, C. J. Although the signature of Edward H. Jackson 
 -was forged, yet if, knowing all the circumstances as to that 
 signature, and intending to be bound by it, he acknowledged 
 the signature and thus assumed the note as his own, it would 
 bind him, just as if it had been originally signed by his au- 
 thority, even if it did not amount to an estoppel in pais: 
 Oreenfield Bank v. Crafts, 4 Allen, 447 ; Bartlett v. Tucker, 104 
 Mass. 336, 341. The answer of the jury to the question of the 
 Court shows that they found for the plaintiffs upon this ground, 
 .and renders immaterial the instructions given or requested 
 upon the subject of estoppel. 
 
 The schedule of creditors, signed by the debtor, was compe- 
 tent evidence, as an admission that his signature to the note 
 was made by him or by his authority. All doubt as to the 
 admissibility of this evidence, as against his assignee, is dis- 
 pelled by referring to the provisions of the Bankrupt Act. 
 The schedule is required to be annexed to and filed with the 
 petition in bankruptcy, and must therefore have been pre- 
 pared before the commencement of the bankruptcy proceed- 
 ings, by relation to which the title to the debtor's property 
 vests in his assignee : U. S. Rev. Sts., §§ 5014, 5044. And if 
 the assignee elects to assume the defense of a suit then pend- 
 ing against the bankrupt, he can only " defend the same in 
 the same manner and with the like effect as it might have 
 been defended by the bankrupt :" § 5047. 
 
 Exceptions overruled. 
 
 Greenfield t>. Crafts, 4 Allen, 447 ; Story, 240, note ; Mechem, 116 ; Bishop 
 Con. 295, 345. 
 
IN AGENCY. 61 
 
 Forgery — The Contrary Opinion. 
 
 But it has been held that, as a forgery is void, it is not susceptible 
 of ratification. 
 
 Workman v. Wkight. 
 
 Supreme Court Commission of Ohio, 1878. 
 
 33 Ohio St. 405. 
 
 r "Wright, J. Under the pleadings and findings of the Court 
 ' below, it may be assumed that the name of Calvin Wright 
 was a forgery, as there was evidence tending to show the fact, 
 and we cannot say that the conclusion reached, in this re- 
 spect, was clearly against the testimony. It is claimed, how- 
 ever, that his admissions, and promises to pay the note, ratified 
 the unauthorized signatures. 
 
 Had Workman, the owner of the note, taken it upon the 
 faith of these admissions, or had he at all changed his status 
 by reason thereof, .such facts would create an estoppel, which 
 would preclude Wright now from his defense. This appears 
 from most of the authorities cited in the case. But no founda- 
 tion for an estoppel exists. All these statements of Wright, 
 whatever they were, were made after Workman became the 
 owner of the paper. Workman did not act upon them at all ; 
 he was, in no way, prejudiced by them, nor did they induce 
 him to do, or omit to do, anything whatever to his disadvan- 
 tage. But it is maintained that, without regard to the princi- 
 ple of estoppel, these admissions and promises are a ratifica- 
 tion of the previously unauthorized act, upon the well-known 
 maxim, Omnis ratihabitio retrotrahitur et mandato priori sequi- 
 paratur. 
 
 It is said, that a distinction exists between the classes of 
 cases to which this principle applies. Where the original act 
 was one merely voidable in its nature, the principal may ratify 
 the action of his agent, although it was unauthorized. But 
 where that act was void, as in case of a forgery, it is said no 
 ratification can be made, independent of the principle of 
 
62 ILLUSTRATIVE CASES 
 
 estoppel, to which we have alluded. Most of the authorities, 
 cited by counsel for plaintiff in error, are of the first class, 
 where the act was only voidable. 
 
 Bank v. Warren, 15 N. Y. 577, was where one partner, 
 without authority, and for his own exclusive benefit, indorsed 
 his own note in the firm name, his copartner was held bound 
 by a subsequent promise to pay it, without any independent 
 consideration. 
 
 In Grout v. DeWolf, 1 R. I. 393, the third clause of the head 
 -note is, " Where the person, whose signature is forged, promises 
 the forger to pay the note, this amounts to ratification of the 
 signature, and binds him." But an examin atien of the case 
 shows that evidence was offered to prove that plaintiff had 
 bought the paper in consequence of what defendant said to- 
 him, and the Court charged that, if before purchasing the 
 note, plaintiff asked defendant if he should buy, and he was 
 told he might, defendant could not excuse himself on the 
 ground of forgery. So that the case may be put upon 
 the ground of estoppel, without relying upon the ground stated 
 in the head note quoted. 
 
 Harper v. Devene, 10 La. An. 724, was where a clerk of a 
 house signed the name of the house by himself as agent. 
 Defendant, a member of the house, afterward took the note, 
 corrected its date, and promised to pay it ; and this was held 
 a ratification to make him liable. In this case, and many 
 like it, it may be remarked that the agent assumed to 
 have authority, and does the act under that belief ; but in 
 case of a forgery, there is no such authority and no such 
 belief. 
 
 The case of Forsythe v. Day, 46 Me. 177, involves the prin- 
 ciple of estoppel. 
 
 The cases of Bank ■;;. Crafts, 4 Allen, 447, and Howard v. 
 Duncan, 3 Lansing, 1^5, sustain the views of plaintiff in error, 
 holding that a forgery may be ratified, independently of tho 
 principle of estoppel, and in the absence of any new consider- 
 ation for the ratifying promise — a conclusion, however, to 
 which we cannot agree. 
 
IN AGENCY. 63 
 
 The case in 3 Lansing is criticised in 3 Albany Law Jour- 
 nal, 331. 
 
 Upon the other hand, there are authorities holding that a 
 forgery cannot be ratified. There is a fully considered case in 
 the English Exchequer : Brook v. Hook, 3 Albany Law Jour. 
 255 ; 24 Law Times, 34. This was a case where defendant's 
 name was forged, and he had given a written memorandum, 
 that he would be responsible for the bill. Chief Baron Kelly 
 places his opinion upon the grounds : 1. That defendant's 
 agreement, to treat the note as his own, was in consideration 
 that plaintiff would not prosecute the forger; and 2. That 
 there was no ratification, as to the act done — the signature to 
 the note was illegal and void. And though a voidable act 
 may be ratified, it is otherwise when the act is originally, and 
 in its inception, void. The opinion fully recognizes the prop- 
 osition, that where acts or admissions alter the condition 
 of the holder of the paper the party is estopped, but it is 
 necessary that such a case should be made. It is further held, 
 that cases of ratification are those where the act was pretended 
 to have been done for or under the authority of, the party 
 sought to be charged, which cannot be in case of a forgery. 
 A distinction is also made between civil acts, which may be 
 made good by subsequent recognition, and a criminal offense, 
 which is not capable of ratification. Baron Martin did not 
 concur. In Woodruff & Robinson v. Monroe, 33 Md. 147, this 
 is held : " If, in an action against an indorser of a promissory 
 note by the bona fide holders thereof, it be shown that the in- 
 dorsement was not genuine, and the defendant did not ratify 
 or sanction it prior to the maturity of the note and its transfer 
 to plaintiff, he is not liable. But if he adopted the note prior 
 to its maturity, and by such adoption assisted in its negotia- 
 tion, he would be estopped from setting up the forgery in a 
 suit by a bona fide holder. But any admissions, by the defend- 
 ant, made subsequently to the maturity of the note, would not 
 be evidence that he had authorized the indorsement of his 
 name thereon." See, also, Williams ■;;. Bayley, L. R., 1 Ap- 
 peals, H. L. 200. 
 
64 ILLUSTRATIVE CASES 
 
 In McHugh V. County 'of Schuylkill, 67 Pa. St. 391, the 
 defense to a bond was forgery. The Court below charged that 
 if the obligor subsequently approved and acquiesced in the 
 forgery or ratified it, the bond was binding on him. It was 
 held that, there being no new consideration, the instruction 
 was error ; also, that a contract infected with fraud was void, 
 not merely voidable, and confirmation without a new consid- 
 eration was nudum pactum. See, also, Negley v. Lindsay, 67 
 Pa. St. 427. Daniels recognizes this proposition : 2 Daniels 
 Neg. Inst., § 1352. 
 
 Upon principle we cannot see how a mere promise to pay a 
 forged note can lay the foundation for liability of the maker 
 so promising, when the promise was made, as it was, under 
 the circumstances set forth in the record. In addition to the 
 fact that there are no circumstances to create an estoppel, 
 there was no consideration for the promise. Wright received 
 nothing, and it is a simple nudum pactum. The consideration 
 for a promise may be either an advantage to the promisor or a 
 detriment to the promisee, but here neither exists. Wright 
 had signed a note, and when the one in suit was shown him, said 
 he would pay it, supposing it to be the one he had signed. 
 He was an ignorant man who could not read writing, though' 
 he could sign his name, and when he saw the paper, seeing 
 that the signature spelt his name, and being unable to read 
 the body of the instrument, he said it was all right, and he 
 would pay it. But the promise was without that consideration 
 which would make it a binding contract. 
 
 Judgment affirmed. > 
 
 Bishop Con. 847 ; Woodruff v. Munroe, 33 Md. 147 ; McHugh v. County of 
 Schuylkill, 67 Pa. St. 391 ; Corser v. Paul, 41 N. H. 24. 
 
IN AGENCY. 65 
 
 Requisites of Ratification. 
 Capacity of Principal. 
 
 The person ratifying must have had and still have capacity to do 
 and delegate the act. 
 
 O'Connor v. Arnold. 
 
 Supreme Court of Indiana, 1876. 
 
 53 Ind. 203. 
 
 BiDDLB, J. The appellees placed an account against the 
 appellant, for merchandise sold and delivered to him, in the 
 hands of Richard Norris, an attorney, for collection. Norris 
 proceeded by suit and recovered judgment against the appel- 
 lant for $497.34. This is the judgment before us, which the 
 appellant seeks to reverse. 
 
 Before suit was brought, while the account was in the hands 
 of Norris for collection, and after it had been presented for 
 payment to the appellant by Norris, the appellant paid 
 to G. D. Henkle, to be credited on the account, $150, for 
 which Henkle, who occupied the same room with Norris, but 
 had no business connection with him, gave a receipt accord- 
 ingly, signed, "Richard Norris, per G. D. Henkle." At the 
 time Henkle so received the money from the appellant and 
 gave the receipt for it, he had no authority from the appellees 
 nor from Norris to so receive it. On being told of the trans- 
 action by Henkle, Norris ratified the act ; but, afterward, on 
 ascertaining that the appellees never had received the money 
 so paid to Henkle by the appellant, he repudiated the act of 
 Henkle. The money never came to the hands of Norris, and 
 the appellees never authorized nor ratified the act of Henkle. 
 Were the appellees bound by the payment thus made to 
 Henkle by the appellant and so ratified by Norris ? This is 
 the sole question in the case. If they were sO bound, the 
 judgment is too much by $150 and interest upon it. If they 
 were not so bound, then the judgment is right. 
 
 " When a demand is placed in the hands of an attorney-at- 
 5 
 
66 ILLUSTRATIVE CASES 
 
 law for collection, without any special instructions, the au- 
 thority conferred upon, and the duty assumed by, him is [are] 
 to use due diligence to collect the debt by suit or otherwise. 
 He has no authority to compromise with the debtor, and 
 canjiot bind his principal by any arrangement short of 
 an actual collection of the money:" Miller v. Edmonston, 
 8 Blackf. 291. The same principle is adhered to in Corning 
 V. Strong, 1 Ind. 329. The agency of Norris involved in its 
 duties particular learning and professional skill. These he 
 could not delegate. The act of an agent appointed by an 
 agent will not bind the original principal, unless the appoint- 
 ment of such sub-agent was by authority expressed or implied, 
 or afterward ratified by the principal. The relatioa of prin- 
 cipal and agent did not exist between the appellees and 
 Henkle, and it is plain that Norris could not, by virtue of his 
 agency from the appellees, appoint Henkle a substitute, so as 
 to make his acts bind the appellees ; and if this be plain, it is 
 just as plain that the ratification of Henkle's acts by Norris 
 ■did not bind the appellees. If he could not authorize the act, 
 he could not ratify it. When the appellant paid the money to 
 Henkle, he had no reason to suppose that Plenkle was the 
 agent of the appellees, or that his act would bind them. 
 Indeed, he had strong reasons to believe otherwise ; because 
 he knew that the claim was in the hands of Norris for collec- 
 tion. We are of opinion that the $150 was not a proper credit 
 against the account of the appellees. The two cases cited 
 above we regard as in point with this case. The following 
 cases touching agencies, though not directly in point, fortify 
 this opinion : Smith v. Gibson, 6 Blackf. 369 ; Kirk v. Hiatt, 2 
 Ind. 322 ; Pruitt v. Miller, 3 Ind. 16 ; Reitz v. Martin, 12 Ind. 
 306 ; Berry v. Anderson, 22 Ind. 36 ; Cruzan v. Smith, 41 Ind. 
 288; Rathel v. Brady, 44 Ind. 412; The Indianapolis, etc., 
 Union v. The Cleveland, etc., R. W. Co., 45 Ind. 281 ; Loomis 
 V. Simpson, 13 Iowa, 532 ; Smith v. Sublett, 28 Texas, 163. 
 The judgment is afHrmed, with costs. 
 
 Mechem, 125, 126 ; Hastings v. Bangor, 18 Me. 436 ; McArthur v. Times Co., 
 48 Minn. 319 ; Zottman v. San Francisco, 20 Oal. 96. 
 
IN AGENCY. 67 
 
 Knowledge of Material Facts. 
 
 The principal must have knowledge of all material facts, and know- 
 that he will not be bound without ratification. 
 
 Billings v. Moerow. 
 
 Supreme Court of California, 1857. 
 
 7 Cal. 171. 
 
 Murray, C. J. This was an action of ejectment in the Court 
 below. 
 
 The plaintiff deraigns his title from John A. Sutter, Sr., 
 through sundry mesne conveyances, the first of which purports 
 to have been executed by virtue of a power of attorney from 
 Sutter to Henry A. Schoolcraft, dated the 28th of July, 1849, 
 which is in the following words, viz. : " John A. Sutter to 
 Henry A. Schoolcraft : Know all men by these presents, that I, 
 J. A. Sutter, have this day made, constituted, and appointed 
 Henry A. Schoolcraft my true and lawful attorney, for me and 
 in my name to superintend my real and personal estate, to 
 make contracts, to settle outstanding debts, and generally to do 
 all things that concern my interest in any way, real or per- 
 sonal whatsoever, giving my said attorney full power to use 
 my name to release others or bind myself, as he may deem 
 proper and expedient; hereby making the said Schoolcraft 
 my general attorney and agent, and by these presents ratify- 
 ing whatsoever my said attorney may do by virtue of this 
 power. In witness whereof, I have hereunto set my hand and 
 seal, this 28th day of July, A. D. 1849. J. A. Suttee." 
 
 It requires but a glance at this instrument to perceive that 
 no authority is contained in it to convey real estate. The 
 power is limited and special, and cannot be extended by impli- 
 cation to other acts more important in their character than 
 those expressly provided in the body of the instrument. 
 
 The rule may be thus stated : that where the authority to 
 perform specific acts is given in the power, and general words 
 are also employed, such words are limited to the particular acts 
 authorized. 
 
68 ILLUSTRATIVE CASES 
 
 This rule is too well understood to require illustration, and 
 the learned counsel for the respondents did not seriously con- 
 tend that the letter of attorney contained any power to. sell real 
 estate, but insisted, that the sale, though void or defective, was 
 afterward ratified by Sutter, by a subsequent deed executed 
 by hira on the 20th of May, 1850, which is as follows, viz. : 
 
 " John A. Sutter to Henry A. Schoolcraft : Know all men by 
 these presents, that I, J. A. Sutter, of Hock Farm, in the terri- 
 tory of California, have this day made and concluded a final 
 settlement with Henry A. Schoolcraft, my acknowledged agent 
 and attorney-in-fact since the 28th day of July, A. D. 1849, 
 for all the business matters and things in anywise apper- 
 taining to my interest, and upon such final settlement, I do 
 hereby acknowledge myself held and firmly bound by all his 
 acts as such agent and attorney-in-fact for me ; hereby ratify- 
 ing and confirming by these presents, whatsoever he may have 
 done in my name or under my seal at any time heretofore, 
 and also do I acknowledge the receipt in full of all sums of 
 money, dues, obligations, and other things, of the said Henry 
 A. Schoolcraft, belonging to me, on account of said agency 
 and attorneyship in fact, and that on the part of said Henry 
 A. Schoolcraft, there is nothing due or owing to me up to the 
 date of these presents. Witness my hand and seal, at Sacra- 
 mento, California, this 20th day of May, in the year of our 
 Lord eighteen hundred and fifty. 
 
 (Signed.) J. A. Sutter." 
 
 This paper does not, upon its face, purport to be a ratifica- 
 tion of sales of land made by Schoolcraft, but a deed of settle- 
 ment between Sutter and his agent, by virtue of the power, 
 of the 28th of July, 1849, in which he, Sutter, " acknowledges 
 himself held and firmly bound by all his acts as such 
 agent or attorney-in-fact," etc. So far as tliis deed goes, it can 
 only be regarded as a settlement or adjustment of accounts 
 between principal and agent, and does not contain a single 
 word with regard to any acts of Schoolcraft, other than those 
 done by authority of the power of attorney of July 28, 1849, 
 to which reference is made. 
 
IN AGENCY. 69 
 
 It is a well-settled rule that a principal who ratifies the acts 
 ■of his agent must be made acquainted with the character of 
 those acts, and unless all the circumstances are made known 
 to him, the ratification is void. 
 
 In the present case, it does not appear from the deed that 
 Sutter knew that Schoolcraft had exceeded his authority by 
 selling real estate; neither is the fact established by evidence 
 ■aliunde. Whether parol evidence is admissible to establish 
 this fact, is a question which we do not propose to examine in 
 this case, as there was no attempt to introduce it on the trial, 
 and as the question is of much importance to those claiming 
 under similar titles, it is deemed advisable to withhold any 
 ■expression of opinion until the point is directly presented. 
 
 In addition to this, another question of no little difficulty 
 may suggest itself, viz. : Whether the deed to Schoolcraft, 
 treating it as a confirmation, would inure to the benefit of 
 those who had purchased from, him, or whether a deed direct 
 from Sutter to them would not be necessary. 
 
 As this case now stands before the Court, the plaintiffs cannot 
 recover. The power of attorney contains no authority to sell 
 land ; the deed of ratification does not show upon its face, that 
 ■Sutter knew how, or to what extent, the authority had been 
 -exceeded, and this fact is not established by any evidence 
 whatever; neither was Sutter bound to take notice of the 
 Tecorded conveyances by his attorney ; first, because many of 
 these records imported no notice, and second, because not 
 having given authority to sell, it was not reasonable to sup- 
 pose his agent would transcend that authority. 
 
 Judgment reversed, and cause remanded. 
 
 Whitney v. Martine, 88 N. Y. 535; Ritch v. Smith, 82 N. Y. 627; Smith v. 
 Tracy, 36 N. Y. 78 ; Friesenhahn v. Buahnell, 47 Minn. ■MS ; Mechem, 128, 
 129; Story, 239, note. 
 
70 ILLUSTRATIVE CASES 
 
 Must Ratify All. 
 
 The act must have been done in the principal's behalf, and he must 
 ratify all or none. 
 
 Hamlin v. Sears. 
 
 New York Court of Appeals, 1880. 
 
 82 N. Y. 327. 
 
 Earl, J. This action was brought for the conversion by the 
 defendants of a quantity of barley which, at the time, belonged 
 to Daniel Stanley, the assignor of the plaintiff. The defend- 
 ants, in their answer, admit that Stanley owned the barley, but 
 allege that they purchased it of Charles H. Marsh, who had full 
 J)ower and authority to sell it. 
 
 Upon the issue thus made, the referee found against the 
 defendants. The General Term did not disturb the findings 
 of facts ; and we are, therefore, only to inquire whether the 
 referee erred as to the law applicable to the facts found, or to 
 such facts as ought to have been found upon undisputed evi- 
 dence. 
 
 The facts show that the barley was, in the winter of 1872 
 and 1873, in a warehouse owned by Marsh, at Avon, and that 
 he took the barley without the knowledge, authority, or consent 
 of Stanley, and shipped it in - his own name and on his own 
 account to the defendants at Buffalo, to whom he sold it in his. 
 own name. He did not assume to act as agent for Stanley, 
 and the defendants did not deal with him as such agent, and 
 Stanley had never clothed him with any apparent authority as 
 his agent to sell this barley, and had never held him out as- 
 such. 
 
 But upon facts now to be stated, it is claimed by the learned 
 counsel for the defendants, and the General Term has held, 
 that Stanley ratified the sale made by Marsh, and hence, be- 
 came bound thereby. The first car-load of the barley was 
 shipped to the defendants December 31, 1872, and the last car- 
 load March 7, 1873. In the latter month, Stanley discovered 
 that a large portion of his barley had been taken away ; and 
 
IN AGENCY. 71 
 
 he made inquiry of Marsh about it and was informed by him 
 that it was in a malt-house in the same village, and he was 
 thus induced to rest easy about it until July, when, by exam- 
 ination at the railroad ofSce, he, for the first time, discovered 
 that it had been shipped to Buffalo. This was about five 
 months after the last barley had been shipped. It does 
 not appear that Stanley thereafter, prior to May, 1874, made 
 any eff'orts to follow or reclaim the barley, and in that mouth 
 he made a general assignment to the plaintiff for the benefit 
 of his creditors. This claim against the defendant was not in- 
 serted in the schedule of Stanley's assets made after the 
 assignment, but he testified that he thought he mentioned it 
 to his attorney at the time the schedule was made. The 
 plaintiff testified that he did not hear of this claim until some 
 time after the assignment was made, and that he first called 
 upon the defendants and made claim upon them for the barley 
 in January, 1875, and that was the first time that they learned 
 of the claim that the barley belonged to Stanley and was 
 wrongfully taken and sold to them. 
 
 Upon these facts the alleged ratification is claimed to 
 be made out. The counsel for defendants requested the 
 referee to find, as matters of fact, " that Stanley ascertained, 
 as early as July 21, 1873, that all of said barley had been 
 shipped to defendants at Buffalo, N. Y., and by and on 
 account of said Charles H. Marsh ;" and that " Stanley at no 
 time thereafter ever notified defendants, or either of them, 
 of any want of authority on the part of said Marsh to sell said 
 barley, or to ship it in the form in which it was shipped, or to 
 receive payment therefor ;" and he refused so to find. And he 
 requested the referee to find, as a conclusion of law, " that such 
 action of said Stanley, with knowledge of the facts as aforesaid, 
 amounted in law to an acknowledgment and ratification of the 
 authority of said Marsh, as the agent of said Stanley in 
 making such sales and shipments of barley and receiving 
 payment therefor, and render such transactions on the part of 
 said Marsh in the premises of binding force and effect upon 
 said Stanley and upon his assignee, the plaintiff;" and he 
 
72 -ILLUSTRATIVE CASES 
 
 refused so to find and decide. The counsel for defendants 
 bases his contention here upon such requests and refusals. 
 
 The general doctrine that one may, by affirmative acts, and 
 even by silence, ratify the acts of another who has assumed to 
 act as his agent, is not disputed. It is illustrated by many 
 cases to be found in the books, and set forth by all the text 
 writers upon the law of agency : Story on Agency, § 251 a ; 
 2 Greenl. on Ev., §§ 66, 67 ; 2 Kent's Com. 616 ; Thompson 
 V. Craig, 16 Abb. [N. S.] 29 ; Wilson v. Tumman, 6 Mann. & 
 Gr. 236 ; Watson v. Swann, 11 C. B. [N. S.] 756. But the 
 doctrine properly applies only to cases where one has assumed 
 to act as agent for another, and then a subsequent ratification 
 is equivalent to an original authority. 'One may wrongfully 
 take the property of another not assuming to act as agent, and 
 sell it in his own name and on his own account, and in such 
 case there is no question of agency, and there is nothing to 
 ratify. The owner may subsequently confirm the sale, but 
 this he cannot do by a simple ratification. His confirmation 
 must rest upon some consideration upholding the confirma- 
 tion, or upon an estoppel: Workman v. Wright, 36 Ohio St. 
 405. 
 
 Here Stanley did no act, and said no word ratifying the sale 
 of his barley. The most that can be claimed is that after he 
 discovered that the barley had been shipped to the defendants 
 he made no efforts to reclaim it, and gave no notice of his title 
 to the defendants. No estoppel can be claimed, as the defend- 
 ants did not rely upon Stanley's silence, and were not, so far as 
 appears, damaged thereby. So that it comes down to this : 
 When the property of one man is wrongfully taken and sold 
 by another, in his own name and for his own benefit, must the 
 owner, when he afterward discovers the wrong, make efforts to 
 reclaim his property, or notify the purchasers of his claim at 
 the risk of losing his property ? There is no authority holding 
 that such a duty rests upon the owner of property wrongfully 
 taken and converted. The mere silence of the owner, under 
 such circumstances, will not bar his claim, if it be short of 
 the time prescribed in the statute of limitations. The rule of 
 
IN AGENCY. 73 
 
 caveat emptor applies, and the purchaser must see to it that he 
 buys of one who owns the property or has authority to sell. 
 
 We have carefully examined all the authorities cited by the 
 learned counsel for the defendants, and it is sufficient to say 
 of them, that they in no degree sustain the novel doctrine con- 
 tended for by him. The maxim that " he who has been silent 
 when in conscience he ought to have spoken shall be debarred 
 from speaking when conscience requires him to be silent," can- 
 not be invoked in this case. It would have been applicable if 
 Stanley had stood by and in silence permitted Marsh to deal 
 in or sell his property, or if hearing that he had taken his 
 propertj', he had in silence seen the defendant pay him for 
 the property. When he first heard of this wrong, the property 
 had been taken and paid for, and the time when conscience 
 required him to speak was passed. His silence induced no act 
 and did no wrong. 
 
 The plaintiff, as a witness on his own behalf, was asked this 
 question : " What was the market value of barley in Avon in 
 March, 1873 ?" To this defendants' counsel objected that the 
 witness was not shown to be competent to speak as to the value 
 of the barley in suit, and that his evidence should be confined 
 to that barley. The objection was overruled and the witness 
 was allowed to answer. Barley is a well-known commodity, 
 and has a market price, and one who knows it can testify to it. 
 The general market price of barley was one of the elements from 
 which the referee, with other evidence, could arrive at the value 
 of the barley in suit. There was, therefore, no error in receiv- 
 ing the evidence. 
 
 The learned counsel for the defendants requested us, in case we 
 reached a conclusion upon the law different from that reached 
 by the Court below, that we should suspend our decision and 
 give him an opportunity to apply to that Court for an order 
 showing a reversal of the judgment of the referee upon the facts 
 as well as the law. This request we cannot grant. That Court 
 filed its decision nearly two years ago. The appeal to this Court 
 was taken more than one year ago, and to grant the request 
 now, after the case had been argued, submitted to us, and a 
 
74 ILLUSTRATIVE CASES 
 
 conclusion reached thereon, would not be just to the plaintiff. 
 There is no suggestion that the Court below actually reversed 
 the judgment upon questions of fact, and the opinion there 
 pronounced shows that the reversal was upon the law of the 
 case. It certainly would not be proper, after the appeal has 
 been taken to this Court, to allow a new decision to be made 
 by that Court to defeat such appeal. If, however, that Court 
 actually did reverse the judgment upon the facts as well as the 
 law, the defendants should, before the argument and submis- 
 sion of the case, and with proper diligence, have taken pro- 
 ceedings to have the order there made so amended as to 
 express the truth. It is too late now. To hold otherwise 
 would be setting a precedent which would lead to great em- 
 barrassment in our practice and injustice to parties. 
 
 We conclude, therefore, that the order of the General Term 
 should be reversed and the judgment upon report of referee 
 affirmed, with costs. 
 
 Order reversed and judgment affirmed. 
 
 Mitchell V. Minnesota Fire Aas'n, 48 Minn. 278 ; Knappen v. Freeman, 47 
 Minn. 491 ; Fowler v. New York Exchange, 67 N. Y. 138 ; Story, 251 a ; Me- 
 chem, 130 ; Humphrey v. Havens, 12 Minn. 298. 
 
 4 
 
 Express Ratification. 
 
 The act of ratification must be of the same nature as is required for 
 conferring the authority ; hence when sealed authority is indispen- 
 sable sealed ratification is required, or if written authority is required 
 written ratification must appear. 
 
 Spopford v. Hobbs. 
 
 Supreme Judicial Court of Maine, 1848. 
 
 29 Me. 148. 
 
 Tenkey, J. The deed containing the covenants alleged to 
 
 have been broken purports to have been executed by Samuel 
 
 Lowder as the attorney of Benjamin Bussey. The authority 
 
 of the attorney to execute the deed was denied, on the ground 
 
IN AGENCY. 75 
 
 that the deed was for a purpose not contemplated by the parties 
 to the letter of attorney. The power gives authority to the 
 attorney " in my name and behalf, to bargain and sell to any 
 person or persons, for the purpose of making actual settlements 
 thereon, any lots or tracts of land, not exceeding five hundred 
 acres ;" " and in my name and behalf to sign, seal, and deliver 
 as my deed legal and sufficient deed and deeds, containing the 
 several covenants and a general warranty to convey to such 
 purchaser or purchasers, or their heirs or assigns, such lot or 
 tract of land in fee simple ;" " hereby ratifying and confirming 
 all and whatsoever my said attorney shall lawfully do in and 
 about the premises." There was evidence by parol, from wit- 
 nesses introduced by the plaintiff, that the contract for the 
 purchase of a tract of land embracing that described in the 
 deed introduced was made by the purchasers with Bussey him- 
 self, who gave verbal directions to the attorney to make the 
 conveyance, and that upon its being made accordingly, notes 
 were taken for the consideration, secured by a mortgage of the 
 same land, which mortgage was subsequently discharged, Bus- 
 sey himself having received the money which was paid upon 
 the notes, and given his receipt therefor on the books of the 
 agency ; that the purchase was made for speculation, and not 
 for settlement. The Court who tried the case " ruled, that the 
 action was not maintainable, that Lowder had no authority by 
 the power produced to execute the deed, and that there was 
 no evidence from which a ratification could be legally inferred, 
 so as to make the deed obligatory on Bussey ;" to which rul- 
 ings exceptions were taken. 
 
 The verbal directions from Bussey to Lowder could confer 
 no power upon the latter to make the conveyance in the name 
 of the former ; and they were equally impotent to increase the 
 authority contained in the power of attorney. 
 
 It is insisted that there was a subsequent ratification of the 
 act of Lowder in giving the deed by Bussey, which has given 
 to it full and complete effect A ratification cannot stand on 
 higher ground than an original authority, and must be by an 
 instrument under seal : Story's Agency, §§ 49 and 242. 
 
76 ILLUSTRATIVE CASES 
 
 The mortgage is relied upon as a ratification on the ground 
 of estoppel. And if there is anything therein which can es- 
 top the mortgagee on legal principles from denying the con- 
 veyance of the land, the ruling of the Court was erroneous. 
 
 " Every estoppel, because it concludeth a man to allege the 
 truth, must be certain to every intent, and not be taken by 
 argument or inference. Every estoppel ought to be a precise 
 affirmation of that which maketh the estoppel, and not be 
 spoken impersonally:" Co. Litt. 352, b. In Bowman v. 
 Taylor, 2 Ad. &' EUis, 278, Lord Denman says: "The doc- 
 trine of estoppel has been guarded with great strictness, not 
 because the party enforcing it necessarily wishes to exclude 
 the truth, for it is rather to be supposed that that is true which 
 the opposite party has already recited under his hand and 
 seal ; but because the estoppel may exclude the truth. How- 
 ever, it is right that the construction of that which is to create 
 the estoppel should be very strict." 
 
 The mortgage deed and the notes referred to therein are all 
 to be regarded as parts of the same mortgage. But neither 
 the deed nor the notes contain any recital of that which was 
 the consideration of the notes, or that the land described in the 
 mortgage was conveyed by the mortgagee to the plaintiffs. 
 There is no certain, direct, and precise affirmation of facts 
 which are absolutely inconsistent with the fact that Lowder 
 had not legal power to execute the deed in the name of Bussey. 
 For aught which appears in the mortgage deed or the notes, 
 the latter may have been given for a consideration wholly dis- 
 tinct from the conveyance of the land, and the former may 
 have been of premises to the title of which previously the 
 mortgager was always a stranger. 
 
 The design of Bussey to convey his land only to actual 
 settlers is clearly exhibited by the power of attorney. But 
 where proper proof, satisfactory to the one who was to judge 
 of the intention of the purchasers in that particular, was 
 afforded, it is equally clear that the conveyance was to be con- 
 clusive. This is manifest frofti tlie language of the instrument, 
 as the deeds were to pass a fee simple estate with all the cov- 
 
IN AGENCY. 77 
 
 enants usually contained in warranty deeds, without a provision 
 that they should contain anything making them void in any 
 contingency. If he had chosen to have made all conveyances 
 himself without the intervention of an agent, adhering to his 
 intention of giving deeds of land for actual settlement only, 
 his unconditional deeds to such as satisfied him that they took 
 them for that purpose would pass the title, though it should 
 afterward turn out that he was grossly deceived, the purchases 
 having been actually made with a different design. His inten- 
 tion, well understood by his grantees, and their deception in 
 that particular, would not affect the deeds. He having under- 
 taken to judge of the evidence of their purpose, and having 
 acted upon the judgment formed in making the conveyances, 
 he would be concluded. When he delegated the power to 
 make conveyances to an attorney, with the restriction contained 
 in the instrument in which he engages to ratify and confirm 
 his legal acts, is it to be supposed that he did not mean to in- 
 trust to his judgment and discretion the evidence of the inten- 
 tion of those who proposed to be purchasers, and that he should 
 exercise them in the same manner that the constituent would 
 have exercised his own judgment and discretion if he had 
 acted in the premises ? The intention of purchasers, in order 
 to have effect, must have been judged of and determined by 
 some one. No provision having been made for another 
 mode in which the purpose of the purchasers could be 
 ascertained previous to the conveyances, the power to per- 
 form that duty must have been intended/ to be conferred upon 
 the attorney. It is manifestly designed that, upon his being 
 satisfied of this intention in the purchasers, payment being 
 provided for, deeds absolute in their terms and passing a fee 
 simple estate should be executed and delivered by him in the 
 name of Bussey. This would preclude the owner from oppor- 
 tunity to revise the judgment of the agent before the title 
 would vest in the grantees. 
 
 If the deeds themselves contained recital of the fact that 
 the purchases were made with the design in the grantees that 
 actual settlement on the land conveyed should be made, this 
 
78 ILLUSTRATIVE CASES 
 
 fact could not be contradicted by parol, inasmuch as the owner 
 had not retained to himself, after the delivery of the deeds, 
 the power to reconsider this question of intention in the pur- 
 chasers. No more could he claim the right that the jury 
 should judge of acts of the agent, which he had made conclu- 
 sive upon himself. • 
 
 The letter of attorney is to be considered in connection with 
 the deeds given by the agent, and as making a part of them ; 
 it follows that, when such deeds have been delivered, the 
 attorney had determined that the purchases were made for the 
 object contemplated as much as if the deeds had contained 
 the express statement thereof. The proof of this is under 
 seal, making part of the deeds themselves. It cannot be ad- 
 mitted, Bussey having acted through the judgment of another 
 with full powers for the purpose, by deeds in all respects like 
 those he would have given, that the title should remain in un- 
 certainty ; that the tenure, by which the immediate and subse- 
 quent grantees should hold after a quiet possession for a longer 
 or a shorter period, should depend, not upon the intention of 
 the purchasers found by the one empowered to judge thereof, 
 whose judgment is evidenced by the deeds themselves, but 
 upon the finding of a jury on an issue to be settled by parol 
 evidence of the most uncertain, equivocal, and varying charac- 
 ter, liable peculiarly to be changed almost daily by the frailty 
 of human memory, death of witnesses, and the sinister designs 
 of parties and their agents. The title cannot be thus im- 
 peached by the former owner or his representatives by proof 
 that the object was different. It is not pretended in this case 
 that fraud was practised by the agent and the grantees to the 
 injury of Bussey, and it could not be so pretended, for the 
 evidence was plenary that the contract of sale was made by 
 Bussey himself, and that he gave verbal orders to the attorney 
 to execute and deliver the deed in the name of the owner ; and 
 such evidence is admissible on the question of fraud. 
 
 The evidence' that the plaintiffs did not intend the land for 
 settlement, but for speculation, and that it was so understood 
 by the attorney at the time of the execution and delivery of 
 
IN AGENCY. 79 
 
 the deed, came from the plaintiff's witnesses; whether in the 
 direct or the cross-examination does not appear from the case. 
 It is difficult to perceive that the plaintiffs could expect any 
 benefit from this proof; and it was not admissible for the defend- 
 ants ; and it was probably voluntarily stated by the witnesses, 
 or called out on cross-examination, when no objection was in- 
 terposed. We are by no means prepared to say that, if adduced 
 by the plaintiffs by direct inquiry of the witnesses, it could 
 affect the deed of conveyance, but of this we give no opinion. 
 It does not appear that the ruling of the Judge, "that the 
 power gave no authority to execute the deed," was upon the 
 ground that proof of the design of the plaintiffs when they 
 made the purchase came from them. The ruling was founded 
 upon no such distinction, and we think it was erroneous. 
 Exceptions sustained. 
 
 Despatch Line v. Bellamy, 12 N. H. 205 ; Hawkins v. McGroarty, 110 Mo. 
 546 ; Story, 242, note ; Mechem, 136, 138 ; Judd v. Arnold, 31 Minn. 430. 
 
 Exception — Partners. — One partner may orally ratify an instrument under, 
 seal when such instrument has heen executed hy his copartners while acting 
 within the scope of the partnership business : Mechem, 138 ; Peine v. Weber, 
 47 111. 41. 
 
 Implied Ratification. 
 
 An agent's act may be ratified by silence or by any conduct from 
 'Which an intent to ratify a contract may be inferred. 
 
 Hall v. Harper. 
 
 Supreme Court of Illinois, 1855. 
 
 17 111. 82. 
 
 Caton, J. This was an action of replevin for a horse. The 
 bill of exceptions shows that in the spring of 1852, a son of 
 the plaintiff, about eighteen years of age, and who resided with 
 him, exchanged the horse in question, which belonged to the 
 
80 ILLUSTRATIVE CASES 
 
 plaintiff, with the defendant, for another horse. A few days 
 before the exchange the plaintiff forbid his son to exchange 
 the horse. After the exchange the son took the horse home 
 to the plaintiff The agreement to exchange was made on 
 Saturday, and the exchange was made several days after. The 
 sou told his father, on the Saturday, the agreement which he 
 had made to exchange, and it does not appear that the plaintiff 
 expressly approved of or forbid the exchange. The witness 
 does not seem to remember what his father said about it, only 
 he says he knows his father did not tell him to make the ex- 
 change. Nor does it appear, from the son's testimony, that his 
 father made any objections when he brought the horse home 
 which he got of the defendant. The plaintiff was afterward 
 seen riding the horse. A few days after the exchange, the 
 plaintiff told the witness, Snyder, that if the horse which his 
 son had swapped with the defendant for, " lived and lucked 
 well, he would make a horse that would sell for more than the 
 one his son had swapped to defendant." The parties lived 
 about two miles apart, and met several times ; and on one oc- 
 casion the defendant rode the horse in controversy to the plain- 
 tiff's house, but nothing was said between them about the ex- 
 change of horses which had been made. Two or three weeks 
 after the exchange had been made, the plaintiff was taken sick 
 and remained ill till about the time this suit was commenced. 
 After the exchange the son took the horse home to his father's, 
 where he remained two or three months ; at the expiration of 
 which time the plaintiff took the horse back to the defendant 
 and offered to return him, and demanded of the defendant 
 the horse which his son had let him have. The defendant re- 
 fused to return him, whereupon this suit was brought. 
 
 From this evidence the jury was well warranted in finding 
 that the plaintiff had acquiesced in and approved of the ex- 
 change of horses which had been made by his son, and thus 
 adopted that act as his own. He did not repudiate the bar- 
 gain which his son had made for the exchange when he was 
 advised of it before the exchange was actually made, but pas- 
 sively allowed the executory bargain to be executed ; and when 
 
IN AGENCY. 81 
 
 his son brought the horse home he made no objections to the 
 exchange, but retained and used the horse obtained of the de- 
 fendant. He still forbore to remonstrate when he met the 
 defendant several times subsequently, and even when the de- 
 fendant rode the horse, which he had obtained of his son, to 
 his house. It is plainly inferable, from the evidence, that he 
 retained and treated the horse as his own for about three 
 months, without a word of dissatisfaction or disapproval. An 
 old and just legal maxim may well be applied to the plaintiff 
 here, which says, if he keep silent when duty requires him to 
 s-peak, he shall not be allowed to speak when duty requires him 
 to keep silence. His continued silence and long apparent ac- 
 quiescence in the act of his son, well justified the defendant in 
 supposing that it met with his entire approval. He cannot be 
 allowed to lay by and speculate on the chances of a good or a 
 bad bargain, or upon the chances of the horse, procured of the 
 defendant, turning out good or bad ; or, to use his own ex- 
 pression, ".lucking well." If he intended to repudiate the 
 action of his son, he should have done so promptly, so that 
 the defendant might know what he had to rely upon. 
 
 We think a different verdict would not have been justified 
 by the evidence, and the judgment must be affirmed. 
 
 Judgment affirmed. 
 
 Ehrmanntraut v. Eobinaon, 52 Minn. 333 ; Columbia Mill Co. v. National 
 Bank of Commerce, 52 Minn. 224 ; Saveland v. Green, 40 Wis. 431 ; Foster v. 
 Eockwell, 104 Mass. 167; Story, 90, 255, 259; Mechem, 146, 165; Stearns t). 
 Johnson, 19 Minn. 540. 
 
 Appropriating the proceeds of an act ratifies it : Lyman v. University, 28 
 Vt. 560. 
 
82 ILLUSTRATIVE CASES 
 
 6 
 
 Effect op Ratification. 
 
 Ratification equals prior authority and is retroactive, making the 
 contract good from the beginning. 
 
 Williams v. Butlek. 
 Supreme Court of Illinois, 1864. 
 35 111. 544. 
 Breese, J. Strong Wadsworth and James Wadsworth, 
 in the year 1867, failed in business in Chicago, having 
 been partners in banking. They were indebted to Williams, 
 the appellant, about $8,000. In February, 1861, Strong 
 Wadsworth and one John C. Ambler entered into an 
 arrangement by which the latter furnished to the former 
 the sum of |1,580, belonging to his mother, Mercy Ambler, 
 residing in Massachusetts, and Wadsworth recommenced 
 the banking business in Chicago, under the name of 
 S. Wadsworth & Co. A written contract was entered 
 into between Ambler, acting as agent for his mother, 
 and Wadsworth, by which Wadsworth was to attend 
 to the business on a salary of flO per week, and to 
 have an interest therein beyond his wages, the profits and 
 losses to accrue to Mercy Ambler. When, however, they made 
 the first settlement the profits were found to be larger than 
 had been anticipated, and Ambler allowed to Wadsworth one- 
 half the profits instead of the salary, and the business con- 
 tinued, afterward, upon the basis of a partnership between 
 Wadsworth and Mrs. Ambler. The entire capital was fur- 
 nished by Mrs. Ambler. It appears that John C. Ambler was 
 acting as manager of his mother's affairs, and that she was, to 
 some extent, dependent on him for support, although she had 
 some small means which he invested and controlled for her 
 benefit, and which he sought to keep distinct from his own 
 funds. This arrangement with Wadsworth was made without 
 her knowledge, and she knew nothing of it until the occur- 
 rence of the events which led to this suii. In making the 
 
IN AGENCY. 83 
 
 arrangement John C. Ambler was merely acting under his 
 power as general agent. 
 
 In December, 1862, appellant commenced suit against 
 Strong Wadsworth and James Wadsworth, on his old claim 
 against them, and in March, 1863, recovered a judgment 
 against Strong Wadsworth (James not having been served) 
 for over $9,000. An execution was immediately issued, and 
 levied upon the furniture and money found in the office of S. 
 "Wadsworth & Co. The money levied on, amounting to over 
 ^6,000, was paid over by the sheriff to appellant, the plaintiff in 
 the execution. Immediately after the levy judgments were con- 
 fessed by Strong Wadsworth and Mercy Ambler as follows : One 
 in favor of Rutter et al. for $3,003.75, one in favor of Tyler 
 et al. for $1,866.90, and one in favor of Marshall et al. for 
 $1,600, and after an ineffectual attempt to recover by 
 writ of replevin the property levied on Rutter et al. filed a 
 bill in behalf of themselves and the other creditors of S. Wads- 
 worth & Co., praying that the property levied on be decreed to 
 be the partnership property of Strong Wadsworth and Mercy 
 Ambler, and, as such, marshaled in payment of their credit- 
 ors, to the exclusion of the individual creditors of Wads- 
 worth. Appellants Wadsworth, Mercy Ambler, and the 
 sheriff were made defendants to this bill. Williams and the 
 sheriff answered, denying the alleged partnership between 
 Wadsworth and Mrs. Ambler, the oath to their answer having 
 been waived. Mrs. Ambler answered, admitting the alleged 
 partnership, and she also filed a cross-bill setting up the 
 partnership, and praying that the partnership assets might be 
 applied in payment of partnership debts. On the final hear- 
 ing the Court below so decreed, and Williams brings the 
 record to this Court. It should be further stated that Strong 
 Wadsworth and Mrs. Ambler are admitted to be insolvent, 
 and that the former had drawn all the profits due to him from 
 the business. 
 
 It is apparent, from this statement of the facts, that the de- 
 cision of this case depends upon the effect to be given to the 
 answer and cross-bfll of Mrs. Ambler, by which she ratifies 
 
84 ILLUSTRATIVE CASES 
 
 the act of her agent in making the partnership arrangement 
 with Wadsworth. It is denied, however, in the first instance, 
 by the counsel of appellant, that she has legally ratified, 
 there being no proof of authority from her to her attorneys 
 to file the answer or cross-bill, and no proof of her signature 
 to these pleadings which are signed by her in her own proper 
 name. 
 
 It is sufficient to say in regard to this, that, in the absence 
 of proof to the contrary, the authority of an attorney of this 
 Court to appear and plead for such parties as he claims to 
 represent, is presumed. If the appellants desired to raise this 
 question in the Court below, or to impeach the genuineness of 
 Mrs. Ambler's own signature to the answer and cross-bill, they 
 should have filed an affidavit and asked for the proper rule. 
 Not having done this they cannot now deny the authority of 
 Mrs. Ambler's counsel to file such answer and cross-bill as they 
 thought proper. 
 
 The other question is more difficult, but we have arrived at 
 the conclusion, that the ratification of Mrs. Ambler makes the 
 arrangement between her son and Wadsworth good from the 
 beginning. So far as appears, he had no authority to create 
 a partnership between her and another person, but if an agent 
 assumes to do an act of this sort it may, like any other act of 
 an agent not unlawful, be ratified by the principal, and the 
 ratification relates' back to the performance of the act. It is 
 urged, however, that a ratification cannot relate back so as to 
 cut off the intervening rights of third persons. That is doubt- 
 less true as a general rule, but if the doctrine of relation is 
 applied merely for the protection of a clearly superior equity, 
 such application would be consistent with recognized legal 
 principles, even though it interferes with the claims of third 
 persons resting upon an inferior equity. We consider the case 
 before us one of that character. The debt of Williams ac- 
 crued long before John C. Ambler undertook to create a 
 partnership between his mother and Wadsworth. The credit 
 upon which it accrued did not spring from any control which 
 the latter acquired over the property of Mrs. Ambler. So far 
 
IN AGENCY. 85 
 
 as she and her property are concerned, the contracting of the 
 debt had no connection with them. WiUiams, as a creditor 
 of Wadsworth, was placed in no worse position in conse- 
 quence of the acts of Mrs. Ambler's agent in forming the 
 partnership, whether such acts were authorized by the prin- 
 cipal or not. But how was it with the complainants, the 
 creditors of the firm ? 
 
 Their debts arose in consequence of money paid by them to 
 S. Wadsworth & Co., for bills of exchange on New York, on 
 the same day with the levy by the sheriff, and the identical 
 money paid by them was part of that seized under the levy. 
 Mrs. Ambler, by giving to Wadsworth the control of her 
 small capital, through her agent, had enabled him to start 
 the business of S. Wadsworth & Co., and procure credit, by 
 selling drafts to these complainants and the other creditors. 
 Although Mrs. Ambler was under no legal obligation to ratify 
 "these proceedings of her agent when they came to her knowl- 
 edge, yet she was under a certain moral obligation to protect, 
 to the extent of her power, those innocent creditors who had 
 become such through means furnished by her and through 
 the acts of her general agent. She recognizes this duty, and 
 by ratifying the act of her agent has made herself person- 
 ally liable, as a partner iia the firm of S. Wadsworth & Co., 
 for the debts of the firm, and is now liable to be sued there- 
 for : Wright v. Boynton & Hayward, 37 N. H. 9. These are 
 debts which would have had no existence but for the acts 
 of her agent in dealing with her property and connecting her 
 in a partnership arrangement with Wadsworth. If she is now 
 "willing to ratify this arrangement and assume all the liabili- 
 ties of the firm of S. Wadsworth & Co., ab initio, as she does 
 by ratifying, is it not manifestlj"^ just that the other incidents 
 of partnership should follow, and the partnership assets be 
 first applied to the payment of the partnership debts ? Is it 
 not plain that the equity of the creditors of S. Wadsworth 
 •& Co., as against the assets of the business done under that 
 name, and as against the capital furnished by Mrs. Ambler, 
 is superior to that of individual creditors of Wadsworth 
 
86 ILLUSTRATIVE CASES 
 
 whose debts were contracted long before this business was 
 commenced? If Mrs. Ambler is willing to ratify the acts 
 of her agent, are not their equities, as against Williams, pre- 
 cisely what ihey would have been if he had had full 
 authority to do what he did ? We think so, and it follows 
 that the lien of Williams's execution must be treated, in a 
 Court of Equity, as only attaching to whatever interest Wads- 
 worth had in the assets of the firm, after the payment of the 
 firm debts. 
 
 The decree of the Superior Court must be afiirmed. 
 
 Decree affirmed. 
 
 Lowry v. Harris, 12 Minn. 255 ; Bishop Con. 849, 1108 ; Mechem, 167 ; 
 Story, 243, 244, note ; Stewart v. Mather, 32 Wis. 344 ; Nesbitt v. Helser, 4» 
 Mo. 383 ; Woodbury v. Lamed, 5 Minn. 339. 
 
 Eatiflcation of a tort does not absolve the agent : Wright v. Eaton, 7 Wis. 
 595. 
 
IN AGENCY. 87 
 
 II 
 
 OF AUTHOEITY. 
 
 A 
 IN GENEEAL. 
 
 1 
 
 Defined. 
 
 Authority, power to act for another, is conferred only by the will 
 of the principal expressed or implied. 
 
 Graves v. Horton. 
 Supreme Court of Minnesota, 1887. 
 
 38 Minn. 66. 
 
 (Reported ante, p. 42 ) 
 
 Johnson v. Hurley, 115 Mo. 513 ; Story, 3 ; Pole v. Leask, 33 L. J. E. Eq. 
 155. 
 
 2 
 Must be Proved in Order to Charge Principal. 
 
 One seeking to charge the principal must prove the agent's au- 
 thority. 
 
 Kornemann v. Monaghan. 
 
 Supreme Court of Michigan, 1871. 
 
 24 Mich. 36. 
 
 Campbell, C. J. Plaintiffs forwarded a bill of goods to de- 
 fendant, ordered by the latter from one Pearl, who did not 
 mention to whom he intended to send the order. The goods 
 were sent to defendant directly, accompanied by a bill in the 
 name of the plaintiffs. A letter, sent at the same time direct- 
 ing the price to be remitted, is sworn not to have been received. 
 
88 ILLUSTRATIVE CASES 
 
 Defendant gave evidence that after receiving the bill he paid 
 the price to Pearl, but not till he had asked him if he had 
 authority to receive it. There had never been any dealings 
 between plaintiffs and defendant, but defendant had previously 
 dealt with Pearl in agencies for other houses, and had paid 
 him money. Pearl disappeared without paying over the 
 money. The Court charged that plaintiffs, by sending the 
 goods on Pearl's order, authorized defendant to assume he was 
 empowered to receive payment. 
 
 There had been no dealings whatever between defendant 
 and plaintiffs whereby defendant could have been enabled to 
 know anything about Pearl's authority. An agent may have 
 as much or as little power as his principals see fit to give him. 
 The evidence here showed no agency whatever whereby he 
 could lawfully bind them to anything. In the absence of 
 actual authority the plaintiffs could only be held on the 
 ground that by their action they had induced defendant to 
 believe Pearl had full authority to receive money for theni. 
 If they had sanctioned such conduct before, that might tend ■ 
 to support the claim. But plaintiffs and defendant had never 
 known each other in business before. The goods were not even 
 sent to Pearl for delivery, but were sent direct to the purchaser 
 from the sellers. There was nothing therefore to exonerate the 
 purchaser from ascertaining the agent's powers. This he seems 
 to have supposed he was bound to do, but instead of inquiring 
 of the principals he inquired only of Pearl himself. He had 
 no right to act on anything that did not proceed, from the 
 plaintiffs, either as actual authority or in some form of bind- 
 ing admission. There was no proof whatever of either of these 
 essentials, and the payment, therefore, was entirely unauthor- 
 ized, and in no way bound plaintiffs. 
 
 The judgment was erroneous, and must be reversed with 
 costs, and a new trial granted. 
 
 Newman v. Ins. Co., 17 Minn. 123 ; Brayley v. Kelly, 25 Minn. 160 ; John- 
 son V. Hurley, 115 Mo. 513 ; Dayton v. Buford, 18 Minn. 126 ; Loudon Society 
 V. Hagerstown Bank, 36 Pa. St. 498 ; Mechem, 273 ; Whiteside v. U. S., 93 U.S. 
 247 ; Peabody v. Hoard, 46 111. 242 ; Emerson v. Providence, 12 Mass. 287. 
 
IN AGENCY. 89 
 
 3 
 
 Expressed Authority. 
 
 Persons knowingly dealing with an agent whose authority is in 
 express terms must take notice of the nature and extent of the 
 authority. 
 
 Peabody v. Hoard. 
 
 Supreme Court of Illinois, 1867. 
 
 46 111. 242. 
 
 Walker, J. This was a bill in chancery, filed by Francis 
 B. Peabody, in the Superior Court of Chicago, against Samuel 
 Hoard and Henry F. Balch, to enjoin Hoard from |)rosecut- 
 ing an action of ejectment which he had commenced in that 
 Court against the tenant of appellant, for the recovery of eighty 
 acres of land. It appears from the record that Henry F. 
 Balch, prior to the 24th day of August, 1853, owned the land 
 in controversy. That he being in immediate need of money, 
 and residing in Salem, Massachusetts, on the 14th day of 
 March (the year is not given), wrote a letter to his brother, 
 Moses P. Balch, in which he authorized him to sell the land. 
 He directed him to sell it, if he could get $225 for the prairie, 
 and $25 for the timber land ; and all over that price he author- 
 ized him to retain for his trouble. He says : " I shall want all 
 the money I can scrape together to pay my way through." 
 From other evidence in the case it seems that this letter was 
 written in March, 1851. 
 
 It further appears that Moses owned an adjoining eighty- 
 acre tract which he had bought of one Hall, and was paying 
 him five per cent, per month as interest on $300 of the pur- 
 chase-money. He was anxious to get rid of this debt, and 
 offered to sell his own eighty-acre tract to one Smith, but he 
 would not purchase without he could at the same time obtain 
 the eighty acres belonging to Henry F. Balch. A sale was, 
 however, finally made by Moses to Smith of both eighties, and 
 it was so arranged that Smith paid Hall the $300 debt, with 
 interest already accrued. This payment was thus made, and 
 the $300 incumbrance to Hall removed from Moses' eighty 
 
90 ILLUSTRATIVE CASES 
 
 acres, and the balance of $750 was paid to Moses in jewelry. 
 Hall conveyed the eighty acres belonging to Moses, for which 
 he held the legal title, to Smith, and Moses, as the attorney in 
 fact of Henry F. Balch, conveyed to him Henry's eighty acres. 
 
 It appears that Moses lived upon his and that Henry's was 
 unimproved land ; but it appears that Smith removed to the 
 eighty purchased of Moses, and subsequently fenced the tract 
 which had belonged to Henry. In March, 1860, appellant 
 purchased and paid Henry F. Balch for the land, with no other 
 or further notice than such as arises from adverse possession. 
 In June, 1860, Smith having previously died, appellant pur- 
 chased the land at a sale made by Smith's administrator, and 
 paid $96 as the consideration. Probst was a tenant, in posses- 
 sion under the heirs of Smith ; he subsequently attorned to 
 both appellee and appellant, but appellee afterward brought 
 the action of ejectment, to restrain the prosecution of which 
 the bill was filed. 
 
 The evidence disclosed the fact that Smith, before purchas- 
 ing, advised with an attorney, who informed him that Moses 
 could not make a valid conveyance under the letter as a 
 power of attorney, and informed him that if he purchased, he 
 would have to run the risk of getting Henry F. Balch to 
 ratify it. He, acting on this advice, took from Moses a bond, 
 in which he bound himself to procure a deed from Henry for 
 the land, conveying it to Smith, within " one year and fifteen 
 months," and in case of failure he was to be liable to pay 
 Smith $800, as liquidated damages, and upon his paying that 
 sum. Smith was to quit-claim the land to Henry. Moses never 
 procured the deed and did not pay the liquidated damage^. 
 
 It also appears that Smith paid to Hall $500, and to Moses 
 the balance in watches and jewelry. And upon this state of 
 facts the question is raised whether appellant is entitled to the 
 relief sought by his bill. 
 
 It is undoubtedly true that the letter of Henry F. Balch to 
 his brother Moses gave the latter authority to contract for the 
 sale of th« land. To this effect are the cases of Doty v. Wilder, 
 15 111. 407, and Johnson v. Dodge, 17 111. 433. It was there 
 
IN age;ncy. 91 
 
 held that when a party by parol authorizes another to make a 
 contract for the sale of land, if the authority is pursued, and 
 a written agreement is entered into by the agent, a Court of 
 Equity will enforce the performance of the agreement, and that 
 such a case is not within the statute of frauds. But it was 
 held in the latter of these cases that a power to convey land 
 must be in writing, and of equal dignity with the deed to be 
 executed. By the letter Moses was authorized to sell at the 
 price specified, but while the authority was in writing it was not 
 under seal, and consequently the deed made by him, as attorney 
 for Henry, was inoperative to convey the title. 
 
 When, however, the whole of the letter is considered it is 
 apparent that Henry contemplated a speedy sale, and only in- 
 tended to empower his brother to sell in a short time from its 
 date. He did not contemplate a sale years afterward, or even 
 many months. This is apparent from the fact that he says that 
 he " wants all the money he can scrape together to pay his way 
 through." He speaks in the present tense. He says he then 
 wants it ; not that he shall want it at some future time. It, 
 however, appears that the sale was not made until two years 
 and five months after he received the authority. 
 
 Smith was bound at his peril to see the authority of the^ 
 agent before he purchased, and in this case did see it, and not 
 only so, but took legal advice upon it, and was informed that 
 it was insufiicient ; that if he purchased he would have to run 
 the risk of getting it confirmed by the owner. He seems to 
 have concurred in the opinion of the attorney, inasmuch as he 
 took from the agent a bond to indemnify him against loss grow- 
 ing out of the purchase. He could see, and must have known 
 that the letter required a speedy sale, and yet he purchased 
 almost two years and a. half afterward. The avenues of infor- 
 mation were open to him and he availed himself of them, as 
 he was bound to do in dealing with an agent. He had no pre- 
 tense even that he was imposed upon, as he wp,s informed that 
 he would acquire no title by the purchase. Yet, knowing these 
 facts, he chose to risk the chances of getting the sale confirmed ; 
 or, failing in that, in obtaining indemnity from the agent. Fail- 
 
92 ILLUSTRATIVE CASES 
 
 ing to get a ratification, he only had the right to look to his 
 bond for indemnity. 
 
 In this case the letter only authorized a sale for money. It 
 speaks of so many dollars as the price for which the sale could 
 be made, and he says he " wants to scrape together all the 
 money he can to pay his way." There is no pretense that 
 either Smith or Moses P. Balch could have understood that 
 the sale could be made for watches. Yet it seems it was. It 
 is true that $500 was paid in money, yet Moses sold his im- 
 proved tract with the other, and appropriated the f 500 to pay 
 the balance of the purchase-monej^ he owed on his tract, which 
 Smith paid to Hall in person. Without a payment of that 
 amount he could not obtain a release from Hall. It would 
 therefore seem that this land was paid for in watches, and such 
 a payment was not authorized by the letter. 
 
 Smith having acquired no title by his deed, nor any right 
 to a specific performance of the unauthorized act of Moses 
 Balch, his heirs and assigns could succeed to no better title 
 than he held. The purchaser at the administrator's sale had 
 the means of learning the nature and extent of Smith's claim ; 
 and in a matter of such importance the presumption would be 
 that he became fully informed before he purchased. He then 
 cannot urge that any fraud was perpetrated upon him. He 
 no doubt examined the title and learned its character before 
 he purchased. If so, he ran all risks of losing the land, and 
 he is without any equitable remedy. The Court below, there- 
 fore, acted properly in dismissing complainant's bill for the 
 want of equity, and the decree must be affirmed. 
 
 Decree affirmed. 
 
 Van Ostrand v. Eeed, 1 Wend. 431 ; 'Harshaw v. McKesson, 65 N. C. 688 ; 
 Blood V. Goodrich, 9 "Wend. 68. 
 
 Authority to fill in blanks in deeds can be conferred only by an instru- 
 ment under seal: Burns v. Lynde,6 Allen, 305; Preston o. Hull, 23 Gratt. 
 €00. 
 
 Authority to sell real estate must be in writing in Minnesota : Minn. Gen- 
 eral Stats., 1878, ch. 41, § 10; Mechem, 88. 
 
IN AGENCY. 93 
 
 4 
 
 Implied Authority. 
 
 Authority may be implied from words or conduct or from the cir- 
 cumstances of the particular case, but it will not exceed the neces- 
 sary and legitimate effect of the facts from which inferred. 
 
 Hazeltine v. Miller. 
 Supreme Judicial Court of Maine, 1857. 
 44 Me. 177. 
 
 This is an action of assumpsit upon an agreement signed 
 " Wm. R. Miller, Agent," and was defended upon the ground 
 that he had no authority to bind the defendant by an agree- 
 ment for such purposes as are embraced therein. 
 
 Cutting, J., presiding at Nisi Prius, ordered a non-suit; to 
 which, and to the rejection of certain evidence, the plaintiff 
 excepted. 
 
 This case, upon a mere legal look at the thing, appears to 
 have been rightly non-suited. 
 
 The facts most favorably stated for the plaintiff are just 
 these : The defendant owned certain mills and land connected 
 therewith, in the town of Howland. Wm. R. Miller had rented 
 the mills and sold stumpage from the land. Now did that 
 authorize Wm. R. to make a contract for the defendant, to 
 have lumber cut and hauled, and on other land ? He never 
 had even made such a contract on the mill land. He had sold, 
 but never bought. 
 
 The question is not whether there is evidence tending to 
 show, but is the plaintiff's testimony sufficient to authorize 
 a verdict? 
 
 There is not even testimony, taken by itself, tending to show 
 an authority. If there is, there will be too much danger for 
 one man even to employ another. 
 
 The key to this case, does not appear, as the defense was not 
 reached, but it may be stated as a supposition, and will test 
 the plaintiff's pretension. 
 
 There is not a particle of testimony in this case showing 
 
94 ILLUSTRATIVE CASES 
 
 any authority in "Wm. E. Miller, to bind the defendant to pay 
 money — to make contracts to pay money — to assume responsi- 
 bilities. Such an inference of a general agency would be 
 destructive of all business delegation of authority. 
 
 There is no evidence of a general agency. It is not every 
 act of employment which renders a party an agent. A clerk 
 with authority to sell goods has no authority to buy goods, 
 and give his employer's note. Nor does an authority in this 
 case, to rent mills and rent lands, authorize Wm. R. Miller to 
 make a contract foreign to renting mills and lands. 
 
 Here was a mere limited authority for certain definite pur- 
 poses. For appropriate illustrations, see cases of Webber v. 
 Williams College, 23 Pick. R. 302 ; Nash v. Drew, 5 Gush. R. 
 424 ; Tabor v. Cannon, 8 Me,t. R. 456 ; Calef v. Foster, 32' 
 Maine R. 92. 
 
 The testimony was rightly rejected. The plaintiff could call 
 Wm. R. Miller as a witness. 
 
 Rice, J. No rule of law is better established, or more uni- 
 versally recognized, than that the authority of an agent, to 
 act for, and bind, his principal, will be implied from the fact 
 that such agent has been accustomed to perform acts of the 
 same general character for that principal, with his knowledge 
 and assent. Nor is it necessary, in order to constitute a gene- 
 ral agent, that he should have done before an act, the same in 
 specie with that in question. If he have usually done things 
 of the same general character and effect, with the assent of his 
 principal, that is enough. Thus it was held in Bank of Lake 
 Erie v. Norton, 1 Hill R. 502, where, by articles of copartner- 
 ship, one Norton was created agent of a firm, but his author- 
 ity, as therebj' defined, did not extend to accommodation 
 acceptances. It was proved, however, that he was the general 
 agent of the firm, and with their knowledge and assent, was 
 in the habit of drawing bills, and making notes and indorse- 
 ments for them ; though the specific act of acceptance was 
 not mentioned in the evidence, as one that had been usually 
 done, the Court decided that his general power, and the 
 
IN AGEtrCY. 95 
 
 usage of putting the firm name to commercial paper, in all 
 other shapes, was the same thing, in substance, and calcu- 
 lated to raise an inference in the public mind that he had such 
 a power. 
 
 But the acts from which authority to do a specific act can 
 be implied, must be of the same general character and effect. 
 Thus it was held in Tabor v. Cannon, 8 Met. R. 456, that an 
 agent who is employed by the owners of a whale ship, to fit 
 her for sea, and purchase the necessary supplies for her voy- 
 age, cannot bind the owners by making a negotiable note, or 
 accepting a negotiable bill of exchange in their names, as 
 agent, in payment for such supplies. The Court, in their 
 opinion, remark, there is good reason for this distinction. In 
 a, contract of sale, the owners can be liable to no one but the 
 actual sellers of the goods ; the consideration may be inquired 
 into ; all the circumstances attending the. sale may be shown ; 
 and all payments and offsets may be adjusted ; all which 
 would be precluded if an action could be maintained by the 
 indorser on an acceptance. 
 
 In Webber v. Williams College, 23 Pick. R. 302, which was 
 on a note given by Mr. Fessenden, of Portland, as agent, for 
 the defendants. Mr. F. was agent for the defendants, at Port- 
 land, to manage some interests of theirs growing out of some 
 eastern lands. To avoid an apprehended troublesome contro- 
 versy, Mr. Fessenden was authorized to advance to a Mr. In- 
 gersoU, one or two hundred dollars, to assist him in paying 
 off a large highway tax. Iilstead of advancing the money, 
 Mr. Fessenden gave the note in suit. The Court held that the 
 note was made without authority, and was not binding on the 
 defendants. 
 
 A general authority to an agent to collect debts, and to 
 pay and receive money, does not authorize him to bind his 
 principal by negotiable instruments ; such an authority must 
 be expressly conferred or reasonably implied from the nature 
 of the business to be done : Rossiter v. Rossiter, 8 Wend. R. 
 496. 
 
 In the case at bar, the evidence shows satisfactorily that 
 
96 ILLUSTRATIVE CASES 
 
 W. R. Miller was an agent for the defendant. That in that 
 capacity he carried on his mills, at the mouth of the Piscata- 
 quis ; that he paid the taxes on the defendant's property ; 
 that he gave permits for cutting timber on the defendant's 
 lands in Rowland and Edinburgh, and collected the stumpage 
 therefor; that he settled and received pay for lumber cut 
 upon the defendant's land without authority. There was also 
 evideAce that on one occasion he gave a note to the town of 
 Howland, as the agent of the defendant. There is no evidence, 
 however, that he had any authority to give that note, or that 
 the defendant had any knowledge of its existence till long 
 after it was given, or that he has ever recognized it as a valid 
 note against him. 
 
 Now there is a wide . distinction between authority in an 
 agent to carry on mills for the owner ; to permit parties to cut 
 timber on his lands, and collect the stumpage therefor ; to 
 claim indemnit}'^ from trespassers ; and authority to enter into 
 contracts for carrying on lumbering operations, by which the 
 principal was to be obligated to pay large sums of money. In 
 the one case the agent would be, in different modes, collecting 
 for his principal money arising from the use or proceeds of 
 the sales of his property ; in the othef, he would be embark- 
 ing that principal in business enterprises which might involve 
 large pecuniary liabilities and losses. Authority to embark 
 in enterprises of the latter descriptidn could not be implied 
 frona an admitted agency, with authority to perform acts of the 
 former character. 
 
 As to the testimony of the witness, Muzzey, taken in con- 
 nection with the letter of the defendant, it restricts rather than 
 enlarges the authority of W. R. Miller, as agent of the de- 
 fendant. No implication of authority to enter into the contract 
 in question can arise from that transaction. 
 
 The declarations of W. R. Miller' were properly rejected. 
 There must be proof of agency before the declarations of the 
 alleged agent are admissible in any case ; and then only such 
 declarations as are strictly part of the res gestse. There being 
 no proof of authority in the agent to perform the principal 
 
IN AGENCY. 97 
 
 act, his declarations, while in the performance of that act, are, 
 as matter of coarse, inadmissible. 
 
 It may well be doubted whether, by the terms of the instru- 
 ment itself, any persons other than the plaintiff and William 
 R. Miller, are bound by it. But as this point was not raised 
 in the arguments of the counsel, we express no opinion upon 
 it. The non-suit must stand. 
 
 Exceptions overruled. 
 
 Mechem, 274, 307, 310 ; Gulick v. Grover, 33 N. J. L. 463 ; Hull v. Jones, 69 
 Mo. 587; St. L. & M. P. Co. v. Parker, 59 111. 23; Lawrence v. Winona & St. 
 P. R. R. Co., 15 Minn. 390 ; Tice v. Russell, 43 Minn. 66. 
 
 Private Instructions. 
 
 General Agents. 
 
 A general agent's authority cannot be limited by secret instrac- 
 tions. 
 
 Butler v. Maples. 
 
 Supreme Court of the United States, 1869. 
 
 9 Wall. 766. 
 
 One Shepherd, living in Desha County, Arkansas, during 
 the war of the rebellion, bought one hundred and forty-four 
 bales of cotton from Maples, plaintiff herein, Shepherd pro- 
 fessing to act as agent for Bridge & Co., of Memphis, Tenn., 
 which firm was composed of Hicox, Butler, and others, defend- 
 ants herein. 
 
 Shepherd's authority to make the contract for defendants 
 was based on an article of agreement which empowered him 
 to buy cotton for them in his county and vicinity, not paying 
 an average of more than thirty cents a pound. He was to 
 pay as little as possible on the cotton until it was delivered on 
 a boat or within the protection of a gunboat, after which the 
 ownership should vest absolutely in defendants. 
 
 The cotton bought by Shepherd was bought by him as it 
 7 
 
98 ILLUSTRATIVE CASES 
 
 lay, he agreeing to pay for it forty cents a pound as soon as it 
 could be weighed. Having been weighed he removed fifty- 
 four bales of it, but ninety bales were burned before it could 
 be placed in a boat to be carried up the river. The fifty-four 
 bales removed were got on board and sent to Bridge & Co., and 
 Maples, the vendor, went to Memphis to see them. He saw 
 Hicox, who wholly denied Shepherd's agency and refused to 
 pay anything for the cotton that was lost, but agreed to pay 
 fifty cents a pound for these fifty -four bales that had arrived. 
 Maples took this sum, supposing, as he alleged, that the asser- 
 tions about Shepherd's want of authority were true, and only 
 on that account. Seeing Shepherd afterward. Shepherd in- 
 formed him that they were not true, and Butler and Hicox 
 still denying wholly Shepherd's authority to make the con- 
 tract and to bind the firm, and still refusing to pay for the 
 cotton that was burnt, Maples sued them in the Court below to 
 recover the price. 
 
 On the trial the Court instructed the jury, among other 
 things, as follows : 
 
 " A principal is bound by all that a general agent does 
 within the scope of the business in which he is employed as 
 such general agent ; and even if such general agent should 
 violate special or secret instructions given him by his princi- 
 pal and not disclosed to the party with whom the agent deals, 
 the principal would still be bound if the agent's acts were 
 within the scope of the business in which he was employed, 
 and of his general agency. 
 
 " However, a party dealing with a general agent, who seeks 
 to hold the principal bound for the agent's acts or contracts, 
 must show, in order to recover, that the agent held himself out 
 as general agent, and that in fact he was such general agent. 
 
 "If Shepherd held himself out as the general agent of 
 Bridge & Co., then the defendant is bound by the contract 
 which he made with the plaintiff" for the cotton, notwithstand- 
 ing Shepherd may have agreed to pay more for the cotton 
 than his principal had authorized ; and if, as general agent of 
 Bridge & Co. to buy cotton in Desha County, Shepherd was 
 
IN AGENCY. 99 
 
 not authorized by Bridge & Co. to buy cotton except to be 
 delivered on board the bout, and in violation of their instruc- 
 tions he did buy the plaintiff's cotton, and agreed to receive 
 and accept delivery of it elsewhere than on the boat, unless 
 the plaintiff knew of these instructions the defendants are 
 bound by the contract which Shepherd made, because it was 
 within the scope of his general agency just as much as was the 
 .agreement to give for the cotton a larger price than that to 
 which he was limited by the instructions of Bridge & Co." 
 
 Verdict and judgment hkving gone for the plaintiff, defend- 
 a,nts appealed. 
 
 Strong, J. At the trial it was, of course incumbent upon 
 "the plaintiff to prove not only the contract of sale, but also 
 that Shepherd, with whom the contract had been made, had 
 authority to act for and bind the defendants. Accord- 
 ingly evidence was submitted to show that the cotton was 
 purchased by Shepherd when professing to act as an agent for 
 the defendants. There was hardly any controversy about this 
 fact, and no questions are now raised respecting the compe- 
 tency or sufficiency of the proof, or the manner in which it 
 was submitted to the jury. But the authority of Shepherd to 
 make the contract for the defendants and bind them to its 
 performance was stoutly denied, and it is now strenuously 
 insisted that the Court erred in the instructions given to the 
 jury respecting the evidence of his agency. The defendants 
 insist the Court erred in charging that the written agreement 
 between him and Bridge & Co. constituted him their general 
 agent. We do not find that the Court did thus instruct the 
 jury, though it must be admitted the charge may have been 
 thus understood. The jury was instructed that if Shepherd 
 held himself out as the general agent of Bridge & Co., the 
 •defendants were bound by the contract he made with the 
 plaintiff for the cotton, though in making the contract he 
 transgressed the instructions he had received, and secret 
 limitations of his authority, which instructions and limita- 
 tions were not revealed to the plaintiff. It is true, as has 
 
100 ILLUSTEATIVE CASES 
 
 been noticed, there was other evidence of a general agency- 
 beyond that which the agreement furnished, but as it was 
 parol evidence, its force and effect were for the jury, and 
 hence the Court could not rightly have charged that the de- 
 fendants were bound by the contract unless the agreement 
 did itself constitute Shepherd a general agent. But did it 
 not ? The distinction between a general and a special agency 
 is in most cases a plain one. The purpose of the latter is a. 
 single transaction, or a transaction with designated persons. 
 It does not leave to the agent any discretion as to the per- 
 sons with whom he may contract for the principal, if he be 
 empowered to make more than one contract. Authority to 
 buy for a principal a single article of merchandise by one 
 contract, or to buy several articles from a person named, is 
 a special agency, bijt authority to make purchases from any 
 persons with whom the agent may choose to deal, or to make 
 an indefinite number of purchases, is a general agency. And 
 it is not the less a general agency because it does not extend 
 over the whole business of the principal. A man may have 
 many general agents — one to buy cotton, another to buy 
 wheat, and another to buy horses. So he may have a gen- 
 eral agent to buy cotton in one neighborhood, and another 
 general agent to buy cotton in another neighborhood. The 
 distinction between the two kinds of agencies is that the one 
 is created by power given to do acts of a class, and the other 
 by power given to do individual acts only. ' "Whether, there- 
 fore, an agency is general or special is wholly independent 
 of the question whether the power to act within the scope 
 of the authority given is unrestricted, or whether it is re- 
 strained by instructions or conditions imposed by the prin- 
 cipal relative to the mode of its exercise. Looking to the 
 agreement between Bridge & Co. and Shepherd, it cannot be 
 doubted that it created a general agency. It w.as a delega- 
 tion of authority to buy cotton in Desha County and its 
 vicinity, to buy generally, from whomsoever the agent, not 
 his principals, might determine. It had in view not merely 
 a single transaction, or a number of specified transactions, 
 
IN AGENCY. 101 
 
 "which were in the mind of tlie principals when the agent was 
 ^.ppointed, but a class of purchases, a department of business. 
 It is true that it contained guards and restrictions which were 
 intended as regulations between the parties, but they were 
 .secret instructions rather than limitations. They were not 
 intended to be communicated to the parties with whom the 
 .agent should deal, and they never were communicated. It 
 was, therefore, not error to instruct the jury as the Court did, 
 that the agency was a general one, and that the defendants 
 were bound by the contract, if Shepherd held himself out as 
 .authorized to buy cotton, and if the plaintiff had no knowledge 
 ■of the instructions respecting the mode in which the agent 
 was required to act. 
 
 It may be remarked here that the reasons urged by the 
 plaintiffs in error in support of their deiaial of liability for 
 the engagements made by Shepherd are that he agreed to 
 pay forty centa per pound for the plaintiff's cotton; that he 
 "bought the cotton where it lay instead of requiring delivery 
 •on board a steamboat, or within the protection of a gun- 
 boat ; and that he did not obtain a permit from the govern- 
 ment to make the purchase. The argument is that in the 
 first two particulars he transcended his powers, and that his 
 autliority to buy at all was conditioned upon his obtaining a 
 permit from the government. All this, however, is imma- 
 terial, if it was within the scope of his authority that he 
 .acted. The mode of buying, the price agreed to be paid, 
 and the antecedent qualifications required of him, were mat- 
 ters between him and his principals. They are not matters 
 in regard to which one dealing with him was bound to in- 
 quire. But even as between Bridge & Co. and Shepherd a 
 purchase at forty cents per pound was not beyond his au- 
 thority. He was authorized to buy "on the best possible 
 -terms, not paying an average of more than thirty cents per 
 pound." This contemplated his agreeing to pay in some 
 ■cases above thirty cents. The average was regulated, but 
 no maximum was fixed. Nor is there anything in the agree- 
 ment that forbade his purchasing cotton deliverable at once 
 
102 ILLUSTKATIVB CASES 
 
 where it lay, though not on a boat or in the protection of a. 
 gunboat. He was authorized to purcljase deliverable at 
 such times and places of shipment as might be agreed upon ;. 
 that is, deliverable when and where it might be stipulated 
 between him and the seller. True, he was to pay as little 
 as possible until the cotton was delivered on a boat, or within 
 the protection of a gunboat; and when thus delivered the- 
 property in the goods was to vest in the principals, except- 
 ing his share of the profits, but he was not prohibited from 
 paying the whole price, or agreeing to pay the whole price, 
 if insisted on by the vendor. The stipulation respecting the 
 vesting of ownership was nothing more than a definition of 
 right between him and his principals, as is manifested by 
 the exception. Nor was Shepherd bound to procure a permit 
 in his own name. He might have been had it been neces- 
 sary, but if under the permit granted \>y Bridge & Co. he could 
 purchase as their agent, it was all the agreement required. 
 
 It is further objected to the charge given to the jury respect- 
 ing general and special agency, that it was not applicable^ 
 to the proof in the case, and was therefore irrelevant and 
 calculated to mislead the jury, and because, as stating abstract 
 questions of If) w, the instruction was erroneous. If, in truth, 
 it was irrelevant, it was not on that account necessarily erro- 
 neous and calculated to mislead the jury. We are not shown, 
 nor do we perceive, how the jury could have been misled by 
 it. They were instructed that, in cases of special agency,, 
 one who deals with the agent must inquire into the extent- 
 of his authority, but that a principal is bound by all that his- 
 general agent has done within the scope of the business in 
 which he was employed, and this, though the agent may have 
 violated special or secret instructions given him, but not dis- 
 closed to the party with whom the agent deals. Surely this 
 was correct, and it was applicable to the evidence in the case. 
 It has been intimated during the argument that the Court 
 should have added that no such liability can exist to one 
 dealing Avith an agent with notice that the particular act of 
 the agent was without authority from the principal. To this. 
 
IN AGENCY. 103 
 
 several answers may be made. The exception to the general 
 rqle, which it is said the Court should have recognized, is 
 implied in what the Court did say. Again, there was no 
 request for any such instruction ; and still again, the evidence 
 in the case did not demand it. There was no pretense that 
 the plaintiff had any notice of secret instructions given to 
 Shepherd, or of any limitations upon his authority. Nor was 
 there anything that imposed upon him' the duty of making 
 inquiry for secret instructions or for restrictions. There were 
 no circumstances that should have awakened suspicion. The 
 plaintiff was not apprised that the authority was in writing. 
 The argument is very far-fetched that infers a duty to inquire 
 whether the agent had private instruction from the fact that 
 the contract was made in a region that had been in a state of 
 insurrection. 
 
 Story, 73 ; Mechem, 279, 282 ; Peterson v. Lumber Co., 51 Minn. 90. 
 
 Special Agents. 
 
 A special agent's authority, •when not apparent, can be limited by 
 secret instructionii'. 
 
 Blackwell v. Ketcham. 
 Supreme Court of Indiana, 1876. 
 53 Ind. 184. 
 Downey, C. J. This was an action by the appellee against 
 the appellant and one Stultz on a promissory note, of which 
 they were the makers and he the payee. It is alleged in the 
 complaint, that by the agreement and authority of said Gar- 
 rett J. Blackwell, his co-defendant, John W. Stultz, signed the 
 name of said Blackwell to said note, and by mistake, signed 
 
 his 
 
 his name James M G. Blackwell, when, in fact, he is gen- 
 mark. 
 erally known by the name of Garrett J. Blackwell. Process 
 was not served on Stultz. Blackwell answered, under oath, 
 denying the execution of the note. Upon a trial of this issue 
 
104 ILLUSTRATIVE CASES 
 
 by a jury, there was a verdict for the plaintiff. The defendant 
 moved the Court for a new trial, for causes specified in his 
 written motion ; but the same was denied, and judgment was 
 rendered on the verdict. 
 The errors assigned are : 
 
 1. That the complaint does not state facts sufficient to con- 
 stitute a cause of action. 
 
 2. That the Court improperly refused to grant the defendant 
 a new trial. 
 
 The first alleged error is expressly waived by counsel for the 
 appellant. 
 
 Under the second assignment, it is urged that the Court 
 erred in excluding certain testimony of one James Shields, 
 offered by the defendant, in giving instruction number three 
 of the general instructions by the Court, and in giving a spe- 
 cial instruction asked by the plaintiff. These questions need 
 not all be considered. We pass over the first and go to that 
 relating to the instructions. The third instruction is as fol- 
 lows: 
 
 " If you should find from the evidence that BlackM^ell au- 
 thorized Stultz t6 put his name to a note with him for $300 or 
 $350, to be executed in considera;tion of an interest in certain 
 mill property then belonging to one Helton, and you further 
 find that the note in suit was given for said interest in said 
 mill, and the same as was authorized to be given, except that 
 it was for $475, and larger tlian defendant authorized, yet, if 
 you should find that the note was received by the payee with- 
 out any knowledge that Stultz had exceeded his authority, and 
 you further find that there was nothing in the transaction cal- 
 culated to put him on inquiry or to indicate this want of au- 
 thority, then Blackwell would be bound, notwithstanding he 
 had not authorized it for the larger amount. Just so, if a man 
 sign his name to a note with another, leaving the amount 
 blank, with authority to his co-obligor to fill it up with any 
 amount not exceeding $300, and the co-obligor fills it up with 
 $475 ; in such a case as this, the party who authorized the 
 blank filled would be bound for the larger amount, if the 
 
IN AGENCY. 105 
 
 payee to whom it was given acted in good faith and had no 
 knowledge of the fraud that the one maker was practicing on 
 the other. The reason of this is, that where one of two inno- 
 cent parties are to suffer, the one who gives the confidence and 
 enables the fraud to be perpetrated should suffer, rather than 
 the payee who had no knowledge of it." 
 
 The special instruction, of which complaint is made, is of 
 the same import as that just set forth. 
 
 We are of the opinion tiiat the Court has applied to the case 
 a rule of law not applicable to it. The case of one who signs 
 paper in blank is essentially different .from this. In that case, 
 by signing the paper in blank, he impliedly confers upon the 
 party to whom he intrusts it authority to fill up the blanks, so 
 as to perfect the instrument, and this gives him power to fill 
 the blank left for the insertion of the amount which is to be 
 paid : Holland v. Hatch, 11 Ind. 497 ; Spitler v. James, 32 
 Ind. 202 ; Gillespie v. Kelley, 41 Ind. 158. 
 
 The case under consideration is wholly different. It pre- 
 sents a question of easy solution, however. Blackwell author- 
 ized Stultz to sign his name to a note for $300, or $350. Stultz 
 thus became the special agent of Blackwell to do this particular 
 act. A special agent cannot bind his principal in a matter 
 beyond or outside of the power conferred, and the party deal- 
 ing with a special agent is bound to know the extent of his 
 authority: Pursley v. Morrison, 7 Ind. 356; Eeitz v. Martin, 
 12 Ind. 306; Cruzan v. Smith, 41 Ind. 288; Berry v. Ander- 
 son, 22 Ind. 36. 
 
 The judgment is reversed, with costs, and the cause re- 
 manded for a new trial. 
 
 Mechem, 288 ; Saginaw Oo. v. Chappell, 56 Mich. 190 ; Towle v- Leavitt, 23 
 N. H. 360; Cruzan v. Smitii, 41 Ind. 288; Nininger v. Knox, 8 Minn. 140; 
 Mechem, 280. 
 
106 ILLUSTRATIVE CASES 
 
 6 
 
 Delegatus Non Potest Delegaki. 
 
 Subject to exceptions, delegated authority cannot be delegated, 
 
 Lynn v. Buegoyne. 
 Kentucky Court of Appeals, 1852. 
 ^ 13 B. Mon. 400. 
 
 This is an action of debt brought by Burgoyne to recover 
 from Lynn the amount of a note, executed by him to the 
 plaintiff for the sum of $420. Lynn relied for his defense, 
 that there was no consideration for the note. 
 
 The plaintiff, Burgoyne, was the agent of the Columbus In- 
 surance Companj'^, Ohio, and resided at Cincinnati ; and the 
 note was executed to Burgoyne in consideration that he, as the 
 agent of the company, would issue to the defendant a policy 
 of insurance to the amount of $6,000, upon the steamboat John 
 Drennon, for one year. 
 
 An instrument, signed by the president of the company, 
 purporting to be a policy of' insurance, was issued and de- 
 livered to the defendant by G. W. Williams, the book-keeper 
 of the, company at Cincinnati. This instrument, upon its 
 face, declares that it " shall not be valid until countersigned 
 by Johu Burgoyne, agent at Cincinnati." It never was 
 countersigned by Burgoyne. But, some time after said instru- 
 ment had been delivered to the defendant, two indorsements 
 were made upon its back — one extending further privileges 
 to the defendant, and the other transferring the instrument to 
 Smith and others ; and these indorsements are signed with 
 the name of Burgoyne by said G. W. • "Williams ; and it is 
 contended that, if the policy were otherwise invalid .for the 
 want of the counter-signature of Burgoyne in regular form, 
 that his name to said indorsements by G. W. Williams is a suf- 
 ficient countersigning to make the instrument a valid policy. 
 
 Whether the instrument, had it been issued and delivered 
 by Burgoyne himself, as a policy of insurance, would have been 
 valid, notwithstanding an omission to countersign it ; and. 
 
IN AGENCY. 107 
 
 whether the indorsements might be regarded as a sufficient 
 countersigning, and sanction of the instrument by Burgoyne, 
 the agent, had he, himself, put his signature to them, need not 
 be decided. For, the issuing of the instrument, and ' the sig- 
 natures to the indorsements are, all, the acts of G. W. Williams, 
 the book-keeper. 
 
 The deposition of Williams was taken, and he states that he 
 had Burgoyne's "authority for signing policies of insurance; 
 that losses were paid by said company on policies which Bur- 
 goyne had never signed in person ; and that Burgoyne recog- 
 nized all his acts, by reason of his connection with the com- 
 pany." 
 
 But whatever may have been done by Burgoyne in confer- 
 ring authority upon Williams, and in recognizing his acts, and 
 in paying losses by him, incurred under policies issued by 
 Williams, is, in our opinion, immaterial. For there is no evi- 
 dence that the company had been apprized of this mode of 
 doing business at their agency in Cincinnati, and that it had 
 received their sanction and approbation. Whatever effect, 
 therefore, might be given to such acts, in the absence of the 
 counter-signature of the agent, need not be determined. The 
 instrument itself, upon its face, is declared to be invalid, 
 without the counter-signature of the agent, Burgoyne ; he 
 alone had authority to issue policies from the office of the 
 company at Cincinnati, and he had no right or power to dele- 
 gate this authority to another. And if it were conceded, that 
 a policy issued as this was without the counter-signature of 
 Burgoyne, might be rendered valid and effectual by showing 
 a subsequent approval of the company ; or, that the company 
 had known, and been in the habit of sanctioning and approv- 
 ing such acts — none of these things were manifested by the 
 proof. The agent of the company, from the nature of their 
 business, and the large amount of capital which may be sup- 
 posed to be involved, ought to be a man of intelligence, pru- 
 dence, and integrity. And the agent, in this case, was doubt- 
 less selected with an eye to these necessary qualities. He it is 
 in whom the company confided, from what appears in the 
 
108 ILLUSTRATIVE CASES 
 
 record, and not in Mr. Williams, who, whatever may be his 
 intelligence, discretion, integrity, and business capacity, was 
 not the man to whom the important trusts of the company had 
 Jbeen committed. 
 
 We are of opinion, therefore, from the record in this case, 
 that the instrument exhibited does not appear to be a valid 
 policy of insurance, and, consequently, that there seems to be 
 no consideration for the note sued on. 
 
 Wherefore the judgment is reversed, and the cause remanded 
 for a new trial. 
 
 Mechem, 184 ; Story, 13 ; Darling v. St. Paul, 19 Minn. 389 ; Warner v. 
 Martin, 11 How. (U. S.) 209. 
 
 Exceptions. 
 Ministerial Duties. 
 
 Delegated authority of an executive or ministerial character may 
 %e delegated. 
 
 Williams v. Woods. 
 
 Maryland Court of Appeals, 1860. 
 
 16 Md. 220. 
 
 Eccleston, J. At the trial of this cause, the plaintiffs 
 -offered five pjayers ; the 2d, 3d, and 5th, were granted without 
 alteration, and' the 1st and 4th were modified, by the Court, 
 .and then granted. The defendant offered six prayers, all of 
 which were refused. 
 
 The judgment was rendered for the plaintiffs upon a verdict 
 in their favor, and the defendant appealed. 
 
 One bill of exceptions contains all the evidence and all the 
 prayers. 
 
 The plaintiffs examined A. A. White as a witness, who 
 ,-gave evidence tending to prove that White & Elder, as part- 
 ners, were engaged in the business of merchandise brokers, 
 and in the sale of merchandise on commission. That White 
 as a member of said firm, and under authority from William 
 
IN AGENCY. 
 
 109> 
 
 Howell & Son, made the sale of coffee now in dispute. That 
 White then ordered R. W. Hall, the clerk of White & Elder, 
 to make an entry of the sale in the blotter of the firm, as said 
 firm usually did in their blotter. That the entry was accord- 
 ingly made by Hall, in part, and afterward completed by 
 White ; which entry is as follows : 
 
 " 1853, Augt. 26. 
 
 C. W., 1244 bags Eio coffee. 
 
 Wm. Howell & Son. 
 
 Paper to be satisfactory to the 
 
 Woods, B. & Co. 
 
 sellers. 
 
 G 1 
 
 26 
 
 W 2 
 
 42 
 
 3 
 
 27 
 
 4 
 
 62 
 
 5 
 
 24 
 
 6 
 
 70 
 
 7 
 
 60 
 
 8 
 
 58 
 
 9 
 
 72 
 
 10 
 
 85 
 
 11 
 
 38 
 
 12 
 
 39 
 
 13 
 
 43 
 
 14 
 
 68 
 
 15 
 
 101 
 
 16 
 
 30 
 
 17 
 
 95 
 
 18 
 
 34 
 
 19 
 
 26 
 
 20 
 
 60 
 
 21 
 
 52 
 
 22 
 
 16 
 
 23 
 
 56 
 
 24 
 
 60 1244 9f" 
 
 The said White, also testified that all of this entry is in the 
 handwriting of Hall, except the figures " 9f ," and the words 
 " paper to be satisfactory to the sellers ;" which excepted figures 
 and words are in the handwriting of the witness, who further 
 stated, on cross-examination, that he stood at the table by 
 Hall, while Hall made the entries. 
 
 The plaintiffs, in their first prayer, insist that " the said 
 entry is a sufficient note or memorandum, in writing, of a 
 contract, to bind the defendant in this action." The correct- 
 ness of this proposition is denied by the appellant, for the 
 reason that, if the memorandum was signed at all, it was 
 signed, not by a broker, but by a broker's clerk, who had no 
 authority to do so, the latter acting as sub-agent, only, of the 
 
110 ILLUSTRATIVE CASES 
 
 former, who was but an agent himself, in a transaction or 
 business, which prohibited any delegation of his authority 
 to a sub-agent. But the appellees consider the memorandum 
 equally as valid and binding as if it had been prepared and 
 signed by White himself; because it was written and signed, 
 in the' blotter or sales-book of White & Elder, by Hall, their 
 clerk, under the direction of White, he standing by the 
 table whilst Hall made the entry, so far as it was made 
 by him. 
 
 Apart from all other objections urged by the appellant to 
 the appellees' first prayer, supposing White & Elder had 
 authority to make sale of the coffee, and did make a sale there- 
 of, and that the terms of said sale are correctly and sufficiently 
 set forth in the entry or memorandum on the blotter of 
 White & Elder, we propose, in the first place, to inquire 
 whether the entry or memorandum is a valid and binding 
 entry or memorandum of the sale, notwithstanding it is all 
 in the handwriting of Hall, their clerk, excfept the figures 
 " 9|," and the words, " paper to be satisfactory to the sellers," 
 which are in the handwriting of White ? This inquiry pre- 
 sents the legal question, argued before us by counsel, whether 
 a broker, having made a contract of sale, can authorize his 
 clerk to make and sign an entry or memorandum thereof, 
 under his direction and in his presence, so as to bind the 
 parties named in the contract? 
 
 This question does not seem to have been conclusively set- 
 tled. Whilst there are authorities which may be considered 
 as favoring the doctrine that although a broker may, as an 
 agent, make and sign a valid contract, for his principal, yet 
 his agency is such that no portion thereof, under any circum- 
 stances, can be delegated to his clerk, there are others which 
 speak of it as an open question, and others, again, seem to 
 sustain the authority of the clerk to reduce the contract to 
 writing, and sign the same, where he exercises no discretion, 
 but merely acts ministerially or mechanically, under the direc- 
 tion and supervision of his employer, the broker. As author- 
 ities of the first class, reference is generally made to Blore v. 
 
IN AGENCY. Ill 
 
 Sutton, 3 Merivale, 237, and Henderson u Barnewall, 1 Younge 
 & Jervis, 387. 
 
 In Browne on Stat, of Frauds, § 369, after stating the 
 authority of an auctioneer's clerk to write down the name of 
 the buyer, under his principal's direction, the author says : 
 " It has been decided that the rule did not embrace tlie clerk 
 of a broker." The decision referred to in this note is Hen- 
 derson V. Barnewall. And the writer adds : " But even this 
 seems now to be open to question." As authority for saying 
 which, he cites Townend v. Drakeford, 1 Carr. & Kirw. 20. 
 
 In Story on Agency, § 13, the learned writer treats of 
 the " Delegation of Agency." He there states that a factor 
 cannot ordinarily delegate his employment, as such, to an- 
 other; after which he says: "The same rule applies to a 
 broker ; for he cannot delegate his authority to another to 
 sign a contract in behalf of his principal, without the assent 
 of the latter. The reason is plain ; for, in each of these cases, 
 there is an exclusive personal trust and confidence reposed in 
 the particular party. And hence is derived the maxim of the 
 common law : delegata potestas non potest delegari." This is 
 but the enunciation of the general rule that, ordinarily, a 
 broker cannot delegate his authority. For the principle just 
 stated is, that a " factor cannot ordinarily delegate his em- 
 ployment," and then it is said, " the same rule applies to a 
 broker." In addition to which, the reason for the rule as 
 stated, is, because there is an exclusive personal trust and 
 confidence reposed in the broker. Surely the reason of the 
 rule cannot be applicable where the broker stands by whilst 
 the clerk signs the contract, under his direction, leaving no act 
 of discretion for the clerk to perform. 
 
 The propriety of permitting an agent to perform a mere 
 ministerial or mechanical act, by a sub-agent or deputy, even 
 where he could not delegate any portion of his authority, 
 requiring the exercise of the least discretion, is well considered, 
 in the opinion of the Supreme Court of New York, delivered 
 by Mr. Justice Cowen, in Com. Bank of Lake Erie v. Norton, 
 1 Hill, 504. And there the cases of Blore v. Sutton and Hen- 
 
112 ILLUSTRATIVE CASES 
 
 derson v. Barnewall 'are referred to. The Court quote the lan- 
 guage of Lord Ellenborough in Mason v. Joseph, 1 Smith's 
 Rep. 406, when speaking of an agent in relation to a mere 
 ministerial act, he says : " Suppose, for instance, he had got 
 the gout in his hands, and could not actually sign himself, he 
 might have authorized another to sign for him." 
 
 In Parsons' Mercantile Law, 155, note 7, many authorities 
 are cited in relation to the power of an agent to appoint a 
 sub-agent, and then it is said : " A broker cannot delegate 
 his authority." " Nor can a factor." After stating each of 
 these propositions, the writer cites authorities, and then says : 
 " But the power to perform a merely ministerial act, involv- 
 ing the exercise of no discretion, may be d'elegated." Then 
 he refers to Mason v. Joseph, 1 Smith, 406, per Lord Ellen- 
 borough ; Commercial Bank of Lake Erie v. Norton, 1 Hill, 
 601, and other cases. 
 
 In 1 American Lead. Cases, 589 (Ed. of 1857), the principle 
 is recognized that a merely ministerial or mechanical act 
 may be done by a sub-delegate. And the above mentioned 
 case, in 1 Hill, is there referred to. 
 
 After mature reflection we are not prepared to sustain the 
 objection to the appellees' first prayer, urged by the appellant, 
 upon the ground that the entry or memorandum is invalid, 
 because it was chiefly prepared and signed by Hall, the clerk. 
 The prayer submits to the jury the inquiry, whether the entry, 
 so far as Hall participated therein, was made by him, under 
 the order of White, and in his presence, also whether the 
 other portion thereof was completed by White. And there is 
 evidence tending to prove such facts. Believing that, under 
 such circumstances, the clerk should not be considered as 
 performing an act of delegated authority, requiring the exer- 
 cise of any discretion, but merely a ministerial act, under the 
 order and in the presence of White, as one of the firm of 
 White & Elder, the appellant's objection to the prayer is not, 
 in our opinion, a valid objection. 
 
 Story, 14 ; Mechem, 193 ; Eldridge v. Holway, 18 111. 446 ; Newell v. Smith, 
 49 Vt. 255 ; Ren wick v. Bancroft, 56 Iowa, 527 ; Bodine v. Ins. Co., 51 N. Y. 117. 
 
IN AGENCY. 113 
 
 Necessity or Custom. 
 
 Delegated authority may be delegated ^vhen necessity, custom, or 
 usage of trade requires it. 
 
 Dorchester Bank v. New England Bank. 
 
 Supreme Judicial Court of Massachusetts, 1848. 
 
 1 Gush. 177. 
 
 Wilde, J. This is an action of assumpsit ; but the founda- 
 tion of the plaintiff's claim is the alleged negligence of the 
 defendants, in not collecting certain bills left with them for 
 collection by the plaintiffs. 
 
 The defendants proved that they placed these bills in the 
 hands of the Commonwealth Bank for collection, the same 
 being payable in the city of Washington, where the defend- 
 ants had no correspondents. This, the plaintiff's counsel 
 contend, the defendants had no right to do, on the ground, 
 that an agent has no right to delegate his authority to a sub- 
 agent, without the assent of his principal. This, no doubt, is 
 generally true; but when, from the nature of the agency, a 
 sub-agent or sub-agents must necessarily be employed, the 
 assent of the principal is implied. Such was the ,nature of the 
 agency in the present case. It could not have been expected 
 that the defendants would employ one of their own officers 
 to proceed to Washington to obtain payment of the bills. 
 The bills undoubtedly were intended to be transmitted to 
 Washington for collection, and if the defendants employed 
 suitable sub-agents for that purpose, in good faith, they are 
 not liable for the neglect or default of the sub-agents. This 
 was so decided in Fabens v. Mercantile Bank, 23 Pick. 330. 
 The Chief Justice, in delivering the opinion of the Court, says : 
 " It is well settled, that when a note is deposited with a bank 
 for collection, which is payable at another place, the whole 
 duty of the bank so receiving the note, in the first instance, is 
 seasonably to transmit the same to a suitable bank or other 
 agent at the place of payment. And as a part of the same 
 doctrine, it is well settled that if the acceptor of a bill or 
 8 
 
114 ILLUSTRATIVE CASES 
 
 promisor of a note has his residence in another place, it shall 
 be presumed to have been intended and understood between 
 the depositor for collection and the bank that it was to be 
 transmitted to the place of the residence of the promisor." 
 This decision of the Court on both points is, we think, well 
 founded in principle, and supported by a decided weight of 
 authority. The only opposing decision is in the case of Allen 
 V. Merchants Bank, which was first reported in 15 Wend. 482, 
 and which was afterward removed to the Court of Errors, 
 where the judgment of the Court below was reversed by a 
 majority of the Court of Errors. This reversal is opposed to a 
 number of decisions of great authority, and is not, as we think, 
 well founded in principle. If the bank in that case acted in 
 good faith, in selecting a suitable sub-agent, where the bills 
 were payable, there seems to be no principle of justice or 
 public policy, by which the bank should be made liable for 
 the neglect or misfeasance of the sub-agent. And it is ad- 
 mitted, by Mr. Senator Verplanck, who states the grounds of 
 the reversal of the judgment, that the bank would not have 
 been liable, if there had been an understanding or agreement, 
 express or implied, that the bills were to be- transmitted to 
 another bank for collection. Now, we think, in that case, 
 as in this, there was manifestly such an understanding. 
 There is another view of that case, taken by the learned 
 Senator, in which we cannot concur. He makes no distinc- 
 tion between the neglect of the officers of the bank where 
 the bills were deposited, and that of the bank to which they 
 were transmitted for collection. We think the distinction is 
 obvious. We agree, however, with the learned Senator, that 
 the decisive question in such cases is, what was the under- 
 standing of the parties, as to the duties the collecting bank 
 undertook to perform. And as to this, we have no doubt of 
 the understanding of the parties in the present case. That 
 was, we think, that the defendants were to transmit the bills, 
 or to cause them to be transmitted, to some suitable bank or 
 ( other agent in Washington, for collection ; and the questions 
 are, whether, in employing the Commonwealth Bank to trans- 
 
IN AGENCY. 115 
 
 mit the bills, the defendants acted in good faith ; and if so, 
 whether they are responsible for the failure of that bank. 
 That the defendants acted in good faith we cannot doubt. 
 The Commonwealth Bank, at the time, was in perfectly good 
 credit, and had great facilities for obtaining payment of bills 
 and notes ■ payable in distant States. The defendants were 
 the plaintiffs' general agents, and they had no instructions ; 
 they were, therefore, to exercise their best judgment as to 
 the transmission of the bills, and the remittance of the money 
 when collected. And we see no cause to doubt that they 
 acted in good faith, and exercised a sound judgment. It 
 was objected that the defendants ought to have made re- 
 stricted indorsements ; but it is a satisfactory answer, that the 
 defendants made their indorsements in the same manner the 
 plaintiffs did. Considering, then, that the defendants acted in 
 good faith, and exercised a sound judgment in employing the 
 Commonwealth Bank, we think there is no principle of law 
 or equity which can subject them to any liability, by reason 
 of the subsequent failure of that bank. 
 
 In our opinion, the defendants' responsibility was limited to 
 
 good faith and due discretion in the choice of an ageut to 
 
 transmit the bills, and to procure a remittance of the money 
 
 when paid. This case is not distinguishable from the case 
 
 ■of Fabens v. Mercantile Bank, and the cases there cited. 
 
 We do not think that the proof of any usage is necessary 
 to support these decisions ; but in the present case, the usage 
 is well proved to have been uniform, in similar cases, ever 
 since the year 1833 or 1834, three or four years before these 
 bills were deposited in the defendant bank. 
 
 It was also proved that one bill had been transmitted in 
 like manner, by the defendants, for the plaintiffs, and re- 
 turned to them with protest, and without objection by them. 
 This was in 1836, more than a year before the bills in this 
 case were deposited. This would be sufficient notice of the 
 usage or manner in which the defendant transacted such busi- 
 ness, if any such notice were required. It seems, however, 
 that the usage of a bank is binding on all persons dealing 
 
116 ILLUSTEATIVE CASES 
 
 with the bank, whether they know of the usage or not: 
 Lincoln and Kennebeck Bank v. Page, 9 Mass. 155 ; Bank 
 of Washington v. Triplett, 1 Pet. 25. That is a point, how- 
 ever, not necessary to be decided in this case. 
 Plaintiffs non-suit. 
 
 Mechem, 195 ; Story, 14 ; Appleton Bank v. McGilvray, 4 Gray, 518 ; Buck- 
 land V. Conway, 16 Mass. 396 ; Saveland v. Green, 40 Wis. 431 ; Wilson v. 
 Smith, 3 How. (U. S.) 763. 
 
 B 
 
 CONSTRUCTION OF AUTHORITY. 
 
 1 
 
 When Written. 
 
 The authority being conferred by a written instrument, either for- 
 mal or informal, its extent must be determined by the writing itself. 
 
 Craighead v. Peterson. 
 
 New York Court of Appeals, 1878. 
 
 72 N. Y. 279. 
 
 Appeal from judgment of the General Term of the Supreme 
 Court, in the second judicial department, affirming a judgment 
 in favor of defendant entered upon a verdict, and affirming 
 an order denying a motion for a new trial. (Reported below, 
 10 Hun, 596.) 
 
 This action was brought upon two promissory notes alleged 
 to have been executed by defendant, which were made payable 
 to the order of Samuel N. Pike, plaintiff's testator, at the Park 
 National Bank. The notes were dated July 12, 1872. They 
 were in fact executed by one Abiel R. Packard, a son-in-law 
 of defendant, in the name of the latter, Packard claiming to 
 act under the following power of attorney : 
 
 " Know all men by these presents, that I, Robert Peterson, 
 of the city, county, and State of New York, have made, con- 
 
IN AGENCY. 117 
 
 stituted, and appointed, and by these presents do make, con- 
 stitute, and appoint Abiel K. Packard, of said city, my true 
 and lawful attorney for me and in my name, place, and stead 
 to draw and indorse any check or checks, promissory note or 
 notes, on any bank in the city of New York, in which I may 
 have an account, and especially in the Irving National Bank 
 of said city, and to do any and all matters and things con- 
 nected with my account in said Irving National or any other 
 bank in said city, which I myself might or could do, in relation 
 to my deposit account with said Irving National, or any other 
 bank, giving and granting unto my said attorney full power 
 and authority to do and perform all and every act and thing 
 whatsoever, requisite and necessary to be done in and about 
 the premises, as fully, to all intents and purposes, as I might 
 or could do if personally present, with full power of substitu- 
 tion and revocation, hereby ratifying and confirming all that 
 my said attorney or his substitute shall lawfully do or cause 
 to be done by virtue hereof. 
 
 ■" In witness whereof, I have hereunto set my hand and seal 
 the eighth day of October, in the year one thousand eight 
 
 hundred and sixty-nine. 
 
 " Robert Peterson, [l. s.] 
 
 " Sealed and delivered in the presence of \ 
 
 ■" The words ' promissory note or notes ' first interlined, j 
 " John S. Patterson." 
 
 Defendant had no account at the Park National Bank. The 
 Court ruled on the trial that the power of attorney conferred 
 no authority upon Mr. Packard to execute the notes — to which 
 plaintiff's counsel duly excepted. 
 
 For the purpose of showing a ratification, plaintiff gave in 
 evidence a mortgage executed by defendant to plaintiffs as 
 executors, dated January 16, 1874, containing the following 
 recital : " Whereas, the said Robert Peterson is justly indebted 
 to the said parties of the second part, in the sum of $2,000, with 
 interest, lawful money of the United States, secured to be paid 
 by his two certain promissory notes or obligation, bearing date 
 
118 ILLUSTRATIVK CASES 
 
 the 12th day of July, 1872, lawful money as aforesaid, condi- 
 tioned for the payment of the said first-mentioned sum of 
 $2,000, with interest thereon, from the date thereof and now 
 past due." 
 
 It appeared that the notes were not in fact executed in the 
 business of defendant, and that he did not receive any of the 
 avails, or in any manner any benefit therefrom. The nominal 
 title to the mortgaged property was in defendant, but Packard 
 was the real owner, he having purchased and paid for it and 
 taken title in defendant's name without his knowledge. Pack- 
 ard- was in possession, receiving the rents and profits. The- 
 mortgage, as defendant's evidence tended to show, was exe- 
 cuted at the request of Packard ; defendant at first refused to- 
 execute it, but upon being advised that the title was in his 
 name, and that it was for Packard's or his daughter's benefit, 
 and was all right, he did so. The person who presented the 
 mortgage to defendant for execution testified that he read the 
 recital to him. Defendant testified that he did not understand 
 or know that the mortgage was given to secure notes, of which 
 he was the maker. Plaintiff's counsel requested the Court to 
 direct a verdict for the plaintiff, which was denied, and said 
 counsel duly excepted. 
 
 Allen, J. The plaintiffs' testator, taking the notes in suit,, 
 made by an agent professing to represent the defendant as his 
 principal, is presumed to have known the terms of the power 
 under which the agent assumed to act. He was bound to- 
 ascertain and know the character and extent of the agency, 
 and the words of the instrument by which it was created, 
 before giving credit to the agent. If the testator dealt with 
 the agent without learning the extent of the powers delegated 
 to him, he did so at his peril, and must abide by the conse- 
 quences, if the agent acted without or in excess of his author- 
 ity : Story on Agency, § 72. If there was an ambiguity in 
 the language of the power of attorney, there is no reason why 
 in this case there should be a forced or unnatural interpreta- 
 tion of the instrument to save the testator or his representa- 
 
IN AGENCY. 119 
 
 tives from loss. The transaction was in the city of New York, 
 where as well the supposed principal, as Mr. Pike, the plain- 
 tifFs' testator, and the professed agent resided, and if the power 
 of attorney was ambiguous in its expression, or of doubtful 
 interpretation, the defendant was accessible either to make the 
 notes in person, or assent to and ratify the act of the agent. 
 There may be cases in which from necessity a party dealing 
 with ' an agent must act upon his own interpretation of the 
 authority, and take the risk of any doubtful or ambiguous 
 pliraseology. But not so here. The record is barren of evi- 
 dence as to the origin or consideration of. the notes. The 
 powers conferred upon the agent were limited, and by the 
 power of attorney as first drawn, Packard, the agent, was only 
 authorized to draw and indorse checks on any bank in which 
 the testator had an account, " and to do any and all matters 
 and things connected with his (my) account in " such banks, 
 which the principal might or could do. The last and general 
 words only gave general powers to carry into effect the special 
 purposes for which the power was given : Attwood v. Munnings, 
 7 B. & C. 278 ; Perry v. Holl, 2 DeG., F. & J. 38 ; Rossiter v. 
 Rossiter, 8 Wend. 494 ; Story on Agency, § 62. The primary 
 and special purpose of the power of attorney was to authorize 
 Packard to draw checks in the business of the principal upon 
 and against his accounts in bank, and to indorse checks prob- 
 atJly for deposit to the credit of the same accounts. The in- 
 sertion of the words " promissory note or notes," by an inter- 
 lineation after " check or checks," and before " on any bank," 
 etc., must be read with the limited and special purpose of the 
 power as first prepared in view, and not as intending to give 
 a more extended or general power. The making and indorsing 
 of promissory notes, either for discount or payable at the prin- 
 cipal's bank, was a natural adjunct of the authority given to 
 draw and indorse checks, and thus deal with and in respect 
 of the bank accounts of the testator. The dealings and busi- 
 ness relations of the testator with the banks with whom he 
 dealt, and his accounts with such banks was the subject of the 
 agency, and the instrument creating the agency restricted the 
 
120 ILLUSTRATIVE CASES 
 
 powers of the agent to the making and indorsing of com- 
 mercial instruments having an immediate connection with the 
 banks with wliich the principal had dealings, and which would 
 properly enter into his accounts with them. 
 
 The act of making the notes in suit was ultra vires, and the 
 defendant is not liable thereon. A formal instrument delegat- 
 ing powers is ordinarily subjected to strict interpretation, and 
 the authority is not extended beyond that which is given in 
 terms, or which is necessary to carry into effect that which is 
 - expressly given. They are not subject to that liberal interpre- 
 tation which is given to less formal instruments, as letters of 
 instruction, etc., in commercial transactions, which are inter- 
 preted most strongly against the writer, especially when they 
 are susceptible of two interpretations, and the agent has acted 
 in good faith upon one of such interpretations : Wood v. Good- 
 ridge, 6 Gush. 117 ; Attwood v. Mannings, supra; Hubbard v. 
 Elmer, 7 Wend. 446 ; Hodge v. Combs, 1 Black, 192. 
 
 The evidence of ratification and adoption of the acts of the 
 agent by the giving the mortgages is very slight. The evidence 
 is that the title to the property mortgaged was but nominally 
 in the defendant, having been taken in his name without his 
 knowledge, and as is to be inferred by Packard, the real owner, 
 and this mortgage with another was executed at the request, 
 and as was supposed by the defendant, for the benefit of Pack- 
 ard or his daughter, and upon transactions with wliich the 
 defendant had no connection. The reading of the recital of 
 the consideration by the gentleman who presented the mort- 
 gage to the defendant for execution at the request of Packard, 
 cannot be said to have given him an intelligent appreciation 
 of the fact recited, or the effect it would have upon the legal 
 liability of the defendant, who testified that he did not under- 
 stand or know that the mortgage was given to secure notes of 
 which he was the maker. The evidence is very decided that 
 the notes were not given in the business of the defendant or 
 for his benefit, and he has never received any benefit or derived 
 any advantage from them so far as appears. A ratification 
 under such circumstances should be the' deliberate and inten- 
 
IN AGENCY.' 121 
 
 tional act of the party sought , to be charged with the full 
 knowledge of all the circumstances : Story on Agency, § 239. 
 The jury have found upon satisfactory evidence that there has 
 been no adoption of these notes, or ratification of Packard's 
 acts by the defendant. 
 
 There was no error in the admission of evidence. All the 
 testimony offered and given by the. defendant was in respect 
 to the res gestse, and the transactions given in evidence by the 
 plaintiffs, and to disprove any connection with the making of 
 the notes, or the consideration upon and for which they were 
 made, and the relation in which lie stood to the property mort- 
 gaged, and was all competent, bearing more or less directly 
 upon the question of agency and the alleged ratification of the 
 acts of the agent. 
 
 The question to the defendant as to his intent to ratify the 
 giving the notes, was not the most appropriate interrogatory 
 to draw out the evidence sought. The intent of the act was 
 immaterial, if the defendant had deliberately and understand- 
 ingly executed a deed reciting the notes as made by him and 
 covenanting to pay them. The legal effect of such an instru- 
 ment would not be evaded by the want of an actual intent to 
 confirm the acts of the agent by whom the notes were made. 
 The answer of the witness only went to the fact that he did 
 not deliberately and understandingly execute the mortgage as 
 one given to secure these two notes as his notes past due. 
 
 There was no error upon the trial, and the judgment must 
 be aflSrmed. 
 
 Judgment affirmed. 
 
 Mechem, 294; Bishop Con. 381, 382; Wood v. Goodridge, 6 Cush. 117; 
 Hartford Fire Ins. Go. v. Wilcox, 57 111. 180 ; Loudon Savings Society v. Sav- 
 ings Bank, 36 Pa. St. 498 ; Hunt v. Eousmaniere, 1 Pet. (U. S.) 1. 
 
122 ILLUSTRATIVE CASES 
 
 When Implied. 
 
 The authority being implied from conduct and the nature of the 
 business to be accomplished, it is only limited by the necessary and 
 appropriate means of executing it and is construed liberally in favor 
 of the agent and third parties. 
 
 Williams v. Getty. 
 
 Supreme Court of Pennsylvania, 1858. 
 
 31 Pa. St. 461. 
 
 This action was originally brought before a justice of the 
 peace, by Robert Getty against David Williams, to recover for 
 the breach of the defendant's contract to employ the plaintiff's 
 team of horses and driver. The j defendant appealed to the 
 Common Pleas from the judgment of the justice. 
 
 David Williams, the defendant, was a contractor on the 
 Northwestern Railroad. During the year 1856 the work was 
 carried on by John O'Leary, who acted as his general manager. 
 
 On the 5th of May, 1856, O'Leary made a contract with 
 Getty, the plaintiff, for the labor of a two-horse team and 
 driver, in the prosecution of the work, for a period of four to 
 five months, at $3.50 per day. After working for seventeen 
 and one-half days O'Leary discharged the driver, without 
 cause, paying him for the time he had worked. The team 
 remained idle for nineteen and one-half days before the 
 plaintiff could find other employment for it. And this action 
 was brought to recover damages sustained by reason of the 
 defendant's breach of contract. 
 
 Thompson, J. The learned Judge of the Court below 
 charged that "if the principal holds the agent out to the 
 world as a general agent, in the transaction of his business, 
 any contract he would make within the scope of that business 
 would be binding on the principal, although there might be, 
 as between the principal and agent, a restriction upon the 
 general authority of the latter, if the person with whom the 
 
IN AGENCY. 123 
 
 contract was made had no notice of such restriction." And 
 that persons dealing with an agent carrying on a general 
 business, such as a general manager of a railroad contractor, 
 would not be bound to inquire into the particulars of the 
 agent's authority, when held out to the world as such general 
 agent, and particularlj' as the principal made no objections to 
 his acts, and gave no notice of a restricted authority, although 
 from time to time inspecting the progress of the work. 
 
 The plaintiff in error excepts to this, and assigns error upon 
 it, on the ground that as it had been the practice on that work 
 to employ hands by the day, it was an excess of authority in 
 the agent to employ the plaintiff below by the month. And 
 this raises the question whether the practice restricted the 
 authority of the agent, or whether, being a general agent, he 
 was within the scope of his authority in contracting for the 
 usual and ordinary means of accomplishing the business. 
 His business was to advance to completion the work under 
 his care, and this was to be done by the employment of labor- 
 ers and teamsters. This was apparent and palpable to all, and 
 being so, it is difficult to conceive of any duty resting on a 
 party about contracting to assist in the accomplishment of what 
 the agent had power to do — namely, to construct the portion 
 of the road under his charge — other than to see that he was 
 engaging to do what was usual in such business. The authority 
 of a general agent to contract is implied in the nature and 
 kind of business he has to do, and is only limited to the neces- 
 sary and appropriate means of accomplishing it. If it were 
 such a business as it was apparent would last but six rnonths 
 a contract for a year doubtless would not be binding on the 
 principal, because the party employed would be acting in bad 
 faith in undertaking when it was apparent he would not be 
 needed ; and besides, it would be equally apparent that such 
 a contract was not necessary to the accomplishment of the 
 object. So, if the business were such as would apparently 
 last for months, an employment for one or more months would 
 seem to all to be covered by the agent's implied authority, and 
 would bind. 
 
124 ILLUSTRATIVE CASES 
 
 In Addison on Contracts, 626, the point is treated distinctly 
 and briefly thus : "A foreman intrusted with the general 
 management of a trade or business has an implied general 
 authority from his employer to enter into all such contracts as 
 are usually and necessarily entered into in the ordinary con- 
 duct and management of the business ;" and he cites the case 
 of Richardson v. Cartwright, 1 Car. & Kirw. 328, of a foreman 
 of a saw-mill who took an order from the plaintiff for a large 
 quantity of Scotch fir staves, and agreed to have them ready 
 for delivery within a particular period ; it was held that his 
 principal was responsible for the non-fulfillment of the con- 
 tract, although no particular authority from the principal was 
 shown to authorize the agent to make the contract. See, also, 
 Story on Agency, §§ 55, 56, 87, 97 ; 2 Kent's Com. 793 and 
 note. 
 
 A general power implies the grant of any matter necessary 
 to its complete execution : Peck v. Harriott, 6 S. & R. 149 ; 
 17 Ohio Rep. 466. And in Scott v. Wells, 6 W. & S. 357, it 
 was held that a general agent to make sales was competent to 
 rescind a contract of sale with the consent of the other party. 
 The principle is elementary and uniform that an implied gen- 
 eral authority to transact business is only limited to the usual 
 and ordinary means of accomplishing it. This doctrine is not 
 to be confounded with that regulating special agents for limited 
 purposes. There the extent of the authority must regulate the 
 validity of the contract, and one who deals with such an agent 
 must look to that. 
 
 We think the Court was entirely accurate in that portion 
 of the charge embraced in the first and second specifications 
 of error, and that the matter complained of in the third was 
 but a corollary thereof and accurate of course. The judgment 
 must be affirmed. 
 
 Judgment affirmed. 
 
 ArniBtrong v. Railway Co., 53 Minn. 183 ; Whitehead v. Tucket, 15 East, 
 408 ; Gulick v. Grover, 33 N. J. L. 463. 
 
IN AGENCY. 125 
 
 3 
 
 "When Ambiguous. 
 
 Ambiguous instructions are construed most strongly against the 
 principal. 
 
 Minnesota Linseed Oil Co. v. Montague. 
 Supreme Court of Iowa, 1884. 
 
 65 Iowa, 67. 
 Plaintiff brought this suit to recover a sum of money 
 which it claims to have deposited with defendants, to be paid 
 out OToly on tickets issued by one Valentine, an agent of 
 plaintiff, in the purchase of flaxseed, but which defendants, 
 without authority, paid to said Valentine in payment of cer- 
 tain commissions. Defendants admit that the money was de- 
 posited with them, and that they paid it to Valentine for the 
 purpose alleged by plaintiff, but deny that such payment was 
 unauthorized, and allege that it was subsequently ratified by 
 plaintiff. Ttiere was a verdict and judgment for plaintiff, and 
 defendants appeal. The cause has heretofore been in this 
 Court. See 59 Iowa, 448. 
 
 Reed, J. I. It is alleged in the petition that the money 
 was deposited with defendants upon a parol contract that it 
 was to be paid out by them only on checks or tickets issued 
 by Valentine, on the purchase of flaxseed. On the trial, 
 plaintiff offered in evidence certain letters written by its 
 treasurer to defendants, covering remittances, and which, as 
 plaintiff claims, contained certain specifications as to the 
 manner in which the money remitted should be applied. De- 
 fendants objected to the introduction of these letters, on the 
 ground that, as plaintiff had alleged that the contract under 
 which the money was deposited with them was in parol, this 
 written evidence was immaterial and irrelevant, and that it 
 was not shown that the person who wrote them had any au- 
 thority from plaintiff to give directions as to the manner in 
 which said money should be disbursed. The objections were 
 
126 ILLUSTRATIVE CASES 
 
 overruled, and the letters were read in evidence. We held, 
 on the former appeal, that these letters were admissible. 
 There has been no change in the issues since this ruling was 
 made. The question of the admissibility of the evidence 
 arises on the second trial precisely as it did on the first. 
 When we have once definitely passed on a question in a case, 
 our practice is to reconsider our ruling thereon in that case 
 only on a rehearing, unless there have been such changes of 
 the issues, or other circumstances of the case, as raise a new 
 question as to the applicability of the former ruling to the 
 case as thus made : Adams Co. v. Burlington & M. R. R. Co., 
 55 Iowa, 94. Our former ruling on this question must there- 
 fore be regarded as final, so far as this case is concerned. 
 
 II. The original arrangement under which the money was 
 deposited with defendants was made with them by one Hark- 
 ness, as agent for plaintiff". There was a conflict in the evi- 
 dence as to the directions given by Harkness at this time as 
 to the manner in which the money should be disbursed. 
 Harkness testified that he directed defendants to pay out 
 money only on tickets issued by Valentine, which should 
 show actual purchases by him of flaxseed ; while defendants 
 both testified that the direction was that the money should be 
 paid out generally in the business of purchasing flaxseed for 
 plaintiff, in which Valentine was engaged, and that Harkness 
 informed them at that time that Valentine was to be paid a 
 commission of six cents per bushel on all the seed purchased 
 by him. The evidence shows without conflict that Valentine 
 was entitled, under his arrangement with plaintiff', to receive 
 as commissions on the purchases made by him the amount of 
 money paid him by defendants. The defendants asked the 
 Court to give the following instruction, which was refused : 
 "If the language used by plaintiff's agent in employing 
 defendants as plaintiff's disbursing agents to pay off checks 
 made by Valentine, and instructing them as to their duties 
 as such disbursing agents, was fairly capable of two construc- 
 tions or understandings, or was ambiguous in its meaning, 
 the plaintiff is bound by the understanding which his Ian- 
 
IN AGENCY. 127 
 
 guage fairly and reasonably conveyed to defendants, provided 
 defendants acted in good faith in carrying out such under- 
 standing thus fairly and reasonably conveyed to them by the 
 language of plaintiff's agent." Defendants assign the refusal 
 to give this instruction as error. The Court on its own motion 
 instructed the jury that, " If the language used by plaintiff's 
 general agent in making the arrangement with defendants 
 was ambiguous, or fairly admitted of more than one construc- 
 tion, that meaning is to be > given in which they were under- 
 stood by defendants, provided plaintiff's said general agent 
 had reason to believe they were so understood by defendants." 
 Omitting the qualification expressed in the last clause, this 
 instruction presents the rule which is embodied in the in- 
 struction asked. With the qualification, however, it presents 
 a very different rule. Under the instruction as given, defend- 
 ants would be liable if they adopted and acted on a construc- 
 tion of the instructions of which they were fairly capable, but 
 which was different from which was actually intended by the 
 agent, and he did not know that they had adopted such 
 wrong construction. This, it seems to us, would be to make 
 the innocent party suffer for the wrong or negligence of an- 
 other. If the instructions were "ambiguous, or fairly ad- 
 mitted of more than one construction," this was the fault or 
 negligence of the party who gave them, and that party ought 
 in justice to bear the consequence of such negligence,, rather 
 than the one who was deceived and misled by it. We 
 think, therefore, that the instruction should have been given 
 without the qualification : Vianna v. Barclay, 3 Cow. 281. 
 
 III. After Valentine had ceased to purchase flaxseed for 
 plaintiff, and after defendants had paid for all that he had 
 purchased, and had also paid him the money in question in 
 this case, they sent plaintiff a wHtten statement of their 
 account, showing the amounts received and disbursed by 
 them, together with a draft for the amount which was due 
 plaintiff according to the statement, and the checks or tickets 
 on which the disbursements had been made. The amount in 
 controversy had been paid Valentine on tickets which showed 
 
128 ILLUSTRATIVE CASES 
 
 on their face that the payments were made on account of his 
 commissions. These tickets were sent by defendants with the 
 statement and the other vouchers. Plaintiff's book-keeper 
 received these papers and the remittances in due course of 
 mail, and wrote defendants acknowledging the receipt thereof; 
 and no question was made as to the payment to Valentine of 
 his commissions for about four months from the time the 
 remittance and vouchers were received by plaintiff. The 
 book-keeper testified that when he received the statement of 
 account and vouchers he placed them in a safe, where they 
 remained, without being examined or compared, for four 
 months. They were then examined by Harkness, the agent 
 who made the arrangement originally with defendants, and, 
 when it was discovered that the payments had been made to 
 Valentine, this suit was instituted. 
 
 The defendants requested the Court to give the following 
 instruction : " If the defendants were employed by the plain- 
 tiff to disburse plaintiff's money under plaintiff's instructions, 
 and afterward, when the business was supposed to be closed, 
 the defendants wrote a letter and sent a- full statement to 
 plaintiff of their doings ,as such disbursing agents, it was 
 plaintiff's duty, as defendants' principal, to examine said re- 
 port in reasonable time, and, if it disapproved of defendants' 
 acts, to answer the letter, or otherwise notify defendants, ex- 
 pressing its dissent ; and, if plaintiff failed to db so in a rea- 
 sonable time after receiving their report, plaintiff will be 
 deemed to approve the acts of defendants as its agents, and 
 silence would amount to a ratification of the acts so reported." 
 The Court refused to give this instruction ; but, as the same 
 doctrine is fairly expressed in one of the instructions given by 
 the Court on its own motion, defendants have no ground of 
 exception because of such refusal. But the Court, in addition 
 to the instruction just referred to, gave the following : " Before 
 a principal is bound by the unauthorized act of an agent, it 
 must appear that a full knowledge of the act done by the 
 agent has come to the principal, and that the principal has, 
 either expressly or by unreasonable delay in making objec- 
 
IN AGENCY. 129 
 
 tioQS thereto, ratified the same. If the objection was not 
 made in a reasonable time after knowledge of the act, the act 
 is thereby ratified. What constitutes reasonable time in such 
 cases depends upon the nature and character of the matter to 
 which the time relates, and the circumstances attendant upon 
 or surrounding the persons and transactions involved, the 
 ordinary course of business between the parties, and the cus- 
 toms of trade and business to which the matter to be ratified 
 relates. A reasonable time is such as an ordinarily reasona- 
 ble and prudent person, under the same or similar circum- 
 stances, would deem it necessary and proper to act in ; and a 
 failure to so act in such reasonable time is unreasonable delay. 
 The jury must determine, if they find that the payments in 
 controversy were not prior thereto authorized by plaintifi^, 
 whether such payments were brought to plaintiff 's knowledge 
 afterward, and, if so, whether they were objected to by plain- 
 tiff, with notice thereof to defendants, within a reasonable time 
 after knowing of the payments." The giving of this is 
 assigned as error. 
 
 In the former instruction, the jury are told in efiect that, if 
 plaintiff failed to object to the payments to Valentine within a 
 reasonable time after the statement and vouchers were sent to 
 it by defendants and received by it, its delay in this respect 
 should be treated as a ratification of the payments, and would 
 defeat a recovery ; while the doctrine of the latter instruction 
 is that such silence would not amount to a ratification of the 
 payments, unless it had full knowledge at the time that they 
 had been made. These propositions are inconsistent. Plain- 
 tiff did not have full knowledge that the payments had been 
 made until the statements of account and vouchers were ex- 
 amined and compared by Harkness, which was four months 
 after it received them. And we think that, while the latter 
 instruction may be correct as an abstract proposition, it re- 
 quires some qualification to make it applicable to the facts of 
 this case. When plaintiff received the statement of account 
 and vouchers, it knew, of course, to what they related. It was 
 entitled to a reasonable time after their receipt within which 
 9 
 
130 ILLUSTRATIVE CASES 
 
 to examine and compare them. But, if it neglected to do this 
 within a reasonable time, its neglect in this respect ought to 
 be treated as amounting to a ratification of what has been 
 done. When defendants sent the statement of account, they 
 had the right to expect that it would receive attention within 
 a reasonable time, and that what they had done would be dis- 
 approved, if at all, within such time. What would be a reason- 
 able time is, of course, a question of fact for the jury, as we held 
 on the former appeal. But if plaintiff neglected to examine 
 and compare the account and disapprove these payments 
 within a reasonable time, it ought not to be heard to say that 
 it was not fully informed as to the facts, and that its silence 
 for that reason should not be treated as amounting to a ratifi- 
 cation of said payments: Story Ag., § 258; Bell v. Cunning- 
 ham, 3 Pet. 69 ; Cairnes v. Bleecker, 12 John. 300 ; Vianna v. 
 Barclay, 3 Cow. 281. 
 
 For the errors pointed out the judgment of the District 
 Court is reversed, and the cause will be remanded for a new trial. 
 
 Reversed. 
 
 Mechem, 484 ; Vianna v. Barclay, 3 Cow. 281 ; Bessent v. Harris, 63 N. 0. 
 542 ; National Bank v. Merchants' Bank, 91 U. S. 92. 
 
 4 
 When Authority Is of a Certain Kind. 
 To Sell Personal Property. 
 Mere possession of property does not confer authority to 
 sell it. 
 
 Levi V. Booth, 58 Md. 305. 
 
 A clerk behind the counter is authorized to receive payment 
 at the time of sale. 
 
 Hirshfleld v. Waldron, 54 Mich. 649. 
 
 But the mere possession of a bill, though the bill is made 
 
 out on the principal's billhead, does not imply this authority. 
 
 Hirshfleld v. Waldron, 54 Mich. 649 ; Kornemann v. Monaghan, 24 
 Mich. 36. 
 
IN AGENCY. 131 
 
 A traveling salesman has no implied authority to sell his 
 samples. 
 
 Kohn V. Washer, 64 Tex. 131. 
 
 An agent enjoying authority to sell the goods in his posses- 
 sion has the implied authority to warrant their being of the 
 quality and condition of similar property so sold. 
 
 Ahern v. Goodspeed, 72 N. Y. 108 ; Pickert v. Marston, 68 Wis. 465 ; 
 Deering v. Thorn, 29 Minn. 120 ; Aster v. Micklet, 35 Minn. 245. 
 
 To Sell Real Estate. 
 
 The presumption is always in favor of a cash sale, so one 
 authorized to sell cannot sell on credit. 
 Carson v. Smith, 5 Minn. 78. 
 
 One authorized to sell can receive as much of the purchase 
 price as is to be paid down, but one authorized to execute a 
 contract of sale enjoys no such authority. 
 Mann v. Robinson, 19 W. Va. 49. 
 
 A power to sell does not carry with it a power to mortgage. 
 Jeflfrey v. Hursh, 49 Mich. 31. 
 
 An authority to sell real estate in lots " as surveyed " does 
 not authorize the sale of the whole tract for a gross sum. 
 Eice V. Tavernier, 8 Minn. 248. 
 
 One authorized to make the purchase price payable at a 
 certain time cannot make it payable on or before that time. 
 ' Jackson v. Badger, 35 Minn. 52. 
 
 An authority to sell land " immediately " does not authorize 
 a future sale. 
 
 Matthews «.Sowle, 12 Neb. 398. 
 
 The authority to sell real estate carries with it the authority 
 to execute all instruments necessary to complete the sale. 
 
 Ballantine v. Piper, 22 Pick. 85 ; Farnham v. Thompson, 34 Minn. 330. 
 
132 ILLUSTRATIVE QASES 
 
 To Make and Indorse Commercial Paper. 
 This authority is always strictly construed and can only be 
 conferred by the use of the clearest terms. 
 
 Bickford v. Menier, 107 N. Y. 490 ; Rossiter v. Rossiter, 8 Wend. 494 ; 
 Turner v. Keller, 66 N. Y. 66 ; Webber v. Williams College, 23 Pick. 302. 
 
 An authority to make and indorse paper to a certain amount 
 will be limited to that amount, and if permitted with one bank- 
 ing house it will not impliedly extend to others. 
 Citizens' Savings Bank v. Hart, 32 La. An. 22. 
 
 An authority to issue bonds does not carry with it an im- 
 plied authority to issue commercial paper. 
 School Directors v. Steppe, 54 111. 287. 
 
 Authority to Purchase. 
 One authorized to purchase on credit has no implied authority 
 to bind his principal on notes issued in payment for the pur- 
 chases. 
 
 Webber v. Williams College, 23 Pick. 302. 
 
 One authorized to purchase a specific thing can exercise no 
 discretion. 
 
 DavJes v. Lyon, 36 Minn. 427. 
 
 One intrusted with funds to make a purchase cannot pur- 
 chase on credit, and if instructed to buy within certain limits 
 he must buy within those limits. 
 
 Komorowski v. Krumdick, 56 Wis. 23 ; Olyph&nt v. McNair, 41 Barb. 446. 
 
 Authority to Receive Payment. 
 
 One authorized to collect and receive payment cannot com- 
 promise the claim. 
 
 Woodbury v. Larned, 5 Minn. 339 ; Robinson v. Anderson, 106 Ind. 162 ; 
 Baird v. Randall, 58 Mich. 175. 
 
 The agent has implied authority to give the debtor such 
 receipt' as he is entitled to in law. 
 Padfleld v. Green, 85 111. 529. 
 
IX AGENCY. 133 
 
 If securities are left in the hands of an agent an implied 
 authority arises to receive' payment on them, except that, when 
 the security consists in a. note to the principal's order- unin- 
 dorsed by him, no such implied authority arises. 
 
 Purdy V. Huntington, 42 N. Y. 334 ; Cooley v. Willard, 34 111. 68. 
 
 An authority to negotiate the contract does not carry with 
 it authority to receive payment under the contract. 
 Thompson v. Elliott, 73 111. 221. 
 
 One authorized to receipt for the interest is not authorized 
 to receipt for the principal. 
 
 Doubleday v. Cross, 50 N. Y. 410. 
 
 c 
 
 MANNER OF EXECUTION. 
 
 1 
 
 In General. 
 
 The execution must be such as the authority demands, and where 
 there has been a complete esiecution of authority and something 
 more added not authorized, the execution is good and only the excess 
 void ; but -when there is not a complete execution of authority, or 
 'Where the lines between the authorized act and the excess are not 
 ^distinguishable, the whole is bad. 
 
 Thomas v. Joslin. 
 Supreme Court of Minnesota, 1883. 
 
 30 Minn. 388. 
 
 Berry, J. This action is brought to enforce specific per- 
 formance of an agreement to sell and convey certain land, 
 alleged to have been executed by Whitney, as agent of defend- 
 ant, by whom the land was owned. 
 
 1. As to the fact of agency, we are of opinion that the let- 
 ters introduced upon the trial, and which compose all the evi- 
 dence in the premises, constitute Whitney defendant's agent to 
 sell the land for |2,500 cash, subject to Miller's lease, and for 
 
134 ILLUSTRATIVE CASES 
 
 a compensation of $50. They do not purport to be a contract 
 directly with the plaintiff, the alleged vendee, to sell to him,, 
 but an authority to Whitney to enter into a contract of sale 
 with some one. 
 
 2. The seal which Whitney affixed to the agreement was 
 unauthorized, because Whitney's authority to sell was not under 
 seal ; but it may be rejected as a separable excess of authority,, 
 and the agreement stand as a simple contract : Dickerman v. 
 Ashton, 21 Minn. 538 ; Long v. Hartwell, 34 N. J. Law, 116 ;, 
 Lawrence v. Taylor, 5 Hill, 107. 
 
 3. The agreement executed assumes to bind defendant to 
 convey the land " in fee simple, and with a perfect title, free 
 from all incumbrances." This is in excess of the authority 
 conferred upon Whitney to make a sale subject to the Miller- 
 lease. " Where there is a complete execution of a power, and 
 something ex abundanti added, which is improper, there the 
 execution shall be good, and only the excess void ; but where 
 not a complete execution of a power, where the boundaries be- 
 tween the excess and execution are not distinguishable, it will 
 be bad:" Alexander u Alexander, 2 Ves. 640, 644; Ewell's 
 Evans on Agency, 170 ; Story on Agency, §§ 165-168 ; Sug- 
 
 ' den on Powers, c. 9, § 2. The instrument executed by Whit- 
 ney is not an agreement for a sale and conveyance subject to 
 the Miller lease, with something superadded in excess of Whit- 
 ney's authority, in which case the excess might be rejected, and 
 the rest of the agreement sustained. But the thing ostensibly 
 contracted for is entirely different from that authorized, and 
 therefore the purported agreement is not " a complete execution 
 of the power," and, by consequence, not the agreement of 
 Whitney's constituent, the defendant. Upon the facts as they 
 now appear, the agreement is, therefore, under the rule above 
 enunciated, bad and not enforceable. 
 Order affirmed. 
 
 Alexander v. Alexander, 2 Ves. 640 ; Mechem, 416 ; Story, 165-168 ; Sug- 
 den on Powers, eh. 9, | 2 ; Dickerman v. Ashton, 21 Minn. 538 ; Long v. 
 Hartwell, 3-t N. J. L. 116; Lawrence v. Taylor, 5 Hill, 107; Eeed v. Seymour, 
 24 Minn. 273. 
 
IN AGENCY. 135 
 
 2 
 
 Specialties. 
 
 In the execution of sealed instruments they should be made, signed, 
 and sealed in the name of the principal. 
 
 Beinley v. Mann. 
 
 Supreme Judicial Court of Massachusetts, 1848. 
 
 2 Gush. 337. 
 
 Metcalp, J. The demanded premises were formerly the 
 property of the New England Silk Company, a body corporate, 
 and the demandants claim title thereto under levies of two 
 executions against that company. We see no valid objection 
 to either of those levies. The delay in completing the levy of 
 the first execution was ,warranted by the Rev. Sts. c. 97. The 
 appraisement of the undivided fractional part of the estate, 
 which was set off on the second execution, was all that the law 
 required of the appraisers. The objections to these levies were 
 therefore rightly overruled by the Judge at the trial, and he 
 rightly instructed the jury that the demandants had a prima 
 facie title to the premises demanded in this suit. 
 
 The tenant also claims title under the Silk Company, 
 through two deeds made to James B. Colt before the demand- 
 ants levied upon or attached the demanded premises, and a_ 
 deed from Colt to Humphrey, who was the tenant's immediate 
 grantor. On examining the deeds to Colt, we are of opinion 
 that they conveyed no title to him. It is a rule of convey- 
 ancing, long established, that deeds 'which are executed by an 
 attorney or agent must be executed in the name of the con- 
 stituent or principal. In Combes's Case, 9 Co. 76 b, it was 
 resolved " that when any has authority, as attorney, to do any 
 act, he ought to do it in his name who gives the authority ; 
 for he appoints the attorney to be in his place and to represent 
 his person, and therefore the attorney cannot do it in his own 
 name nor as his proper act, but in the name and as the act of 
 
136 ILLUSTRATIVE CASES 
 
 him who gives the authority." And in Fowler v. Shearer, 7 
 Mass. 19, Parsons, C. J., says: "It is not enough for the 
 attorney, in the form of the conveyance, to declare that he 
 does it as attorney ; for he being in the place of the principal, 
 it must be' the act and' deed of the principal, done and exe- 
 cuted by the attorney in his name." This doctrine, which 
 was applied in El well v. Shaw, 16 Mass. 42, and in other 
 cases cited by the demandants' counsel, and also in Berkeley 
 V. Hardy, 8 Dowl. & Ryl. 102, must be applied to the deeds 
 now before us. Both of these deeds were executed by C. Colt, 
 Jr., in his own name, were sealed with his seal, and were 
 acknowledged by him as his acts and deeds. In one of them, 
 it is true, he declared that he acted in behalf of the company 
 and as their treasurer ; and in the other he declared himself to 
 be their treasurer and to be duly authorized for the purpose of 
 executing it. But this, as we have seen, was " not enough." 
 He should have executed the deeds in the name of the com- 
 pany. He should also have affixed to them the seal of the 
 compan}'^, and have acknowledged them to be the deeds of 
 the company : 1 Crabb on Real Property, §§ 703, 705 ; 4 Kent 
 Com. (3d ed.) 451 ; Stinchfield v. Little, 1 Greenl. 231 ; Sav- 
 ings Bank v. Davis, 8 Conn. 191 ; 3 Stewart on Conveyancing, 
 189. If the deeds had been rightly executed in other respects, 
 the seal which C. Colt, Jr., affixed to each of them — namely, a 
 wafer and a paper, without any stamp or impression — might 
 have been regarded as the seal of the company, according to 
 the decisions in Mill Dam Foundry v. Hovey, 21 Pick. 417, and 
 Reynolds v. Glasgow Academy, 6 Dana, 37. 
 
 The case of Warner v. Mower, 4 Verm. 385, cited by the ten- 
 ant's counsel, was decided upon a statute of Vermont, which 
 authorizes certain corporations to convey real estate by a deed 
 of their president, sealed with his seal. The Court, in that 
 case, admitted that " the form of the deed, at common law, 
 would not, probably, be considered good." 
 
 As nothing passed to James B. Colt by the deeds of October, 
 1844, and June, 1845, he could not convey any title to Hum- 
 phrey nor Humphrey to the tenant. We therefore need not 
 
IN AGENCY. 137 
 
 examine the other objections to the tenant's title, which were 
 raised and argued by the counsel for the demandants. 
 Judgment on the verdict. 
 
 4 Kent Comm. (3d Ed.), 451 ; Stinchfleld v. Little, 1 Greenl. (ile.) 231 ; 
 Savings Bank v. Davis, 8 Conn. 191 ; Mill Dam Foundry v. Hovey, 21 Pick. 
 417 ; Mechem, 419. 
 
 3 
 
 Simple Contracts. 
 
 In the execution of simple contracts the agent should not only 
 name the principal but he must express by some form of wotds that 
 the writing is the act of the principal. 
 
 Tucker Mfg. Co. v. Fairbanks. 
 
 Supreme Judicial Court of Massachusetts, 1867. 
 
 98 Mass. 101. 
 
 Contract against David Fairbanks <S; Co. as drawers of the 
 following bill of exchange: " Boston, March 23, 1866. $4,469.76. 
 Two months after date pay to the order of Messrs. Hiram Tucker 
 & Co. $4,469.76, value received, and charge the same to account 
 of "David Fairbanks & Co., 
 
 "Agts. Piscataqua F. & M. Ins. Co. 
 
 " To Piscataqua F. & M. Ins. Co., So. Berwick, Me." 
 
 Across the face of the draft was written, "Accepted for the 
 Treasurer, David Fairbanks, President;" and on the back, 
 " Payable in Boston, Hiram Tucker & Co." 
 
 Trial by jury was waived, and the case heard by Foster, J., 
 who found the following facts : The signatures of all the parties 
 to the bill were proved or admitted. It was actually made and 
 delivered to the officers of the plaiiltiflF corporation, and accepted 
 by them on the 3d of April, 1866, in payment and satisfaction 
 of the amount of a loss by fire, due on a policy of insurance 
 effected by Hiram Tucker & Co. in the Piscataqua Fire and 
 Marine Insurance Company, which had been ascertained on 
 the 23d of March, and was payable sixty days afterward, and 
 
138 ILLUSTRATIVE CASES 
 
 had been assigned by Hiram Tucker & Co. to the plaintiffs on 
 the 26th of March. The plaintiffs had full knowledge of all 
 the circumstances under which the bill was made. The insur- 
 ance company, at the time of delivering it, took from the 
 plaintiffs' treasurer this receipt : " Piscataqua Fire and Marine 
 Ins. Co., Treasurer's Office, So. Berwick, Me., April 3, 1866. 
 $4,469.76. Received of the Piscataqua Fire and Marine 
 Insurance Company $4,469.76, in full for loss and damage to 
 my property by fire on the 19th of March, 1866, insured by 
 policy No. 16,907 in said company. Tucker Manufacturing 
 Co. R- S. Fay, Treas." 
 
 No evidence was offered of any fraud attending the making 
 of the bill. The defendants offered parol evidence tending to 
 show that it was not expected or intended that they should be 
 liable on the bill, that it was given only to settle the loss, and 
 was supposed and expected by both parties to create a debt 
 against no one but the insurance company. But the Judge ex- 
 cluded such evidence, and held that the question of the defend- 
 ant's liability must be determined by the instrument itself. 
 
 The insurance company were a corporation established by the 
 laws of Maine, having their office at South Berwick in that 
 State. The bill was never presented to them there for accept- 
 ance, and no regular notice of its non-payment was given to the 
 defendants. The defendants had no funds in the hands of the 
 insurance company when the bill was made or ever afterward. 
 It was proved that the draft was made and delivered in Boston 
 at the office of the defendants, who were the general agents of 
 the insurance company, and one of them, David Fairbanks, its 
 president, and the agent appointed to receive service of process 
 in Massachusetts, under the Gen. Sts. c. 58, § 68 ; that at the 
 time of its execution one of the defendants was asked where it 
 would be paid, and replied "in Boston," and requested the 
 plaintiff to keep it there and not send it to Maine for collec- 
 tion ; that before it came due one of the defendants told the 
 plaintiff that it would not be paid at maturity, but he hoped 
 it would be paid eventually ; that on the last day of grace the 
 defendants were informed by the plaintiff that it was in the 
 
IN AGENCY. 139 
 
 Union Bank in Boston, and one of them answered that it 
 would not be paid. 
 
 Upon these facts the-presiding Judge found that due present- 
 ment and notice had been waived by the defendants; and 
 reserved the question, whether the facts warranted this find- 
 ing, whether the defendants were liable personally as drawers 
 on the face of the bill, and whether the parol evidence offered 
 by them should be received, for the consideration of the full 
 Court, according to whose opinion judgment was to be entered 
 for the plaintiff, or for the defendant, or a new trial ordered. 
 
 Gray, J. 1. The facts proved at the trial were amply suffi- 
 cient to warrant the finding that presentment for acceptance 
 and notice of non-payment had been waived. The defendants 
 knew that the bill would not be paid at maturity, and so in- 
 formed the plaintiffs ; and the plaintiffs had the right to rely 
 upon the information so received and omit a useless ceremony 
 which could be of no benefit to themselves or to the defendants : 
 Brett V. Levett, 13 East, 213 ; Barker v. Parker, 6 Pick. 80 ; 
 Spencer v. Harvey, 17 Wend. 489. 
 
 2. It is equally clear that the liability of the defendants as 
 drawers of a negotiable instrument must be determined from 
 the instrument itself. This is too well settled to admit of dis- 
 cussion. There is no distinction in this respect between the 
 drawer of a bill of exchange and the maker of a promissory 
 note : Bank of British North America v. Hooper, 5 Gray, 567 ; 
 Bass V. O'Brien, 12 Gray, 481 ; Slawson v. Loring, 5 Allen, 342 ; 
 Barlow v. Congregational Society in Lee, 8 Allen, 460 ; Arnold 
 V. Sprague, 34 Verm. 402 ; Met. Con. 108. 
 
 3. The question whether the defendants are liable upon the 
 face of the bill requires more consideration. The difficulty is 
 not in ascertaining the general principles which must govern 
 cases of this nature, but in applying them to the different forms 
 and shades of expression in particular instruments. In order 
 to exempt an agent from liability upon an instrument executed 
 by him within the scope of his agency, he must not only name 
 his principal, but he must express by some form of words that 
 the writing is the act of the principal, though done by the hand 
 
140 ILLUSTRATIVE CASES 
 
 of the ageiit. If he expresses this, the. principal is bounds and 
 the agent is not. But a mere description of the general relar 
 tion or office which the person signing the paper holds to 
 another person or to a corporation, without indicating that the 
 particular signature is made in the execution of the office and 
 agency, is not sufficient to charge the principal or to exempt 
 the agent from' personal liability. Amid the great variety of 
 language which may be used by merchants in haste or 
 thoughtlessness, ignorant or unmindfui of legal rules, or not 
 anticipating the importance of holding one party rather than 
 the other responsible, it must often happen that cases fall very 
 near the dividing line ; and, in order to maintain uniformity 
 of decision, it is necessary for the Court to refer to the cases 
 already adjudicated, especially within its own jurisdiction. 
 
 The authority which at first sight seems most strongly to 
 support the position of the defendants is that of Ballon v. 
 Talbot, 16 Mass. 461, in which a note signed "Joseph Talbot, 
 agent for David Perry," was held not to bind Talbot personally; 
 That case has since been recognized and followed in this Com- 
 monwealth : Jefts V. York, 4 Gush. 372 ; Page v. Wight, 14 
 Allen, 182. But the important and effective word in Ballon v. 
 Talbot was not the word " agent," nor the name of the princi- 
 pal, but the connecting word "for," which might indeed 
 indicate merely the relation which the agent held to the prin- 
 cipal ;. but which was equally apt to express the fact that tlie 
 act was done in behalf of the principal, in the same manner as 
 if the words had been transposed thus : " For David Perrv, 
 Joseph Talbot, agent." See Deslandes v. Gregory, 2 El. & El. 
 602. This is made manifest by considering that if the word 
 " agent " had been wholly omitted, and the form of the signa- 
 ture had been simply " Joseph Talbot,, for David Perry," or 
 "for David Perry, Joseph Talbot," it would have been well 
 executed as the contract of the principal, even if it had been 
 under seal, and of course not less so in the case of a simple 
 contract: Long v. Colburn, 11 Mass. 97; Emerson v: Provi- 
 dence Hat Manufacturing Co., 12 Mass. 237 ; Mussey v. Scott, 
 7 Cush. 215; Met. Con. 105, 110. 
 
 On the other hand, in Hills v. Bannister, 8 Cowen, 31, a note 
 
IN AGENCY. 141 
 
 signed by two persons, with the addition " Trustees of Union 
 Religious Society, Phelps " (who were a legal corporation), was 
 held to bind the signers personally ; and in Barker v. Me- 
 chanic Insurance Co., 3 Wend. 94, a note signed "John 
 Franklin, President of the Mechanic ,Fire Insurance Com- 
 pany," was held on demurrer not to be the note of the 
 company, although alleged to have been made within the 
 authority of the president and the scope of the legitimate 
 business of the corporation ; the Court saying : " In this case, 
 there is an averment that the president was lawfully authorized ; 
 but it does not appear that he acted under that authority ; he 
 does not say that he signs for the company ; he describes him- 
 self as president of the company, but to conclude the company 
 by his acts he should have contracted in their name, or at least 
 on their behalf." The variation between the words " for " and 
 " of " seems at first view slight ; but in the connection in 
 which they are used in signatures of this kind the difference is 
 substantial. "Agent of" or "president of" a corporation 
 named simply designates a personal relation of the individual 
 to the corporation. "Agent for" a particular person or cor- 
 poration may designate either the general relation which the 
 person signing hands to another party, or that the particular 
 act in question is done in behalf of and as the very contract 
 of that other ; and the Court, if such is manifestly the inten- 
 tion of the parties, may construe the words in the latter sense. 
 But even " agent for " has been held under some circumstances 
 a mere descriptio personae of the agent, as in De Witt v. Walton, 
 5 Shelden, 570, in which the name following these words was 
 not the proper name of the principal, but the name of a news- 
 paper which the agent carried on in the principal's behalf, and 
 a note signed " David Hoyt, agent for The Churchman" was 
 held to be the note of Hoyt and not of his principal ; and in 
 Shattuck V. Eastman, 12 Allen, 369, in which it was held that 
 a paper in the form of a receipt, signed " Robert Eastman, 
 Agent for Ward 6, Lowell, Mass.," if executed under such cir- 
 cumstances as to amount to a contract, might be binding on 
 the agent personally. In Fiske v. Eldridge, 12 Gray, 474, in 
 
142 ILLUSTRATIVE CASES 
 
 a careful review of the cases by Mr. Justice Dewey, the New 
 York decisions above mentioned were quoted with approval, 
 and a note signed "John T. Eldridge, Trustee of Sullivan 
 Railroad," was held to be the personal note of Eldridge. In 
 Haverhill Insurance Co. v. Newhall, 1 Allen, 130, a note 
 signed " Cheever Newhall, President of the Dorchester Avenue 
 Eailroad Company," was held to bind Newhall personally, 
 although given by him to an insurance company (as was 
 expressed in the note itself) in consideration of a policy issued 
 to the railroad corporation, which he was in fact authorized to 
 obtain and sign the note for. See, also, FuUam v. West Brook- 
 field, 9 Allen, 1 ; Morell v. Codding, 4 Allen, 403 ; Tanner v. 
 Christian, 4 El. & Bl. 591; Parker v. Winslow, 7 El. &^B1. 
 942 ; Price v. Taylor, 5 H. & N. 540 ; Bottomley v. Fisher, 1 
 H. & C. 211. 
 
 This case is not distinguishable from those just stated. It 
 differs from Ballou v. Talbot, in omitting the word " for " (the 
 only evidence, contained in the note there sued on, that it was 
 made in behalf of the principal), leaving the words "Agts. Pis- 
 cataqua F. & M. Ins. Co." as a mere description of the persons 
 signing this bill. The cases of Mann v. Chandler, 9 Mass. 335 ; 
 Despatch Line of Packets v. Bellamy Manufacturing Co., 12 
 N. H. 205, and Johnson v. Smith, 21 Conn. 627, cannot avail 
 the defendants against the later decisions of this Court. See 
 12 Gray, 476 ; 8 Allen, 461, 462. The name of the principal 
 does not appear in the body of the bill. The address of the 
 bill to the corporation and the request to them to charge the 
 amount to the account of the drawers have certainly no ten- 
 dency to show that the drawers are the same as the corpora- 
 tion, the drawees. The fact that the bill was delivered to the 
 plaintiffs by the insurance company, as shown by the contem- 
 poraneous receipt, does not make it the less the promise of the 
 signers. The defendants must therefore be held personally 
 responsible as the drawers of the bill. 
 
 Judgment for the plaintiffs. 
 
 Pratt V. Beaupre, 13 Minn. 187 ; Fowler v. Atkinson, 6 Minn. 578 ; Mayhew 
 V. Prince, 11 Mass. 54 ; New Marlcet Savings Bank v. Gillet, 100 111. 254. 
 
IN AGENCY. 143 
 
 III 
 
 OF THE EIGHTS AND DUTIES OF THE 
 PAETIES TO THE CONTEACT. 
 
 A 
 DUTIES OF THE AGENT TO THE PRINCIPAL. 
 
 1 
 
 Good Faith. 
 The agent owes good faith to his principal. 
 
 Hegenmyer v. Marks. 
 
 Supreme Court of Minnesota, 1887. 
 
 37 Minn. 6. 
 
 GiLFiLLAN, C. J. The plaintiff owned a lot of land in 
 Minneapolis. One Creigh was a real estate broker, and at his 
 request she employed and authorized him to sell the lot to 
 any one who would purchase it at such sum as would net her 
 $1,050, Creigh to receive as his compensation whatever he 
 could get for the lot in excess of $1,050. At the time of such 
 employing he (believing it to be true) represented to her, and 
 she believed, that $1,050 was the fair market value of the lot. 
 Both of them supposed the lot to be entirely vacant ; but a 
 third person, owning the adjoining lot, had by mistake con- 
 structed on her lot, thinking it was his, a valuable house and 
 barn in such manner that they were part of the realty. 
 Neither plaintiff nor Creigh knew anything of this at the time 
 of employing. With the buildings the lot was worth over 
 $3,000. Creigh learned of it before making a^ sale, but did 
 not disclose it to plaintiff. He sold the lot to defendant for 
 $1,160, the latter knowing of the buildings on the lot and 
 knowing that Creigh knew and that plaintiff was ignorant 
 
144 ILLUSTRATIVE CASES 
 
 of the fact. Of the |1,150, $450 was paid in cash — plaintiff 
 receiving $350 and Creigh $100 — and $700 was secured by 
 defendant's note to plaintiff and his mortgage on the lot. 
 Upon learning of the facts plaintiff tendered to defendant the 
 $350, with interest, and the note and mortgage, and demanded 
 a reconveyance of the lot, which defendant refused. The ac- 
 tion is to rescind the sale and conveyance. The Court below 
 decided in favor of plaintiff. 
 
 The decision of the Court below proceeds on the propositions : 
 First, that it was the duty of Creigh, upon learning of the 
 buildings being upon the lot, to communicate that fact to 
 plaintiflF, and that by selling the lot without disclosing that 
 fact, at a price which he knew she had put upon it in igno- 
 rance of that fact, he • committed a fraud upon her ; and, 
 second, that defendant, by purchasing with notice of Creigh's 
 fraud, became a party to it. If the first proposition be correct 
 the second follows as a necessary consequence. 
 
 The case turns upon whether it was the duty of Creigh, be- 
 fore making a sale, to disclose what he had learned to his 
 principal. Upon this contract of agency my brethren are of 
 opinion (though it is not mine) that when Creigh learned a 
 fact affecting the value of the property, and of which fact he 
 knew she was ignorant when she fixed the price, and if he 
 had reason to believe that, had she known the fact, she would 
 have fixed a higher price (as in this case .she undoubtedly 
 would), then good faith toward his principal required of him, 
 and it was his legal duty, to disclose the fact to her before he 
 proceeded to sell, so that she might, if so disposed, fix the 
 selling price in accordance with the actual condition of things. 
 This being so, his selling upon the basis of the price first fixed, 
 without disclosing to her the fact he had learned was of course 
 a fraud on her. 
 
 - The tender was sufficient. Defendant and Creigh were 
 parties to the fraud on plaintiff, by which Creigh, one of the 
 parties, received (in effect) from defendant, the other party to 
 it, $100. No consideration of equity or morality would re- 
 quire of the plaintiff to make that good either to Creigh or 
 
IN AGENCY. 145 
 
 defendant. All that can be required of her as a condition of 
 her repudiating the transaction imposed on her by the fraud 
 of Creigh and defendant is to restore what (in ignorance of the 
 facts) she received in the transaction. 
 Judgment affirmed. 
 
 Cock V. Van Etten, 12 Minn. 522 ; Farrand v. Hurlbut, 7 Minn. 477 ; Rose 
 V. Hayden, 35 Kan. 106 ; Friesenhahn o. Bushnell, 47 Minn. 443 ; Russell v. 
 Bradley, 47 Kan. 438 ; Geisinger v. Beyl, 80 Wis. 443. 
 
 2 
 
 Obedience to Instructions. 
 
 The agent must obey all la^vful instructions. 
 
 Laverty v. Snethen. 
 
 New York Court of Appeals, 1877. 
 
 68 N. Y. 522. 
 
 Church, C. J. The defendant received a promissory note 
 from the plaintiff made by a third person and indorsed by the 
 plaintiff, and gave a receipt therefor, stating that it was received 
 for negotiation, and the note to be returned the next day or the 
 avails thereof. The plaintiff testified in substance that he told 
 the defendant not to let the note go out of his reach without 
 receiving the money. The defendant, after negotiating with 
 one Foote about, buying the note, delivered the note to him 
 under the promise that he would get it discounted, and return 
 the money to defendant, and he took away the note for that 
 purpose. Foote did procure the note to be discounted, but 
 appropriated the avails to his own use. 
 
 The Court charged that if the jury believed the evidence of 
 the plaintiff in respect to instructing the defendant not to part 
 with the possession of the note, the act of defendant in deliver- 
 ing the note, and allowing Foote to take it away, was a con- 
 version in law, and the plaintiff was entitled to recover. The 
 exception has been criticised as applying to two propositions, 
 one of which was unobjectionable, and therefore not available. 
 10 
 
146 ILLUSTRATIVE CASES 
 
 Although not so precise as is desirable, I think that the ex- 
 ception was intended to apply to the proposition above stated, 
 and was sufficient. 
 
 The question as to when an agent is liable in trover for 
 conversion is sometimes difficult. The more usual liability of 
 an agent to the principal is an action of assumpsit or what 
 was formerly termed an action on the case for neglect or 
 misconduct, but there are cases when trover is the proper 
 remedy. Conversion is defined to be an unauthorized assump- 
 tion and exercise of the right of ownership over goods 
 belonging to another, to the exclusion of the owner's rights. 
 A constructive conversion takes place when a person does such 
 acts in reference to the goods of another as amount in law to 
 appropriation of the property to himself. Every unauthor- 
 ized taking of personal property, and all intermeddling with 
 it, beyond the extent of the authority conferred, in case a 
 limited authority has been given, with intent so to apply and 
 dispose of it as to alter its condition or interfere with the 
 owner's dominion, in a conversion ; Bouv. Law Diet., title 
 Conversion. 
 
 Savage, C. J., in Spencer v. Blackman, 9 Wend. 167, de- 
 fines it concisely as follows : " A conversion seems to consist 
 in any tortious act by which the defendant deprives the plain- 
 tiff' of his goods." 
 
 In this case the plaintiff placed the note in the hands of 
 the defendant for a special purpose not only, but with 
 restricted authority (as we must assume from the verdict of 
 the jury), not to part with the possession of the note without 
 receiving the money. The delivery to Foote was unauthor- 
 ized and wrongful, because contrary to the express directions 
 of the owner. The plaintiff was entitled to the absolute 
 dominion over this property as owner. He had the right to 
 part with so much of that dominion as he pleased. He did 
 part with so much of it as would justify the defendant in 
 delivering it for the money in hand, but not otherwise. The 
 act of permitting the note to go out of his possession and 
 beyo'nd his reach was an act which he had no legal right to do. 
 
IN AGENCY. 147 
 
 It was an unlawful interference with the plaintiff's property 
 which resulted in loss, and that interference and disposition 
 constituted, within the general principles referred to, a conver- 
 sion, and the authorities I think sustain this conclusion, by a 
 decided weight of adjudication. A leading case is Syeds v. 
 Hay, 4 T. R. 260, where it was held that trover would lie 
 against the master of a vessel who had landed goods of the 
 plaintiff contrary to the plaintiff's orders, though the plaintiff 
 might have had them by sending for them and paying the 
 wharfage. Butler, J., said : "If one man who is intrusted 
 with the goods of another put them into the hands of a third 
 person, contrary to orders, it is a conversion." This case has 
 been repeatedly cited by the Courts of this State as good law, 
 and has never to ray knowledge been disapproved, although it 
 has been distinguished from another class of cases upon which 
 the defendant relies, and which will be hereafter noticed. In 
 Spencer v. Blackman, 9 Wend. 167, a watch was delivered to 
 the defendant to have its value appraised by a watchmaker. 
 He put it into the possession of the watchmaker, when 
 it was levied upon by virtue of an execution not against the 
 owner, and it was held to be a conversion. Savage, C. J., 
 said : " The watch was intrusted to him for a special pur- 
 pose, to ascertain its value. He had no orders or leave to 
 deliver it to Johnson, the watchmaker, nor any other person." 
 So, when one hires a horse to go an agreed distance, and goes 
 beyond that distance, he is liable in trover for a conversion : 
 Wheelock v. Wheelwright, 5 Mass. 103. So when a factor 
 in Buffalo was directed to sell wheat at a specified price on a 
 particular day, or ship it to New York, and did not sell or 
 ship it that day, but sold it the next day at the price named, 
 held that in legal effect it was a conversion : Scott v. Rogers, 
 31 N. Y. 676 ; see, also, Addison on Torts, 310, and cases there 
 cited. The cases most strongly relied upon by the learned 
 counsel for the appellant are Dufresne v. Hutchinson, 3 
 Taunt. 117, and Sarjeant v. Blunt, 16 J. R. 73, holding that 
 a broker or agent is not liable in trover for selling property 
 at a price below instructions. The distinction in the two 
 
148 ILLUSTRATIVE CASES 
 
 classes of cases, I apprehend; is that in the latter the broker 
 or agent did nothing with the property but what he was 
 authorized to do. He had a right to sell and deliver the 
 property. He disobeyed instructions as to price only, and 
 was liable for misconduct, but not for conversion of the prop- 
 erty, a distinction which, in a practical sense, may seem techni- 
 cal, but is founded probably upon the distinction between an 
 unauthorized interference with the property itself, and the 
 avails or terms of sale. At all events, the distinction is fully 
 recognized and settled by authority. In the last case Spencer, 
 J., distinguished it from Syeds v. Hay, supra. He said : " In 
 the case of Syeds v. Hay, 4 Term R. 260, the captain disobeyed 
 his orders in delivering the goods. He had no right to touch 
 them for the purpose of delivering them on that wharf." 
 
 The defendant had a right to sell the note, and if he had 
 sold it at a less price than that stipulated, he would not have 
 been liable in this action, but he had no right to deliver the 
 note to Foote to take away, any more than he had to pay his 
 own debt with it. Morally, there might be a difference, but 
 in law both acts would be a conversion, each consisting in 
 exercising an unauthorized dominion over the plaintiff's prop- 
 ertJ^ Palmer u Jarmain, 2 M. & W. 282, is plainly distin- 
 guishable. There, the agent was authorized to get the note 
 discounted, which he did, and appropriated the avails. 
 Parke, B., said : " The defendant did nothing with the bill 
 -which he was not authorized to do." So in Cairn es v, 
 Bleecker, 12 J. R. 300, where an agent was authorized to 
 deliver goods on receiving sufficient security, and delivered 
 the goods on inadequate security, it was held that trover 
 would not lie, for the reason that the question of the suffi- 
 ciency of the security was a matter of judgment. In McMorris 
 V. Simpson, 21 Wend. 610, Bronson, J., lays down the general 
 rule that the action of trover " may be maintained when the 
 agent has wrongfully converted the property of his principal 
 to his own use, and the fact of conversion may be made out by 
 showing either a demand and refusal, or that the agent has 
 wijihout necessity sold or otherwise disposed of the property 
 
IN AGENCY. 149 
 
 contrary to his instructions. When an agent wrongfully re- 
 fuses to surrender the goods of his principal, or wholly departs 
 from his authority in disposing of them, he makes the prop- 
 erty his own and may be treated as a tort-feasor." The 
 result of the authorities is that if the agent parts with the 
 property, in a way or for a purpose not authorized, he is liable 
 for a conversion, but if he parts with it in accordance with his 
 authority, although at less price, or if he misapplies the avails, 
 or takes inadequate for sufficient security, he is not liable for a 
 ■conversion of the property, but only in an action on the case 
 for misconduct. It follows that there was no error in the 
 ■charge. The question of good faith is not involved. A wrong- 
 ful intent is not an essential element of the conversion. It is 
 sufficient if the owner has been deprived of his property by 
 the act of another assuming an unauthorized dominion and 
 ■control over it: 31 N. Y. 490. It is also insisted that the 
 parol evidence of instructions not to part with the note was 
 incompetent to vary the terms of the contract contained in the 
 receipt. This evidence was not objected to not only, but the 
 point was not taken in any manner. The attention of the 
 •Court was not called to it, and the Court made no decision in 
 respect to it. Under these circumstances it must be deemed 
 to have been waived, and is not available upon appeal. But 
 if an exception had been taken, I am inclined to the opinion 
 that the testimony was competent. It is not claimed that it 
 varies that part of the receipt which contains an agreement to 
 return the note or the money the next day, but that it varies 
 the clause stating that the note was received for negotiation. 
 This expresses the purpose of receiving the note, and if deemed 
 a, contract, can it be said that a parol mandate not to part with 
 possession of the note before sale and receipt of money is in- 
 .■consistent with it ? 
 
 There is no .rule of law which gives an agent the right thus 
 to part with a promissory note under the mere authority to 
 negotiate. The instructions were consistent with the purpose 
 expressed, although if they had not been given, a wider field 
 of inquiry might have been opened. A promissory note 
 
150 ILLUSTRATIVE CASES 
 
 passes from hand to hand, and a bona fide holder is protected 
 in his title, and it might well be claimed that an authority to 
 sell would not ordinarily justify a delivery to a third person 
 without a sale. Without definitely passing upon this ques- 
 tion, we think that the question should have been in some 
 form presented at the trial. In a moral sense the defendant 
 may have acted in good faith, and hence the judgment may 
 operate harshly upon him~ but the fact found by the jury ren- 
 ders him liable in this action. 
 The judgment must be affirmed. 
 
 Spencer v. Blackman, 9 Wend. 167 ; Scott v. Rogers, 31 N. Y. 676 ; Nichola 
 V. Wadsworth, 40 Minn. 547. 
 
 3 
 
 Due Care. 
 
 The agent must exercise due care in the discharge of his duties. 
 
 Whitney v. Martine. 
 
 New York Court of Appeals, 1882. 
 
 88 N. Y. 535. 
 
 Miller, J. This action was brought to recover a sum of 
 money which it is claimed the defendant's testator invested 
 upon bond and mortgage as agent and attorney of the plain- 
 tiff upon real estate in the city of New York which was incum- 
 bered by prior mortgages, and which was sold for a less amount- 
 than said mortgages, by means of which the investment was a 
 loss to the plaintiff. The order of reversal does not provide- 
 that the judgment was reversed on questions of fact, and hence 
 the only questions we are called upon to consider upon this 
 appeal are questions of law. 
 
 The first question which properly arises is whether the evi- 
 dence upon the trial was sufficient to support the findings and 
 the judgment of the Court. There is proof to show that the- 
 
IN AGENCY. 151 
 
 testator acted in the capacity of agent and attornej'^ in making 
 the loan. The answer admits that he negotiated and procured 
 to be accepted the loan which was made upon the terms and 
 conditions therein stated and referred to. It appears that the 
 testator came with the plaintiff to the place where, and at the 
 time when, the money was paid to her upon another mort- 
 gage, made out the statement as the amount, brought a satis- 
 faction-piece of the mortgage with him for which he was paid, 
 received the money which was paid for the plaintiff, and acted 
 or seemed to act on her behalf as her attorney in the transac- 
 tion of the business in preference to the plaintiff's former attor- 
 ney with whom it had previously been transacted. It was 
 also proved that the plaintiff subsequently, by the request of 
 the testator, was at his and his son's office to close up the 
 business, delivered the check for the money to him, was intro- 
 duced to the son, but said nothing to him whatever about 
 the title of the lots or the business. A week afterward the 
 testator delivered the bonds and mortgages to her, and paid her 
 $300 as a present, as the plaintiff testifies and claims. The 
 testator afterward collected a small amount on the bonds and 
 mortgages, and wrote several letters to the bondsmen demand- 
 ing payment of interest and taxes. Although there was a con- 
 tradiction in this testimony in regard to the testator's relation 
 to the plaintiff, it was sufficient, nevertheless, to warrant the 
 conclusion that the testator was intrusted by the plaintiff with 
 making the loan, and the duty devolved upon hin:, to see that 
 the money was safely and securely invested. The responsi- 
 bility of an agent or attorney under such circumstances is be- 
 yond dispute, and the rule is well settled that the agent is not 
 only bound to act in good faith, but to exercise reasonable dili- 
 gence and such care and skill as is ordinarily possessed by 
 persons of common capacity engaged in the same business : 
 Story on Agency, 183 ; Heinemann v. Heard, 50 N. Y. 35 ; 
 Story's Eq. Juris., § 310. When the relations of contracting 
 parties are such that they do not deal on terms of equality, a 
 very strict rule prevails, and an agent or trustee who occupies 
 such a position has no right to avail himself of his superior 
 
152 ILLUSTRATIVE CASES 
 
 knowledge of the matter derived from the fiduciarj'- relation, 
 or influence or weakness, dependence or trust, to take an un- 
 fair advantage : Cowee v. Cornell, 75 N. Y. 99, 100. The tes- 
 tator being the agent or trustee of the plaintiff in making the 
 loan, the next question which properly arises is whether by- 
 reason of his failure to perform his duty, or his carelessness 
 and neglect in making the investment, the same was lost to the 
 plaintiff. The Court found upon the trial that the investment 
 was not first class, nor a good and proper one, and proved to 
 be utterly worthless, and decided as a conclusion of law that 
 it was a violation of duty of the testator to invest said money 
 upon property, subject to two prior mortgages of $10,000 each 
 then existing upon the same, and held the defendants liable 
 for the amount invested. There is, we think, sufficient evi- 
 dence to sustain this finding. There was testimony showing 
 that the plaintiff had no acquaintance with the mortgaged 
 premises, although it is testified she had examined the premises 
 and knew that there were second mortgages. She denies that, 
 and swears that she did not know that there were second mort- 
 gages until a week after the mortgages executed to her were 
 returned to her, and the weight of the evidence is found hj the 
 Court to be in her favor. One witness testifies to a statement 
 made in the presence of the testator that he did wrong in mak- 
 ing these mortgages second mortgages, which was not denied 
 by him. Although this testimony is not very strong and may 
 perhaps be subject to criticism, yet in connection with the other 
 evidence presented on the trial, as well as the fact that being 
 unaccustomed to business, the plaintiff in all probability had 
 but little knowledge as to the nature of such security, it is a 
 reasonable conclusion that she was not aware of that fact, nor 
 of the exact nature of the security taken. 
 
 The proof shows that the value of the property even at the 
 highest estimate placed upon it by the defendants' witness was 
 but a few thousand dollars over the amount of the first mort- 
 gages and the plaintiff's loan, and a very inadequate security 
 in case of a change or fluctuation in value or the depreciation 
 of real estate ,in the locality from any cause. It also appears 
 
IN AGENCY. 153 
 
 that the loan upon the first mortgagfes was made at an unusu- 
 ally large discount for a good investment, and that a large 
 amount was retained for fees, for examining title and other 
 expenses ; that the mortgagors were, or became afterward, in- 
 solvent and the property was sold at far less than the amount 
 of the first mortgages. These circumstances all tend to show 
 that the loan was improvidently and improperly made, and 
 unsafe and insecure at the, start. Perhaps it might not be suf- 
 ficient to charge the defendant for neglect of duty on the last 
 evidence referred to, and there would be ground for hesitation, 
 Independent of the fact that the mortgages of the plaintiff were 
 second mortgages, taken after others of a large amount had 
 been given, and thus would render it necessary for the plain- 
 tiff, on an emergency, to raise a large amouut to protect a com- 
 paratively small sum loaned by her upon the property. Loans, 
 under such circumstances, are always hazardous and doubtful, 
 and, while the attorney or agent may be exonerated, where 
 the party had full knowledge of their existence and the value 
 of the property, it would be a very unsafe rule to hold, as a 
 matter of law, that an agent would be justified without 
 an understanding by the party of the true character of the 
 prior incumbrances, under circumstances like these here 
 presented. 
 
 The right of an agent to advance funds on second mortgages 
 or security not of the first class may well be questioned : Mc- 
 Queen's Appeal Cases, 236. And, as a general rule, it may 
 properly be laid down that it is not prudent or safe to advance 
 moneys on second mortgages when there are large prior incum- 
 brances, and especially where the personal security of the mort- 
 gagor is in any way precarious. Such an investment is not a 
 first-class one. The risk of protecting a small investment by 
 advancing more than three times as much, and quite a large 
 sum for most persons, is far too great to be taken by an agent 
 without his principal being fully aware of the security he is 
 to receive for his money. And as this case is presented upon 
 the evidence, we are brought to the conclusion that the agent 
 exceeded his authority and was chargeable with a want of 
 
154 ILLUSTRATIVE CASES 
 
 proper care and skill in making the investment ; and for this 
 neglect he is legally liable for the loss sustained. In regard 
 to a ratification by the plaintiff, we think that the acceptance 
 of some of the money which was due to her was not sufficient 
 to preclude her from asserting her claim. It was without 
 knowledge of the circumstances, and of her right to disaffirm 
 the act, and it cannot, therefore, be held that she is barred 
 from maintaining an action : Fish v. Miller, 1 Hoff. Ch. 290, 
 291. Nor was the $300 received by the plaintiff, for a pur- 
 pose not entirely apparent, a ratification or waiver of her right 
 of action. 
 
 "We are also of the opinion that no tender of the bonds and 
 mortgages was required, or proof thereof prior to judgment. 
 The point does not appear to have been made upon the trial, 
 nor is it presented in any of the requests to find of the defend- 
 ants' counsel. If a tender was required it could have been 
 made upon the trial, upon the question as to its necessity being 
 raised. The plaintiff in her complaint offered to assign the 
 bonds and mortgages to the testator. If this is a case where 
 an assignment is proper, all has been done which was required 
 from the plaintiff to accomplish that purpose. The several 
 requests to find which were refused have been examined and 
 we are unable to discover any error of the Judge upon the trial 
 in respect to any of them. 
 
 The point that provision should have been made in the 
 judgment for the delivery of the bonds and mortgages to the 
 defendants is without force. It relates to the form of the 
 judgment, was not made on the trial or the settlement of the 
 decree, and cannot be raised upon appeal. Besides a distinct 
 offer to do this was made in the complaint, and the judgment 
 may be amended in this respect by an application to the special 
 term of the Supreme Court, to insert therein a provision that 
 the plaintiff, upon being requested, shall assign the bonds and 
 mortgages to the defendants. 
 
 For the reason stated the General Term was in error in 
 reversing the judgment, and the order appealed from should 
 be reversed and the judgment of the special term affirmed 
 
IN AGENCY. ■ 155 
 
 without prejudice to the application to the special term to 
 amend the same, with costs. 
 
 Order reversed and judgment accordingly. 
 
 Stevens v. Walker, 55 111. 151 ; Milburn Wagon Co. v. Evans, 30 Minn. 89 ; 
 Furber v. Barnes, 32 Minn. 105. 
 
 4 
 
 Accounting. 
 
 The agent must account to the principal for all properties coming 
 into his possession by virtue of his agency. 
 
 Baldwin v. Potter. 
 Supreme Court of Vermont, 1874. 
 46 Vt. 402. 
 
 General assumpsit. Plea, the general issue, and trial by 
 the Court, September Term, 1873, Royce, J., presiding. 
 
 The case was tried upon the following agreed statement of 
 facts : 
 
 " The plaintiffs were merchants and partners, residing and 
 doing business at St. Albans, Vt. They employed the defend- 
 ant to solicit orders for and sell an article known and called 
 ' prize candy ' on commission. It was the practice of the 
 parties, under said employment, for the defendant to solicit 
 and take orders for said goods, and send such orders to the 
 plaintiffs, who would thereupon send the candy to the parties 
 ordering it, and charge it directly to the purchaser, on the 
 plaintiffs' books, and for the defendant, when convenient, to 
 make collections in respect thereof for the plaintiffs, receipt 
 therefor, notify the plaintiffs thereof, and pay the amounts col- 
 lected over to the plaintiffs on demand. 
 
 " The defendant entered upon said business ; and in No- 
 vember, 1870, and January, 1871, he sent orders for said 
 candy for various parties in the State of New York to the 
 amount of |103, and afterward, in August and September, 
 1871, collected the pay for the same as the plaintiffs' agent. 
 
156 ' ILLUSTRATIVE CASES 
 
 In November and December, 1870, and February and March, 
 1871, the defendant sold and sent orders to the plaintiffs from 
 various parties in the State of Massachusetts for said candy to 
 the amount of |210.52, and afterward, in August and Octo- 
 ber, 1871, collected pay for the same as the plaintiffs' agent. 
 During the years 1870 and 1871 the defendant sold and sent 
 orders for said candy from various parties in Vermont to the 
 amount of $215.57, and afterward, in August, September, and 
 October, 1871, collected the pay for the same as the plaintiffs' 
 agent. 
 
 "On the delivery of said goods by the plaintiffs they 
 charged the same to the purchasers on their books ; and on 
 receiving notice from the defendant of said collections they 
 credited to such purchasers the amounts thereof. The plain- 
 tiffs delivered to the defendant four silver dollars and four 
 silver half-dollars as samples of the prizes contained in certain 
 of said prize candy packages, which, with the premium 
 thereon, were of the value of $6.72, and which the defendant 
 has never returned nor accounted for to the plaintiff. It is 
 agreed that the commission to which the defendant is en- 
 titled is equal to and shall be set off against items in the 
 plaintiffs' favor ; specification not included in the amounts 
 aforesaid. 
 
 " Said prize candies were of three kinds, and were known 
 and called the ' Challenge,' ' Gem,' and ' United States Silver 
 Coin,' and were put up in packages designed to be sold at re- 
 tail for a certain price per package. Each package, in addi- 
 tion to a quantity of candy, contained a prize of some value ; 
 and the inducement to purchase one or more of the packages 
 at retail was the chance of receiving with the candy a prize, 
 some of which were of greater value, and some of less value, 
 than the price paid. The plaintiffs, at St. Albans, put up said 
 candy in packages, with a prize in each package, and put up 
 the packages in boxes containing a certain number thereof. 
 The plaintiffs sold said candy by the box only, and each box 
 of the several kinds contained the same amount of candy and 
 the same prizes, and the prizes contained in each box were 
 
4 IN AGENCY. 157 
 
 printed on the outside and on printed circulars ; and cards 
 were used by the plaintiffs, and the defendant as their agent, 
 in connection with the sale thereof, stating particularly the 
 kind and value of each article contained in the box as a prize ; 
 and each purchaser thereof from the plaintiffs was informed 
 and knew the amount of candy and the exact number, value, 
 and kind of articles as prizes contained in each box that he 
 bought; and the plaintiffs knew that such purchasers intended 
 to sell the same at retail, in the vicinity of the place of pur- 
 chase, and that the prizes would be drawn as hereinbefore 
 stated by the retail purchasers thereof. 
 
 " In respect to said business, and in the collection of said 
 money, the defendant acted solely as the agent of the plain- 
 tiffs. On the 18th of October, 1871, the plaintiffs demanded 
 of the defendant to account to them for the money collected 
 by him as aforesaid, and said silver coins, and to pay over the 
 amount thereof to them, but the defendant absolutely refused, 
 and ever since hath refused so to do, and has never paid the 
 same nor any part thereof. 
 
 " If upon the foregoing facts the Court is of opinion that 
 the plaintiffs are entitled to recover for the sums as stated, 
 which were collected upon sales in the States of New York, 
 Massachusetts, and Vermont, or either of said States, or for 
 said silver coins, judgment shall be rendered for the plaintiffs 
 for such sums, and interest from the date of collection of the 
 money and the date of the delivery of the coin. If the plain- 
 tiffs are not entitled to recover in respect of any of said items, 
 then judgment shall be rendered for the defendant to recover 
 his costs." 
 
 An agreement was also made as to some of the provisions 
 of the statutes of New York and Massachusetts relating to 
 offenses against public policy in force at the time of said sales. 
 The Court rendered judgment for the plaintiff, _pro /orma, to 
 recover the full amount claimed, with interest thereon as 
 stipulated, and found that the defendant received said money 
 in a fiduciary capacity and converted the same to his own use, 
 and adjudged, pro forma, that the cause of action arose from 
 
158 ILLUSTRATIVE CASES 
 
 the willful and malicious act and neglect of the defendant, 
 and that he ought to be confined in close jail ; to all which the 
 defendant excepted. 
 
 PiERPOiNT, C. J. "We do not find it necessary in this case 
 to consider the question as to whether the contract for the sale 
 of the property referred to, by the plaintiffs, to the several 
 persons who purchased it, were contracts made in violation of 
 law, and therefore void or not. This action is not between the 
 parties to those contracts ; neither is it founded upon or 
 brought to enforce them. If those contracts were illegal the 
 law will not aid either party in respect to them ; it will not 
 allow the seller to sue for and recover the price of the property 
 sold if it has not been paid ; if it has been paid, the pur- 
 chaser cannot sue for and recover it back. The facts in this 
 case show that the purchasers paid the money to the plaintiffs, 
 not to the plaintiffs personally, but to the defendant as the 
 agent of the plaintiffs authorized to receive it. When the 
 money was so paid it became the plaintiffs' money, and when 
 it was received by the defendant as such agent the law, in 
 consideration thereof, implies a promise on the part of the 
 defendant to pay it over to his principals, the plaintiffs ; it is 
 this obligation that the present action is brought to enforce ; 
 no illegality attaches to this contract.. But the defendant in- 
 sists that, inasmuch as the plaintiff could not have enforced 
 the contracts of sale as between himself and the purchaser, 
 therefore, as the purchaser has performed the contracts by 
 paying the money to the plaintiffs through me, as their agent, 
 I can now set up the illegality of the contract of sale to defeat 
 an action brought to enforce a contract on my part to pay the 
 money that I as agent receive, over to my principal. In other 
 words, because my principal did not receive the money on a 
 legal contract, I am at liberty to steal the money, appropriate 
 it to my. own use, and set my principal at defiance. We think 
 the law is well settled otherwise, and the fact that the defend- 
 ant acted as the agent of the plaintiffs in obtaining orders .for 
 the goods does not vary the case : Tenant v. Elliot, 1 B. & P. 2 ; 
 
IN AGENCY. 159 
 
 Armstrong v. Toller, 11 Wheat. 257 ; Evans ■;;. City of Tren- 
 ton, 4 Zab. (N. J.) 764. 
 
 We tliink the certificate granted by the County Court was 
 properly granted. It has been urged in behalf of the defend- 
 ant that the zeal with which he has defended this case shows 
 that he intended no wrong ; but we think the man who re- 
 ceives money in a fiduciary capacity, and refuses to pay it 
 over, does not improve his condition by the tenacity with 
 which he holds on to it. 
 
 Judgment of the County Court affirmed. 
 
 Jett V. Hempstead, 25 Ark. 462 ; Cooley v. Betts, 24 Wend. 203 ; Gardner v. 
 Ogden, 22 N. Y. 327; Laflferty v. Jelley, 22 Ind. 471. 
 
 5 
 
 Notice. 
 
 It is the duty of the agent to notify the principal of all material 
 facts coming to his knowledge within the scope of his agency. 
 
 Hegenmyer v. Marks. 
 
 Supreme Court of Minnesota, 1887. 
 
 37 Minn. 6. 
 
 (Reported ante, p. 143.) 
 
 Callander v. Oelrichs, 5 Biug. (N. C.) 58 (35 Eng. Com. Law, 29) ; Arrott v. 
 Brown, 6 Whart. 9 ; Devall v. Burbridge, 4 Watts & S. 305 ; Pinkham v. 
 Crocker, 77 Me. 563. 
 
160 ILLUSTRATIVE CASES 
 
 B 
 DUTIES OF AGENT TO THIRD PARTIES. 
 
 1 • 
 
 Implied Warranty oe Authority. 
 
 One who contracts as agent for another impliedly warrants that 
 he is such agent and that the contract is within the scope of his 
 authority. 
 
 Kroeger v. Pitcairn. 
 Supreme Court of Pennsylvania, 1882. 
 101 Pa. St. 311. 
 The Birmingham Fire Insurance Company issued a policy 
 of insurance to Kroeger, plaintiff herein, on a stock of mer- 
 chandise. Pitcairn, defendant herein, who was an agent of 
 the company, wrote the insurance. One of the printed con- 
 ditions of the policy provided that if petroleum was kept on 
 the premises without written permission in the policy the 
 policy should be void. Plaintiff called defendant's attention 
 to this clause, saying that he was obliged to keep a barrel of 
 petroleum on the premises, and suggested that the fact should 
 be mentioned in the policy; whereupon defendant assured 
 him that so long as only one barrel was kept at a time it was 
 considered general merchandise and not taken notice of in any 
 other way. The stock was burned and the company refused 
 to pay. This action is brought against the agent to recover 
 the amount of the loss sustained. 
 
 STERRETf, J. The subject of complaint, in both specifica- 
 tions of error, is the entry of judgment for defendant non 
 obstante veredicto. It is contended that upon the facts estab- 
 lished by the verdict, judgment should have been entered 
 thereon in favor of plaintiff. The jury were instructed to 
 return a verdict for the amount claimed by him, if they were 
 satisfied the allegations of fact contained in the point presented 
 by him were true. In view of this, the finding in his favor 
 
IN AGENCY. 161 
 
 necessarily implies a verification of the several matters speci- 
 fied in plaintifl''s point, and hence it must now be regarded 
 as containing a truthful recital of the circumstances connected 
 with the delivery of the policy and payment of the premium. 
 The transaction, as therein detailed, clearly amounted to a 
 mutual understanding or agreement between the parties that 
 the stock of merchandise, mentioned in the policy, should 
 include one barrel of carbon oil ; in other words, that the plain- 
 tifi" should have the privilege of keeping that quantity of oil 
 in connection with and as a part of the stock insured, without 
 thereby invalidating his policy. It is impossible to regard 
 the transaction in any other light. The jury found that plain- 
 tiff " took the policy upon the faith " of the representations 
 made by defendant. These representations were not merely 
 expressions of opinion as to the meaning of the policy. On 
 the contrary, the defendant, acting as its agent and assuming 
 authority to speak for the insurance company, asserted with- 
 out any qualification that when carbon oil was kept as plain- 
 tiff was in the habit' of keeping it — a single barrel at a time — 
 it was unnecessary to mention the fact in the policy, or other- 
 wise obtain the consent of the company ; that no notice is ever 
 taken of it unless " it is kept in large quantity — say several 
 hundred barrels. In that case, when it is wholesale, it should 
 be mentioned ; but, as long as it is kept, not more than a barrel 
 in th6 store at a time, it is considered as general merchandise 
 and is not taken notice of in any other way." Such was the 
 language employed by defendant, evidently for the purpose of 
 dispelling any doubt that existed in the mind of the plaintiff 
 and inducing him to accept the policy and pay the premium ; 
 and, to that end at least, it was successful. What was said 
 and done by defendant, in the course of the transaction, 
 amounted to more than a positive assurance that the accepted 
 meaning of the policy was as represented by him. In effect, 
 if not in substance, his declarations were tantamount to a 
 proposition, on behalf of the company he assumed to represent, 
 that if the insurance was effected it should be with the under- 
 standing that a barrel of carbon oil was included in and formed 
 11 
 
162 ILLUSTRATIVE CASES 
 
 part of the insured stock of merchandise, without being spe- 
 cially mentioned in the policy. The plaintiff doubtless so 
 regarded his declarations, and relying thereon, as the jury has 
 found, accepted the policy on the terms proposed, and thus 
 concluded, as he believed, a valid contract of insurance, author- 
 izing him to keep in stock, as he had theretofore done, a small 
 quantity of carbon oil. It was not until after the property was 
 destroyed that he was undeceived. He then discovered that, 
 in consequence of defendant having exceeded his authority, he 
 was without remedy against the company. Has he any remedy 
 against the defendant, by whose unauthorized act he was 
 placed in this false position ? We think he has. If the presi- 
 dent or any one duly authorized to represent the company 
 had acted as defendant did, there could be no doubt as to its 
 liability. Why should not the defendant be personally respon- 
 sible, in like manner, for the consequences, if he, assuming to 
 act for the company, overstepped the boundary of his authority 
 and thereby misled the plaintiff to his injury, whether inten- 
 tionally or not? The only difference is that in the latter the 
 authority is self-assumed while in the former it is actual ; but, 
 that cannot be urged as a sufficient reason why plaintiff, who is 
 blameless in both cases, should bear the loss in one and not in 
 the other. As a general rule, " whenever a party undertakes 
 to do any act as the agent of another, if he does not possess 
 any authority from the principal therefor, or if he exceeds the 
 authority delegated to him, he will be personally liable to the 
 person with whom he is dealing for or on account of his prin- 
 cipal :" Story on Agency, 264. The same principle is recog- 
 nized in Evans on Agency, *301 ; Whart. on Agency, 524 ; 
 2 Smith's Lead. Cases, 380, note ; 1 Pars, on Cont. 67, and in 
 numerous adjudicated cases, among which are : Hampton v. 
 Speckenagel, 9 S. & R. 212, 222 ; Layng v. Stewart, 1 W. &' 
 S. 222, 226 ; McConn v. Lady, 10 W. N. C. 493 ; Jefts v. 
 York, 10 Gush. 392 ; Baltzen v. Nicolay, 53 N. Y. 467. In the 
 latter case it is said, the reason why an agent is liable in dam- 
 ages to the person with whom he contracts, when he exceeds 
 his authority, is that the party dealing with him is deprived of 
 
IN AGENCY. 163 
 
 any remedy upon the contract against the principal. The con- 
 tract, though in form that of the principal, is not his in fact, 
 and it is but just that the loss, occasioned by there being no 
 valid contract with him, should be borne by the agent who 
 contracted for him without authority. In Layng ■;;. Stewart, 
 supra, Mr. Justice Huston says : " It is not worth while to be 
 learned on very plain matters. The cases cited show that if 
 an agent goes beyond his authority and employs a person, his 
 principal is not bound, and in such case the agent is bound." 
 The plaintiff in error, in McConn v. Lady, supra, made a 
 contract, believing he had authority to do so, and not intend- 
 ing to bind himself personally. The jury found he had no 
 authority to make the contract as agent, and this Court, in 
 affirming the judgment, said: " It was a question of fact sub- 
 mitted to the jury, whether the plaintiff in error h^d authority 
 from the School Board to make the contract as their agent. 
 They found he had not. He was personally liable whether 
 he made the contract in his own name or in the name of his 
 alleged principal. It is a mistake to suppose that the only 
 remedy was an action against him for the wrong. The party 
 can elect to treat the agent as a principal in the contract." 
 
 The cases iu which agents have been adjudged liable per- 
 sonally have sometimes been classified as follows, viz. : 1st. 
 Where the agent makes a false representation of his authority 
 with intent to deceive. 2d. Where, with knowledge of his 
 want of authority, but without intending any fraud, he assumes 
 to act as though he were, fully authorized ;' and, 3d. Where 
 he undertakes to act, bona fide believing he has authority, but 
 in fact has none, as in the case of an agent acting under a 
 'forged power of attorney. As to cases fairly brought within 
 either of the first two classes there cannot be any doubt as to 
 the personal liability of the self-constituted agent ; and his 
 liability may be enforced either by an action on the case for 
 deceit, or by electing to treat him as principal. While the 
 liability of agents, in cases belonging to the third class, has 
 sometimes been doubted, the weight of authority appears to be 
 that they are also liable. In Story on Agency, the learned 
 
164 ILLUSTRATIVE CASES 
 
 author, recognizing the undoubted liability of those belonging 
 to the first two classes, says, " Another case may be put which 
 may seem to admit of some doubt, and that is where the party 
 undertakes to act as an agent for the principal, bona fide believ- 
 ing he has due authority, and therefore acts under an innocent 
 mistake. In this last case, however, the agent is held by law 
 to be equally as responsible as he is in the two former cases,, 
 although he is guilty of no intentional fraud or moral turpi- 
 tude. This whole doctrine proceeds upon a plain principle of 
 justice ; for every person, so acting for another, by a natural if 
 not a necessary implication holds himself out as having com- 
 petent authority to do the act; and he thereby draws the 
 other party into a reciprocal engagement. If he has no such 
 authority and acts bona fide, still he does a wrong to the other 
 party ; and if that wrong produces injury to the latter, owing 
 to his confidence in the truth of an express or implied asser- 
 tion of authority by the agent, it is perfectly just that he who 
 makes such assertion should be personally responsible for the 
 consequences, rather than that the injury should be borne by 
 the other party who has been misled by it :" Story on Agency, 
 264. This principle is sustained by the authorities there cited, 
 among which is Smout v. Ilbery, 10 Mees. & Wels. 1, 9. 
 
 Without pursuing the subject further, we are of opinion that, 
 upon the facts established by the verdict, judgment should 
 have been entered for the plaintiff, on the question of law 
 reserved. 
 
 Judgment reversed and judgment is now entered in favor 
 of the plaintiff for $3,027.20, the amount found by the jury, 
 with interest from January 20, 1882, the date of the verdict! 
 
 Sheffield v. Ladue, 16 Minn. 388 ; Skaaraas v. Finnegan, 32 Minn. 107 ; Balt- 
 zen V. Nicolay, 53 ST. Y. 467 ; Stevens v. Walker, 55 111. 151 ; Taylor v. Shelton, 
 30 Conn. 122 ; Ogden v. Raymond, 22 Conn. 379. 
 
IN AGENCY. 165 
 
 Eaxeption. — Where Third Party Has Notice. 
 
 All the facts being known to both parties, and no ezpress w^arranty 
 existing, the agent is under no liability. 
 
 Michael v. Jones. 
 Supreme Court of Missouri, 1884. 
 
 84 Mo. 578. 
 
 Martin, C. The plaintiff alleges in his petition that he 
 sold and delivered to Eobert L. Jones in his lifetime large 
 jquantities of wood of the price and value of $6,525.35, and 
 that after deducting all credits and payments on account 
 thereof,' there remains a balance still due him in the sum of 
 42,932.25, for which he asks judgment. The answer in the 
 •case was filed before the death of Mr. Jones. In it he denies 
 the allegations of the petition, except as thereinafter stated by 
 liim. He pleads as a defense that the wood, for the price of 
 "which plaintiff sues, was sold and delivered to him as guardian 
 of Joseph H. Locke, an insane person, whose estate and body 
 he had charge of as guardian, by virtue of appointment of the 
 Probate Court ; that at the time of the sale thereof plaintiff 
 knew that defendant was acting only in the capacity , of 
 guardian, and not otherwise ; that at the time of such sale the 
 agreement and understanding between plaintiff and defendant 
 -was that defendant was in no wise to be personally bound to 
 pay for said wood, and that the plaintiff relied wholly upon the 
 •estate of said Locke for his pay, and never intended to hold de- 
 fendant individually liable therefor. He also alleges that none 
 •of said wood was received to his use or benefit, but that it was 
 .all received to the use and benefit of the estate he had in charge. 
 
 The issues thus raised were tried by the Court without the 
 intervention of a jury, and judgment was rendered in favor 
 of defendant, who is the widow and administratrix of said 
 Eobert L. Jones. The plaintiff appealed from this judgment, 
 Accepting an aflBrmance pro forma in the St. Louis Court of 
 Appeals. It is proper for me to mention in this connection 
 that the plaintiff instituted an action in equity against the 
 assets of the estate of said Locke in the hands of Mr. Lancas- 
 
166 ILLUSTRATIVE CASES 
 
 ter, who had succeeded Mr. Jones as guardian, for the same 
 wood mentioned in this case, alleging in iiis petition substan- 
 tially the material facts pleaded specially in the defendant's 
 answer. In his petition he averred that the wood was sold 
 and delivered for the use and benefit of the estate of said 
 Locke, in the business of manufacturing lime and cement, 
 which the guardian of said estate undertook to carry on, and 
 did carry on after the death of said Locke, for the benefit of 
 his wife and children, the beneficiaries of his estate. On ap- 
 peal to this Court it was held that the guardian had no au- 
 thority as such, to subject the assets of the estate under his 
 charge to the risks and hazards of the manufacturing business 
 undertaken by him, and that the plaintiff, furnishing his wood 
 with full knowledge of the guardian's want of power to incur 
 new obligations, acquired no lien upon the assets of the estate : 
 Michael v. Locke et al., 80 Mo. 548. The facts under which, 
 the wood was alleged, in the previous case, to have been sold 
 and delivered to the estate, are ignored in the petition in thi» 
 case, and the guardian is called upon to pay for the wood as 
 if sold to him in his individual capacity and devoted to his 
 private use. 
 
 In support of his case, the plaintiff urges that where a per- 
 son assumes to act for or in behalf of another, without author- 
 ity, an action can be maintained on the contract against the 
 person improperly acting as agent. From this he concludes 
 that Jones must have been liable to plaintiff for the value of 
 the property delivered to him, if he had no power to bind the 
 estate in his charge. If the bare want of authority in the 
 agent or trustee to bind the person or estate for which he as- 
 sumes to be acting, renders him individually liable, irrespect- 
 ive of facts and circumstances indicating that no such liability 
 was contemplated by either party, then the plaintiff is entitled 
 to judgment upon the facts admitted in the answer. But I 
 am satisfied that under the best considered modern decisions 
 the principle invoked by the plaintiff cannot be carried to 
 such an extent. The true rule, I think, is stated in "Western 
 Cement Co. v. Jones, 8 Mo. App. 373, to this effect " that where 
 
IN AGENCY. ' 167 
 
 all the facts are known to both parties, and the mistake is one 
 of law as to the liability of the principal, the fact that tlae 
 principal cannot be held is no ground for charging the agent 
 with liability." To the same effect is Humphrey v. Jones, 71 
 Mo. 62. In the present case there is no pretense that the 
 guardian made any misrepresentation of fact, or was guilty of 
 any concealment relating to his authority to contract with 
 plaintiff. The evidence indicates clearly that both parties be- 
 lieved in good faith that the estate of Joseph H. Locke was 
 responsible for the wood purchased by defendant in his capa- 
 city of guardian. Acting upon that faith, the guardian paid 
 the plaintiff the greater portion of his debt from the assets of 
 the estate. The simple fact that both parties were mistaken 
 in the law about the authority of the guardian, ought not to 
 render the guardian liable individually, in the absence of any 
 promise to that effect by him, and when it is apparent that no 
 benefit has been received by him. 
 
 The plaintiff undoubtedly could recover by establishing a 
 lawful promise on the part of the guardian to be responsible 
 individually, or by developing such facts and circumstances 
 surrounding the sale and delivery of the wood as might prove 
 that the credit according to the understanding of the parties, 
 was really given to the guardian and not to the estate in his 
 charge. This view of the law was conceded by the Court in 
 an apt declaration applicable to the evidence before him : 
 " The Court declares the law to be that if the plaintiff sold the 
 wood to Robert L. Jones in his capacity as guardian of Joseph 
 H. Locke, and did not intend to hold Robert L. Jones person- 
 ally bound for the price of the wood, at the time of the sale, 
 then plaintiff cannot recover." In rendering judgment for 
 defendant the Court must have been satisfied that the plain- 
 tiff did not, as a matter of fact, .intend to hold Robert L. Jones 
 personally bound for the price of the wood at the time of sell- 
 ing the same. There is ample evidence in the record to sus- 
 tain this finding ; accordingly the judgmelit is affirmed. 
 
 Western Cement Co. v. Jones, 8 Mo. App. 373; Humphrey v. Jones, 71 
 Mo. 62. 
 
108 ILLUSTRATIVE CASES 
 
 2 
 
 Agent Acting as I'eincipal Personally Bound. 
 
 An agent who represents himself to be principal is personally- 
 bound, unless the person ■with whom he thus deals has notice of the 
 agency. 
 
 Button v. Winslow. 
 
 Supreme Court of Vermont, 1881. 
 
 53 Vt. 430. 
 
 Redfield, J. The people of Brandon celebrated the Fourth 
 of July. They appointed an " executive committee " to make 
 the necessary preparations. The defendant, as one of such 
 committee, purchased of the plaintiff twenty-one kegs of pow- 
 der, at the agreed price of $4 per keg. At the time of the 
 purchase, the plaintiff asked the defendant " his authority," 
 and the defendant replied, " Mr. Pitts, chairman of the execu- 
 tive committee, is my authority ;" and the referee reports that 
 from this conversation the " plaintiff understood that the de- 
 fendant himself was the committee to buy powder, or one of 
 the committee, and the responsible man." The report is 
 meagre, but the fact is stated that in selling the powder, the 
 plaintiff understood the defendant was one of the committee 
 to buy powder and the responsible man, and there is intima- 
 tion, in the report, that defendant gave the plaintiff no reason 
 to understand otherwise ; on the contrary, it is apparent that 
 the plaintiff might properly so understand the defendant. He 
 agreed upon the price and ordered the powder, and his lia- 
 bility therefore followed as a matter of course, unless he repre- 
 sented himself the agent of a principal whom he would bind. 
 The fact that he stated that Pitts was chairman of the execu- 
 tive committee and his authority for buying the powder is not 
 a statement that he bought the powder for and as agent of 
 Pitts. It is proper to " make a great noise " on such an anni- 
 versary, but it is also most proper that the man who buys the 
 powder should pay for it, unless he avows an agency that fixes 
 the liability on another. And this, we think, is strictly legal. 
 
 Judgment affirmed. 
 
 Sturdivant o. Hull, 59 Me. 172; Youghiogheny v. Smith, 66 Pa. St. 340; 
 Sayre v. Nichols, 7 Cal. 535 ; Pratt v. Beaupre, 13 Minn. 187. 
 
IN AGENCY. 169 
 
 3 
 
 Otherwise Not. 
 
 But one who contracts simply as agent, giring notice of the agency, 
 incurs no personal liability. 
 
 BoYNGE V. Field. 
 
 New York Court of Appeals, 1880. 
 
 81 N. Y. 159. 
 
 Miller, J. The rule is well established that when a person 
 contracts as the agent of another, and the fact of his agency is 
 known to the person with whom he contracts, the principal 
 alone, and not the agent, is responsible. This rule applies to 
 the relationship of attorney and client, and except to a certain 
 class of officers who are not within the general rule, attorneys 
 cannot be held personally responsible for services of this kind 
 rendered in a suit, unless there is a special obligation to that 
 effect : Judson v. Gray, 11 N. Y. 408 ; Covell -;;. Hart, 14 Hun, 
 252; Boynge v. Waterbury, 12 lb. 634; Sheridan v. Genet, 
 lb. 660. The charges of stenographers are within the princi- 
 ple laid down, and unless the evidence establishes that the 
 services, for which a recovery is claimed in this case, were ren- 
 dered upon the responsibility of the defendants, the complaint 
 was properly dismissed upon the trial. 
 
 The testimony does not establish any positive agreement to 
 pay the stenographers for their services, or any distinct em- 
 ployment by the defendants personally. No such demand was 
 made by the stenographers, nor any such promise given by 
 the defendants ; and it was expressly stated by one of the 
 defendants that they would have to be careful in making any 
 engagements, for their client was a very particular man. 
 They were, therefore, cautious in assuming any responsibility 
 whatever, and if any such was incurred, it can only be in- 
 
 •ferred from the construetion to be placed upon the acts and 
 conduct of the parties, which are particularly urged as estab- 
 
 ' lishing an employment by the defendants, and to these we will 
 briefly refer. i 
 
170 ILLUSTRATIVE CASES 
 
 It is claimed that the evidence shows a delivery of the bill 
 rendered to the defendants at the time of its date, and that no 
 objection was made until a long time afterward. One of the 
 assignors of the plaintiff testified that he went to Mr. Field, 
 senior, having rendered a bill to the firm, in response to a mes- 
 sage that he had received to know how much it amounted to 
 at that time, and asked him if he could not let him have the 
 amount of the bill, and he said he had not received anything 
 from his client, and that the stenographers must wait. He also 
 testified that at the close of the case a bill was rendered for the 
 amount of services performed, without stating the items, to 
 whom or at what particular time. It does not appear what any 
 of these bills contained, in whose name they were made out, 
 or to whom, if any one, the services were charged. A single 
 bill was afterward read in evidence by the plaintiff, which 
 purports to have been made, or which bears date, March 11, 
 1876, and the following testimony was given by one of plain- 
 tiff's witnesses : Q. " This is dated March 11, 1876 ; was that 
 after the performance of all the work you did in the Tweed 
 case?" (Bill shown witness.) A. "I presume it to be; I 
 don't know; I have no recollection of the exact figures; the 
 books will show ; after the rendition of this bill, another one 
 was sent ; I do not know whether we received any communi- 
 cation from Field & Deyo in reference to that bill." No books 
 are produced, and no proof given that it was taken from the 
 books, or that it was a copy of any bill which had been ren- 
 dered to the defendants. A letter from the defendants had 
 previously been introduced by the plaintifis, bearing date 
 November 28, 1876, acknowledging the receipt of a bill the 
 day previous, and stating that it was made out in their name 
 as debtors, and should be made out against Mr. Tweed, and 
 that they would do their best to procure payment of it and 
 had little doubt that it would be paid. The plaintiff could 
 have shown precisely how the matter stood ; wherl the bills, if 
 any, were sent, and what they contained ; and, failing to do 
 this, it is a fair presumption that the letter, which repudiated 
 any personal liability, referred to the first and only bill re- 
 
IN AGENCY. 171 
 
 ceived, and as the defendants denied their liability, it was not 
 estabhshed by the bill rendered, nor was it necessary to repeat 
 the denial of liability which had been previously made. As 
 to the date of the bill introduced, it most probably related to 
 the time when the charge was made, which, as the bill itself 
 shows, was a few days after the last item of service was per- 
 formed. But whether it was so or otherwise is not material, 
 as the proof does not show that the bill introduced was the 
 same as the one sent. It cannot be said, then, that the proof 
 given does establish that the bill was retained without making 
 any objection within a reasonable time, or that the defendants 
 acquiesced in its correctness. Nor is any inference to be de- 
 rived from the date of the charge that it was delivered at that 
 time. The rule that a document or instrument is presumed 
 to be delivered at the time it bears date rests upon a different 
 principle and has no application to the facts presented. 
 
 No claim is made in the printed points that one of the de- 
 fendants conceded their liability, by not responding when it 
 was stated that the stenographers held th^m responsible for the 
 bill. It appears that the defendants had stated previously that 
 one of Tweed's counsel had said that the money was coming 
 at a certain time, and in the diflferent conversations also stated 
 that they expected money from Tweed with which the bill 
 should be paid. Under the circumstances, as the defendants' 
 denial of their liability must have been understood, I do not 
 think that a failure to respond to the remark referred to fur- 
 nished sufficient evidence to make them responsible. 
 
 The defendants never admitted any liability, and there is no 
 direct proof showing that they intended or expected to be 
 responsible personally ; and as the account is not of such a 
 character as attorneys are primarily bound to pay, and there is 
 no proof that the defendants actually employed the plaintiffs, or 
 assented to their claim, a recovery would be based upon the 
 merest conjecture, and upon loose inferences not fairly to be 
 derived from the testimony, and could not be upheld. It fol- 
 lows that the Judge at the trial committed no error in directing 
 that the complaint be dismissed. 
 
172 ILLUSTRATIVE CASES 
 
 There was no error in excluding the testimony offered to 
 show that at the time of th« interview between one of the de- 
 fendants and Mr. Undeyhill, Tweed had escaped from prison, 
 was on his' way to parts unknown, and that the newspapers 
 contained the announcement of his escape. It was immaterial, 
 took place some time after the services were performed, was 
 only a statement in a newspaper report, and could have no 
 bearing upon the case. 
 
 The evidence offered of previous dealings of the plaintiff's 
 assignors with the defendants, when said assignors performed 
 work on like retainers, furnished bills to the defendants, and 
 received from them payment for said bills, was properly ex- 
 cluded. What had been done on other occasions would not 
 show what the contract was in reference to this transaction, 
 and render the defendants liable for the plaintiff's claim in this 
 case. The authorities cited do not sustain the competency of 
 the evidence, and it was properly excluded. 
 
 Judgment affirmed. 
 
 Covell V. Hart, 14 Hun, 252 ; Worthington v. Cowles, 112 Mass. 30. 
 
 4 
 
 Frauds. 
 
 An agent is personally liable for hia frauds, whether committed in 
 his own or his principal's behalf. 
 
 Heckee v. De Groot. 
 Supreme Court of New York, 1857. 
 15 How. Pr. 314. 
 Clarke, J. The defendants are sued for damages occa- 
 sioned by a fraud committed by them. It matters not in 
 what capacity they acted, or with whom they co-operated. 
 They were instrumental in perpetrating the acts constituting 
 the fraud. This is admitted by the demurrer. If indeed a 
 person is the unconscious instrument of others in committing 
 an injury, he is not personally liable for the consequences ; 
 
IN AGENCY. 173 
 
 but where he knowingly engages in an unlawful course, 
 whether for his own immediate benefit or not, he cannot es- 
 cape liability by showing that he acted as an agent. 
 
 The amount of damages is never the subject of demurrer. 
 This is to be determined at the trial. 
 
 Demurrer overruled, with liberty to answer in twenty days, 
 on payment of costs of term. 
 
 Weber ». Weber, 47 Mich. 569 ; Lee v. Mathews, 10 Ala. 682 ; Baker v. Was- 
 son, 53 Tex. 150; Johnson j). Barber, 5 Gill. (111.) 425. 
 
 c 
 
 DUTIES OF PRINCIPAL TO AGENT. 
 
 1 
 
 Compensation. 
 
 The agent is entitled to compensation for his services. 
 
 SussDORF V. Schmidt. 
 New York Court of Appeals, 1873. 
 
 55N.Y.319. 
 
 , Church, C. J. This action is for brokerage upon the sale 
 of valuable real estate situated on Long Island. 
 
 The plaintiff claimed $50,000 as agreed compensation, and 
 the principal points litigated were whether such agreement had 
 been made or whether the plaintiff was in fact the efficient 
 cause of the sale. The jury found against the special agree- 
 ment, but found for the plaintiff a verdict which allowed him 
 a commission, probably of two and a half per cent, upon the 
 amount of the sale. Upon the close of the plaintiff's evi- 
 dence, the defendants moved for a non-suit upon the ground 
 that the plaintiff had not shown himself to be the efiicient 
 cause of the sale, which was denied, and this is now claimed 
 to have been erroneous. 
 
174 ILLUSTRATIVE CASES 
 
 A person claiming a commission upon a sale of real estate 
 must show an employment, and that the ^le was made by- 
 means of his efforts or agency. An owner may employ several 
 brokers for the sale of the same property, and is of course only 
 liable for commissions to the one who effects the sale. And 
 although he employs one or more brokers he may negotiate 
 and sell the property himself without liability to any one for 
 commissions : 49 N. Y. 563. The undertaking of the broker 
 is to make efforts to procure a purchaser, but if he fails he is 
 entitled to no pay unless there is a special contract. But if 
 the purchaser is found by his efforts and through his instru- 
 mentality, he is entitled to compensation, although the owner 
 negotiates the sale himself: 51 N. Y. 124. Nor is it indis- 
 pensable that the purchaser should be introduced to the owner 
 by the broker nor that the broker should be personally 
 acquainted with the purchaser; but in such case it must 
 affirmatively appear that the purchaser was induced to 
 apply to the owner through the means employed by the 
 broker. 
 
 The evidence on the part of the plaintiff tended to prove 
 that the plaintiff acted as a broker for the seller of the prop- 
 erty to the defendants, and from motives of personal friend- 
 ship to them was anxious that they should purchase, as he be- 
 lieved it was a good speculation ; that he claimed from them 
 a part of the commission upon that sale, which they declined 
 to pay, but told him to get what he could from the seller and 
 he should have a part of the profits when they sold ; that he 
 also suggested to the defendants the mode of disposing of the 
 property to realize the most money ; that he procured some 
 maps from the seller which he put up in different places, and 
 also procured signs to be painted and put up near the premises, 
 and inserted an advertisement of the property in the Lmig 
 Island Star, which referred to the plaintiff as a broker, and 
 which was recognized and paid for by the defendants ; that 
 sometime afterward a sale of the property was negotiated by 
 the defendants with one Marwig, acting in behalf of an asso- 
 ciation of bricklayers, at $420,000. Marwig wa^ introduced to 
 
IN AGENCY. 175 
 
 the defendants by one Eckersdoif, a real estate broker, and the 
 evidence of the plaintiff tended to show that both he and 
 Mar wig were attracted to this property by the maps and signs 
 and advertisements which the plaintiff put up and caused to 
 be made. It is shown that they frequently spent their even- 
 ings in a saloon where the plaintiff had put up a map, and 
 talked about the property ; that Marwig and another person 
 went to look at the property, and was told by a hotel keeper 
 where he called, and at whose house a map had also been put 
 up by the plaintiff, where to find the property and where to 
 inquire for the plaintiff. The plaintiff had no personal com- 
 munication with Marwig or Eckersdoff before the negotiation 
 for the purchase of the property ; but during the negotiation 
 he inserted an advertisement in the Staats Zeitung, when the 
 defendants sent for him and told him not to advertise the 
 property any more or make any further efforts to effect a sale, 
 as they were in negotiation with other parties, and that he 
 should have his commission if the sale was effected. From 
 this evidence the jury might fairly infer that the purchaser 
 was secured by the efforts of the plaintiff, and that the claim 
 of the plaintiff to brokerage was recognized by the defendants 
 by their promise to pay it. It did not appear that the defend- 
 ants knew that Eckersdoff and Marwig came to purchase in 
 consequence of information obtained through the plaintiff, and 
 it may be that this fact, if it existed, was designedly -nithheld 
 from them so as to secure commissions for Eckersdoff. How- 
 ever that may be, it is not conclusive against the plaintiff. If 
 he was the producing cause of this sale, his right to compen- 
 sation would not be affected by the circumstance that the de- 
 fendants were ignorant of it at the time, nor should he be 
 . prejudiced by the acts of others. It was not error to refuse 
 the non-suit and submit the facts to the jury. Some of those 
 facts were controverted by the defendants, and considerable 
 evidence was produced to prove that the plaintiff had no 
 agency in procuring the purchaser, and that the sale was 
 effected entirely independent of him. It is not our province 
 to pass upon the facts. The Court fairly submitted the ques- 
 
176 ILLUSTKATIVE CASES 
 
 tion, whether the plaintiff was the procuring cause of the sale, 
 to the jury, and their decision is conclusive upon us. 
 
 The point is made, that there was no evidence of the rate 
 of commissions nor of the value of the plaintiff's services. 
 The plaintiff claimed a specific sum agreed upon, and the 
 evidence was mainly directed to the question whether such 
 sum had been fixed by the parties, but there was some evidence 
 which might legitimately guide the jury upon that question. 
 The plaintiff testified, upon cross-examination, that he received 
 one per cent., which was $700, frotn the seller upon the sale to 
 the defendants, and that his whole commission would have 
 been $1,750, which would be. two and a half per cent., and 
 that when the defendants requested him not to make any 
 further efforts to sell the property for them, one of them said, 
 " you shall have your commission or your pay any how." 
 From these facts, if true, it might be inferred that the usual 
 rate was two and a half per cent., and that defendants referred 
 to that rate in their promise. It is true that the plaintiff 
 stated that he received from the first sellers one-half of the 
 brokerage, and that was one per cent., or $700, but when asked 
 the distinct question how much his whole commission would 
 be, he answered $1,750, which was two and a half per cent. It 
 is unnecessary to consider whether the evidence given of the 
 alleged sum agreed to be paid would be any criterion for the 
 jury in a,warding damages. The other evidence, although 
 rather slight, was sufficient to uphold the verdict. 
 
 The learned counsel for the defendants also insists that, iu- 
 asmuch as the complaint is upon a contract for a specific sum, 
 the plaintiff could not recover as upon a. quantum meruit. This 
 point is not tenable for several reasons. 
 
 1. The complaint contains sufficient averments to enable the 
 plaintiff to recover the value of the services rendered, without 
 reference to the allegation of an agreed compensation. 2. At 
 most it was only a variance between pleading and proof, which 
 might be disregarded unless it misled the defendants, which 
 was not pretended : Code, § 169. 3. This objection was not 
 taken at the trial. The exception to that part of the charge 
 
IN AGENCY. 177 
 
 authorizing the jury, if they found that no specific sum was 
 agreed upon, to find the value of the services, was too general 
 to raise this question. The attention of the Court should have 
 heen called to the point, as, if valid, it might then have been 
 obviated by an amendment. 
 
 The offer to prove what share of the recovery the plaintiff 
 had agreed to give his attorney was properly rejected. It was 
 immaterial ; as such arrangements are now lawful, a party is 
 not discredited as a witness by making them. Nor does an 
 agreement to give an attorney a share of a recovery, for his 
 services, give him such an interest in the cause of action as 
 would make his admissions proper or make him liable for 
 costs. 
 
 So, whether the defendants had realized profits from the sale 
 was immaterial. When the defendants made the contract of 
 sale the duties of the plaintiff ceased, and his right to com- 
 pensation was then fixed, whether the defendants ever realized 
 profits or not. The ofi'er only contemplated profits then re- 
 alized, without taking into account the unpaid purchase- 
 money. Besides, the question of profits could only be material 
 under the special contract, which was not found to exist. 
 
 We do not find that any substantial error of law was com- 
 mitted on the trial, and the judgment must be afiirmed. 
 
 Judgment affirmed. 
 
 TurnbuU v. Northwestern Co., 46 Minn. 513 ; Walton v. Clark, 54 Minn. 341. 
 The agent is entitled to reimbursement for all proper outlays in connection 
 with the agency : Searing v. Butler, 69 111. 575. 
 Indemnity : Guimey v. Eailway Co., 43 Minn. 496. 
 
 12 
 
178 ILLUSTKATIVE CASES 
 
 D 
 LIABILITY OF PRINCIPAL TO THIED PARTIES. 
 
 1 
 
 Disclosed Principals. 
 
 The principal is liable to third parties for every act of the agent 
 done Tvithin the apparent scope of the authority. 
 
 Johnson v. Hurley. 
 
 Supreme Court of Missouri, 1893. 
 
 115 Mo. 513. 
 
 Macparlane, J. The suit is ejectment to recover possession 
 of the northwest quarter, section 5, township 53, range 7, in 
 Ralls County. The answer set up an equitable defense to the 
 effect that defendant had purchased the land from the duly 
 authorized agent of the plaintiffs, had received from said 
 agent deeds purporting to be duly executed and acknowledged 
 by plaintiffs and purporting to convey to him said lands ; that 
 he had paid to said agent the entire purchase price for the land, 
 to wit, $1,650, its fair value, and had been put in possession 
 under his said purchase; that he had in good faith fenced 
 said land and erected thereon a dwelling-house and other 
 valuable and permanent buildings and improvements, and 
 prayed specific performance. The reply denied the new 
 matter of the answer. 
 
 The cause was tried as a suit in equity for specific perform- 
 ance of a contract for the conveyance of land, and a decree 
 entered for defendant according to the prayer of the answer, 
 and plaintiffs appealed. 
 
 The evidence showed that about the year 1836 one Peter 
 Johnson, a resident of Morristown, N. J., entered about twenty- 
 five hundred acres of land situate in Ralls County, Mo ; that 
 said Peter Johnson died in the year 1854, leaving plaintiffs 
 John M. and Martha J. Johnson, and one Phoebe Johnson, 
 since deceased, without issue, his only heirs-at-law. About 
 
IN AGENCY. 179 
 
 the year 1868 plaintiffs appointed one Joseph R. "Winchell, of 
 ,Hannibal, Mo., as their agent. Soon after this, plaintiff John 
 M. moved to the State of Illinois, the two sisters remaining in 
 J^ew Jersey. 
 
 Winchell not proving a satisfactory agent, about the year 
 1878, plaintiffs sent out to Missouri Finley A. Johnson, a son 
 of plaintiff, John M. Johnson, then a lawyer and judge of 
 JSTewark, N. J., to settle with Winchell. A settlement was 
 made, Winchell discharged, and the said Finley A. appointed 
 in his stead without, as plaintiffs claim, authority to make sales 
 of the land. 
 
 On the 16th of April, 1881, the said Finley A. Johnson, 
 a,ssuming to act as the agent of plaintiffs and their sister 
 Phoebe, sold to defendant the east half of said northwest 
 -quarter for the sum of |800, and afterward on January 10, 
 1882, he sold him the west half of said quarter for the sum of 
 4850 ; that defendant paid the purchase-money to the said 
 Finley A. Johnson at the respective dates of sale and received 
 from him deeds purporting to be signed and acknowledged by 
 plaintiffs and said Phoebe. Under these purchases defendant 
 went into possession of the land which was then unimproved, 
 fenced it, built a dwelling-house and other buildings thereon, 
 •and reduced it to cultivation. 
 
 The evidence further showed that the deeds and the 
 .acknowledgments were forged by the said Finley A., and that 
 plaintiffs never knew that contracts or deeds had been made or 
 that money had been paid their agent until 1884, after he had 
 absconded. 
 
 The question is whether these sales made by their agent 
 ■were binding on plaintiffs. 
 
 1. The eA'idence leaves no doubt that plaintiffs' agent made 
 the contracts with defendant for the sale of the land, assuming 
 to act for them, that he received the purchase-money, delivered 
 a deed to which their names were signed and to which an ac- 
 knowledgment, certified in due form by the said agent as 
 notary public, was attached, and that under said transaction, 
 and relying on it, defendant in good faith went into the pos- 
 
180 ILLUSTRATIVE CASES 
 
 session and made valuable and lasting improvements. Under 
 these circumstances, if said agent was authorized to make the 
 sale, it would be the grossest injustice and fraud on defendant to 
 deny him the benefit of the contract for the reason that it was 
 not in writing as required by the statute of frauds. To prevent 
 such injustice Courts of Equity have uniformly held that such 
 part performance relieves the contract of the infirmity created 
 by the statute, and specific performance will not be denied : 
 Emmel v. Hayes, 102 Mo. 193; Bowles v. Wathan, 54 Mo, 
 264. 
 
 2. The question then is, whether Finley A. Johnson had 
 authority from plaintiifs to make a sale of these lands. 
 
 It may be stated, in the first place, as a general rule, that an 
 agent can only act within the circumscribed authority given 
 him by his principal, and one who deals with him is put upon 
 his guard by the very fact that he is dealing with an agent and 
 he must ascertain for himself the nature and extent of his 
 authority. The burden is, therefore, always cast upon one 
 claiming the benefit of a contract made with another who 
 assumes to act as the agent of a third person to establish by 
 satisfactory evidence that the contract relied upon was with- 
 in the scope of the agent's authority : Mechem on Agency, 
 §§ 276-289, and cases cited. 
 
 3. The evidence we think fails to establish an express 
 authority from the plaintiffs to the said Finley A. Johnson to 
 conclude contracts for the sale of these Missouri lands, or 
 to make the particular contract in question. Both of them in 
 testifying in the case very emphatically deny such authority, 
 and no evidence was introduced by defendant showing directly 
 that any was given. The authority then, if any existed, must 
 be implied or presumed from the conduct of the parties. 
 
 The general rule, which accords with the decisions in this 
 State, is given by Mechem in his work on Agency, as follows: 
 " It may therefore be stated as a general rule that, whenever a 
 person has held out another as his agent authorized to act for 
 him in a given capacity, or has knowingly and without dissent 
 permitted such other to act as his agent in such capacity ; or 
 
IN AGENXY. 181 
 
 ^here 'his habits and course of dealing have been such 
 as to reasonably warrant the presumption that such other was 
 his agent authorized to act in that capacity, whether it be in a 
 single transaction or in a series of transactions, his authority 
 to such other to act for him in that capacity will be con- 
 clusively presumed, so far as it may be necessary to protect 
 the rights of third persons who have relied thereon in good 
 faith and in the exercise of reasonable prudence, and he will 
 not be permitted to deny that such other was his agent, 
 authorized to do the act that he assumed to do, provided that 
 -such act is within the real or apparent scope of the presumed 
 authority :" Rice v. Groffmann, 56 Mo. 434 ; Summerville v. 
 Railroad, 62 Mo. 391. 
 
 We are of the opinion that authority to make these sales is 
 ■clearly implied from the conduct of the parties. One of the 
 -owners of the land, a preacher, lived in the State of Illinois, 
 the other two, unmarried ladies, lived in the State of New Jer- 
 sey. So far as appears no one of them ever visited the land or 
 gave any personal attention to it. From 1868 to 1883 it was 
 in the hands of agents for sale. For most of this time the said 
 Finley A. Johnson, a son of one of the owners and a nephew 
 of the other two, a lawyer, a notary public and judge of 
 a court, who lived in the State of New Jersey, was one of the 
 agents. The acknowledgment of deeds was made before him ; 
 he paid taxes ; he delivered deeds to purchasers ; he collected 
 purchase-monej'' ; took notes and deeds of trust in his own 
 name for deferred payments; he removed other local agents 
 and made settlements with them ; he was in fact for years the 
 .medium through whom all the business was transacted. 
 
 Plaintiff John M. Johnson testified on direct examination : 
 "The authority of Finley A. Johnson as given him by 
 us in reference to our Missouri lands was to look after the pay- 
 ment of taxes, receive applications and offers for the land and 
 the terms, and to transmit the same to us, and when these 
 applications, offers, and terms were considered by us they were 
 referred back to him with instructions. He had no authority 
 "whatever to sell the lands or to close the sales for lands. That 
 
182 ILLUSTRATIVE CASES 
 
 was done by us. He only received proposals to purchase. We- 
 never gave him any written authority or power of attorney. I 
 never heard of the sales to defendant Hurley or the Hurley 
 deeds until long after the purported deeds had passed." 
 
 The other plaintiff gave substantially the same testimony. 
 
 On cross-examination, the said John M. Johnson testified : 
 " We sent the deeds on to him (referring to a former agent)^ 
 and he collected and kept the money. My son, F. A. Johnson^ 
 discharged him, and he became our agent in 1873. I do not 
 know definitely who paid the taxes from then until 1883, but 
 suppose that he did ; he was to pay them. From 1873 to 
 1880 there were a few sales of the Missouri lands made. 
 These sales were made through the agency of F. A. Johnson in 
 some form. Made virtually by me, he collected the purchase- 
 money. I authorized him to do that. The deed to W. L. 
 Schultz made August 31, 1873, is a genuine deed signed by 
 us, and the acknowledgment was made before Finley A.. 
 Johnson, who was then a notary public and judge of a court 
 in New Jersey. That sale was made as usual by being 
 submitted to and ratified by myself and sisters ; it could not 
 be a complete sale otherwise. I don't know who the con- 
 sideration was paid to. In 1878 James F. Hedrick purchased 
 some land of us ; our signatures to his deed are genuine. I do 
 not know who made the sale, but know under the general con- 
 ditions of sale F. A. Jdhnson made the sale and it was ratified 
 by us. I presume F. A. Johnson delivered the deed and col- 
 lected the purchase-money. We also sold some land to Thomas 
 J. Richards and Jehu Underwood in 1880. Our signatures to the 
 deed are genuine and the acknowledgments of my sisters were 
 made before F. A. Johnson. I never delivered any of the 
 deeds myself; the money for the purchase of the lands was 
 paid to Finley A. Johnson, and he delivered the deeds. I 
 presume this was usually the case. The leases to such lands 
 as were leased, I think, were made by F. A. Johnson, and he 
 collected the lease money. Finley A. Johnson was my son, 
 and a rising man; of course I was proud of him. I trusted' 
 him, and yet not so implicitly as to permit him to transact my 
 
IN AGENCY. 183 
 
 business without first referring it to me. In fixing the prices of 
 the land we were generally governed by the offers made by the 
 purchasers and referred to us. I presume his judgment was 
 taken after he had made a personal inspection of the land. 
 The land was all for sale. He paid money to me on these 
 sales without telling me where it came from, and of course I 
 cannot remember the particular transactions." 
 
 The manner in which this business was transacted through 
 this agent for ten or more years was known in the community 
 and to defendant. All inquiries in regard to the land were 
 made of this agent ; prices were given by him ; purchase- 
 money paid to and deeds received from him ; lands leased and 
 rents collected by him, and all under express authority. 
 There was also evidence that a former agent, the one removed 
 by Finley A., made sales and executed contracts upon which 
 plaintiffs afterward made deeds. That agent was removed' 
 for withholding money and Finley A. was appointed with 
 express authority to collect purchase-money. Why this agent 
 with all these express powers should have been restricted only 
 in the matter of making sales is not explained by the evi- 
 dence. 
 
 We think the conduct of plaintiffs in the transaction of this 
 business such as would reasonably have induced defendant to 
 believe that the agent with whom he dealt had authority to 
 make the sales, and after having acted upon that belief, paid 
 the purchase price and expended large sums in improvements, 
 plaintiffs will not now be heard to dispute the authority. 
 
 We are well satisfied with the conclusions reached by the 
 Circuit Judge, and affirm the judgment. 
 
 U. S. V. Voss, 1 Cranch 0. C. 101 ; Moir v. Hopkins, 16 111. 313 ; Innerarity 
 V. Merchants' Bank, 139 Mass. 332-; Constant v. University, 111 N. Y. 604. 
 
184 ILLUSTRATIVE CASES 
 
 2 
 
 Undisclosed Principals. 
 Simple Contracts. 
 
 An undisclosed principal is liable upon all simple contracts made 
 by his authorized agent in his behalf. 
 
 Lovell v. Williams. 
 Supreme Judicial Court of Massachusetts, 1878. 
 125 Mass. 439. 
 Morton, J. This is an action of contract to recover for mer- 
 chandise, such as seeds, fertilizers, and farming tools, sold and 
 delivered to the husband of the defendant, and used on the 
 farm owned by the defendant, and on which she and her hus- 
 band resided. The ground upon which the plaintiff bases his 
 claim is that the husband was carrying on the farm as the 
 agent of the defendant, and that he has the right to resort to 
 her as an undisclosed principal. 
 
 1. The defendant testified " that her husband had always 
 carried on the farm by her leave, and was not her agent, and 
 that she had nothing to do with the carrying on of the farm." 
 The plaintiff was permitted, in rebuttal, against the objection 
 of the defendant, to introduce testimony tending to show 
 " that, in settlement of a bill for similar merchandise used on 
 said farm, and sold, delivered, and charged by another mer- 
 chant in Worcester to the defendant's husband, in like man- 
 ner that the plaintiff's merchandise was, and during the period 
 of time covered by the plaintiff's account, this defendant gave 
 her note, and, after one renewal, paid it." 
 
 We are of opinion that this evidence was competent. It 
 proved an act of the defendant which had some tendency to 
 contradict her testimony, and to show that she recognized her 
 husband as her agent in carrying on the farm. 
 
 2. The defendant asked the Court to rule that " when a 
 married woman is living with her husband, whether on her 
 real estate or not, in the absence of controlling evidence to the 
 
IN AGENCY. 185 
 
 contrary, the presumption is that the expenses of the family 
 and the ordinary expenditures for carrying on the place, are the 
 husband's, and not the wife's." This ruling was properly re- 
 fused. The case did not call for any ruling as to what would 
 be the presumption if the husband and wife were living on 
 real estate not her own property, or as to what would be the 
 presumption in regard to " the expenses of the family." 
 
 The instructions given in response to the request were such 
 as were required by the evidence in the case, and were sufii- 
 ■ciently favorable to the defendant. If a married woman lives 
 with her husband upon real estate which is her sole and sepa- 
 rate property, there is no presumption of law that she is not 
 hable, and that he is liable, for " the ordinary expenditures 
 for carrying on the place." Her liability in the case at bar 
 depends upon the question of fact whether she has, personally 
 or through an agent, entered into any contracts in reference to 
 her separate property ; and this question was properly sub- 
 mitted to the jury. 
 
 3. The defendant requested the Court to rule that " the 
 plaintiff cannot recover under the third count of his declara- 
 tion, on the pleadings and the evidence." In regard to this 
 count, it appears from the bill of exceptions that the goods 
 embraced therein were sold prior to 'January 1, 1870 ; that on 
 that day the note of the husband of the defendant " was given 
 for the account declared on in the third count," and that the 
 plaintiff did not discover until 1872 that the defendant owned 
 the farm, and was liable to him as the undisclosed principal of 
 her husband. At the trial, the defendant contended that this 
 evidence proved conclusively that the account had been paid. 
 The third request was refused, and the presiding Judge, " after 
 stating to the jury that the law in Massachusetts made a nego- 
 tiable promissory note, given for an account, prima facie pay- 
 ment of the account, added that, when the note given is not 
 the obligation of air the parties who are liable for the account, 
 the presumption, if it exists at all, is of much less weight ; and 
 that, in dealing with the question whether the note given in 
 this case was received in payment, they were to consider this 
 
186 ILLUSTRATIVE CASES 
 
 principle, if they should find upon the evidence that the hus- 
 band was in fact the agent of the wife in making the purchase 
 of the plaintiff, and that she was her husband's undisclosed 
 principal in the transaction." To this instruction the defend- 
 ant excepted, as not applicable to the facts in the case. 
 
 The rule in Massachusetts is, that if a negotiable promissory 
 note is given for a pre-existing debt, the presumption is that 
 the creditor intended to receive it in payment of such debt. 
 But this presumption may be rebutted and controlled ; and 
 the fact that such presumption would deprive the creditor 
 taking the note of the substantial benefit of some security, such 
 as a mortgage, guaranty, or the like, has been held to be suffi- 
 cient evidence to meet and repel the presumption : Butts v. 
 Dean, 2 Met. 76 ; Curtis v. Hubbard, 9 Met. 322 ; Appleton v. 
 Parker, 15 Gray, 173 ; Tucker v. Drake, 11 Allen, 145. 
 
 The case of French v. Price, 24 Pick. 13, more nearly resem- 
 bles the case at bar. In that case, the plaintiff sold goods to 
 an agent acting for undisclosed principals. He afterward, took 
 the notes of the agent for the account, and; the principal ques- 
 tion of fact in the case was whether, at the time he took the 
 notes, he knew that the agent was acting for undisclosed prin- 
 cipals. The Court, in the opinion, say : " If there wag any de- 
 ception or fraud in the giving of the notes, or if they were 
 accepted under an ignorance of the facts, or a misapprehension 
 of the rights of the parties, the vendors ought not to be bound 
 by the acceptance. They may repudiate the notes, and rely 
 upon the original contract of sale. If, when the notes were 
 taken, the vendors supposed that the promisors only were 
 holden for the goods, and that they were not changing the 
 parties, but only taking new security from the same parties, 
 then it is very clear that the original contract was not so far 
 extinguished as to prevent a resort to it when new parties were 
 discovered." 
 
 In the case at bar, the plaintiff, when he took the note in 
 question, was ignorant of the fact that the husband of the de- 
 fendant was her agent, and that she was liable for the goods 
 sold. He supposed that the promisor on the note was alone 
 
IN AGENCY. 187 
 
 liable for them. It would work a fraud on him to hold that 
 the original contract was extinguished so as to prevent a 
 resort to the defendant, when he discovered her liability 
 under it. 
 
 It is clear, therefore, that the instructions given were suffi- 
 ciently favorable to the defendant. 
 
 Exceptions overruled. 
 
 Byington v. Simpson, 134 Mass. 169 ; Hyde v. Wolf, 4 La. 234 ; Church ». 
 Wiley, 2 Hill Ch. (S. C.) 584 ; Henderson v. Mayhew, 2 Gill. (Md.) 393. 
 
 Specialties. ' 
 
 In case of specialties only those are bound v7ho appear on the face 
 of the instrument to be parties to it. 
 
 Bkiggs v. Partridge. 
 New York Court of Appeals, 1876. 
 
 64 N. Y. 357. 
 
 Appeal from judgment of the General Term of the Superior 
 Court of the city of New York affirming a judgment in favor 
 of defendants, entered upon an order dismissing plaintiffs' com- 
 plaint on trial. (Reported below, 7 J. & S. 339.) 
 
 This action was brought to recover the purchase-money un- 
 paid under a contract for the purchase and sale of land. 
 
 The complaint alleged that the plaintiffs entered into an 
 agreement in writing with one L. P. Hurlburd, who was act- 
 ing for and under the authority of the defendants, " whereby 
 these plaintiffs sold and the defendants through said Hurlburd 
 bought " a certain described piece of land, " for the sum of 
 $7,200, which said sum the defendants, through their agent, 
 the said Hurlburd, agreed to pay," as specified. That it was 
 further agreed that the plaintiffs should deliver the deed, and 
 that the defendants should accept the same and pay the bal- 
 ance of the purchase-money unpaid on the 1st day of February, 
 1874 ; that the defendants, through said Hurlburd, paid on the 
 delivery of the agreement |100 ; that on the said 1st day of 
 
188 ILLUSTRATIVE CASES 
 
 J'ebruary, 1874, the plaintiffs were " ready to carry out on their 
 part the agreement aforesaid by executing and dehvering to 
 said Hurlburd, for and on account of said defendants, a good 
 and sufi&cient deed of the premises hereinbefore described." 
 Whereas the defendants wholly failed on their part to fulfill 
 said agreement or to take title to said property, but on the con- 
 trary refused, and they have ever since refused so' to do, and 
 the plaintiffs demanded judgment that the defendants perform 
 said agreement and pay to plaintiffs the sum agreed. The 
 answer was a general denial. 
 
 Plaintiffs' counsel, in opening the case on the trial, said that 
 i;he agreement on which the plaintiffs relied was in writing ; 
 that it was made by the plaintiffs as vendors, and Llewellyn 
 P. Hurlburd as vendee ; that the written instrument did not 
 show but that Hurlburd was a principal party ; that it was 
 signed and sealed by Hurlburd individually ; that the name 
 of defendant Partridge did not appear in the instrument, but 
 that plaintiffs would prove that the said Hurlburd was acting 
 solely for and under the direction of Thomas M. Partridge, who 
 paid or caused to be paid the first payment under the contract ; 
 the said Hurlburd was the agent and trustee of said Partridge 
 in the transaction, and the authority given by Partridge to 
 Hurlburd was oral. 
 
 On this opening and on the complaint the defendants' coun^ 
 sel moved to dismiss the complaint on the grounds : 1. That 
 the facts stated in the opening and by the complaint did not 
 constitute a cause of action, "i. That it was not competent to 
 vary the terms of the written contract by parol proof that the 
 party who executed the same as principal was not a principal 
 but an agent. 
 
 The plaintiffs' counsel further offered to prove that Hurlburd- 
 was constituted by parol agent to enter into and execute the 
 contract in behalf of the defendant Partridge ; that at the time 
 the contract was made the plaintiffs did not know that Part- 
 ridge was the real principal ;, that the plaintiffs tendered a deed 
 to Hurlburd, and did not at that time know that Partridge was 
 the real principal. 
 
IN AGENCY. 189 
 
 The motion was thereupon granted, and plaintiffs' counsel 
 duly excepted. 
 
 Andrews, J. The defendant was not a party to the agree- 
 ment for the sale and purchase of the land. He did not sign 
 it himself, nor did it purport to have been executed for him 
 by Hurlburd. His name does not appear in it, and there is 
 nothing upon the face of the , agreement to indicate that he 
 was in any way connected with or interested in the purchase. 
 The covenants in the agreement; are solely between the plain- 
 tiff and Hurlburd. The former covenants to sell and convey 
 the land to Hurlburd, and Hurlburd covenants to purchase 
 and to pay the purchase-money as stipulated. The defendant 
 took no part in the negotiation of the agreement, and the 
 plaintiff, when he made and executed it, had no knowledge 
 that Hurlburd was acting as the agent of the defendant. The 
 agreement was under seal, each party affixing his own seal to 
 the instrument. Hurlburd, the apparent purchaser, was in 
 fact acting in the transaction as the agent of the defendant, 
 his undisclosed principal, under an oral authority to enter into 
 the contract in his behalf, and the defendant furnished the 
 money to make the down payment to the broker who negoti- 
 ated the sale. This action is brought by plaintiff upon the 
 agreement to recover the unpaid purchase-money, and it is 
 sought to enforce it against the defendant as the real pur- 
 chaser and party, upon the ground that Hurlburd, the nomi- 
 nal purchaser, was acting for him and by his authority in the 
 transaction. The real question is can the vendor, in a sealed 
 executory agreement, inter partes, for the sale of land, enforce 
 it as the simple contract of a person not mentioned in or a 
 party to the instrument, on proof that the vendee named 
 therein, and who signed and sealed it as his contract, had oral 
 authority from such third person to enter into the contract of 
 purchase, and acted as his agent in the transaction, and can 
 the vendor on this proof, there having been no default on his 
 part, and he being ready and willing to convey, recover of 
 such third person the unpaid purchase-money ? This question 
 
190 ILLUSTRATIVE CASES 
 
 here arises in a case where the vendor, so far as it appears, has 
 remained in possession of the land, and where no act of ratifi- 
 cation of the contract by the undisclosed principal has been 
 shown. It is not disputed, and, indeed, it cannot be, that 
 Hurlburd is bound to the plaintiff as covenantor upon the 
 covenants in the agreement. He covenants for himself and 
 not for another, to pay the purchase-money, and by his own 
 seal fixes the character of the obligation as a specialty. He is 
 liable to perform the contract irrespective of the fact whether 
 it can be enforced against his nominal principal. On the other 
 hand it is equally clear that Hurlburd's covenant cannot be 
 treated as or made the covenant of the defendant. Those 
 persons only can be sued on an indenture who are named as 
 parties to it, and an action will not lie against one person on 
 a covenant which purports to have been made by another : 
 Beckham v. Drake, 9 M. & W. 79 ; Spencer v. Field, 10 Wend. 
 88 ; Townsend v. Hubbard, 4 Hill, 351. 
 
 In the case last cited it was held that where an agent duly 
 authorized to enter into a sealed contract for the sale of the 
 land of his principals, had entered into a contract under his 
 own name and seal, intending to execute the authority con- 
 ferred upon him, the principals could not treat the covenants 
 made by the agent as theirs although it clearly appeared in the 
 body of the contract that the stipulations were intended to be 
 between the principals and purchasers, and not between the 
 vendees and the agent. The plaintiffs in that case were the 
 owners of the land embraced in the contract, and brought 
 their action in covenant to enforce the covenant of the vendees 
 to pay the purchase-money, and the Court decided that there 
 was no reciprocal covenant on the part of the vendors to sell, 
 and that for want of mutuality in the agreement the action 
 could not be maintained. It ip clear that unless the plaintiff 
 can pass by the persons with whom he contracted and treat 
 the contract as the simple contract of the defendant, for whom 
 it now appears that Hurlburd was acting, this action must fail. 
 The plaintiff invokes in his behalf the doctrine that must 
 now be deemed to be the settled law of this Court, and which 
 
IN AGENCY. 191 
 
 is supported by high authority elsewhere, that a principal may 
 be charged upon a written parol executory contract entered 
 into by an agent in his own name, within his authority, al- 
 though the name of the principal does not appear in the in- 
 strument, and was not disclosed, and the party dealing with 
 the agent supposed that he was acting for himself, and this 
 doctrine obtains as well in respect to contracts which are re- 
 quired to be in wliting as to those where a writing is not es- 
 sential to their validity : Higgins v. Senior, 8 M. & W. 834 ; 
 Trueman v. Loder, 11 Ad. & Ellis, 594 ; Dykers v. Townsend, 
 24 N. Y. 61 ; Coleman v. First Nat. Bk. of Elmira, 63 N. Y. 
 393 ; Ford v. Williams, 21 How. 289 ; Huntington v. Knox, 7 
 •Gush. 371 ; The Eastern R. R. Co. v. Benedict, 5 Gray, 566 ; 
 Hubbert v. Borden, 6 Wharton, 91 ; Browning v. Provincial 
 Ins. Co., 5 L. R. [P. C] 263 ; Calder v. Dobell, 6 L. R. [C. P.] 
 486; Story on Agency, §§ 148, 160. 
 
 It is, doubtless, somewhat difficult to reconcile the doctrine 
 Jiere stated with the rule that parol evidence is inadmissible 
 to change, enlarge, or vary a written contract, and the argu- 
 ment upon which it is supported savors of subtlety and refine- 
 ment. In some of the earlier cases the doctrine that a written 
 contract of the agent could be enforced against the principal 
 was stated with the qualification, that it applied when it could 
 be collected from the whole instrument, that the intention was 
 to bind the principal. But it will appear from an examina- 
 tion of the cases cited, that this qualification is no longer re- 
 garded as an essential part of the doctrine. Whatever ground 
 there may have been originally to question the legal sound- 
 ness of the doctrine referred to, it is now too firmly established 
 "to be overthrown, and I am of opinion that the practical efifect 
 •of the rule as now declared is to promote justice and fair deal- 
 ing. There is a well-recognized exception to the rule in the 
 case of notes and bills of exchange resting upon the law mer- 
 chant. Persons dealing with negotiable instruments are pre- 
 sumed to take them on the credit of the parties whose names 
 appear upon them ; and a person not a party cannot be charged 
 upon proof that the ostensible party signed or indorsed as his 
 
192 ILLUSTRATIVE CASES 
 
 agent : Barker v. Mechanics' lus. Co., 3 Wend. 94 ; Pentz v. 
 Stanton, 10 lb. 271 ; De Witt v. Walton, 9 N. Y. 571 ; Stack- 
 pole V. Arnold, 11 Mass. 27 ; Eastern R. R. Co. v. Benedict, 5 
 Gray, 566 ; Beckham v. Drake, 9 M. & W. 79. That Hurl- 
 burd had oral authority from the defendant to enter into a 
 contract for the purchase of the land, and that he was acting 
 for the defendant in making it is admitted ; and if the con- 
 tract had been a simple contract and not a specialty the de- 
 fendant would, I think, have been bound by it within the- 
 authorities cited. No question would arise under the statute 
 of frauds, for the statute prescribing what shall be necessary 
 to make a valid contract for the sale of lands requires only- 
 tliat the contract, or some note or memorandum thereof ex- 
 pressing the consideration, should be in writing and subscribed 
 by the party by whom the sale is to be made, or his agent law- 
 fully authorized : 2 R. S. 135, §§ 8, 9. In this case the contract 
 was signed by the vendors, and even if it had been executed 
 on their part by an agent pursuant to an oral authority, it 
 would have been a valid execution within the statute > Law- 
 rence V. Taylor, 5 Hill, 113 ; Worrall v. Munn, 1 Seld, 229. 
 But the vendee's contract need not be in writing : McCrea v. 
 Purmort, 16 Wend. 469. 
 
 We return, then, to the question originally stated : Can a 
 contract, under seal, made by an agent in his own name for 
 the purchase of land, be enforced as the simple contract of the 
 real principal when he shall be discovered ? No authority for 
 this broad proposition has been cited. There are cases which 
 hold that when a sealed contract has been executed in such 
 form, that it is, in law, the contract of the agent and not of the 
 principal ; but the principal's interest in the contract appears 
 upon its face, and he has received the benefit of performance 
 by the other party, and has ratified and confirmed it by acts 
 in pais, and the contract is one which would have been valid 
 without a seal, the principal may be made liable in assumpsit 
 upon the promise contained in the instrument, which may be 
 resorted to to ascertain the terms of the agreement : Randall 
 V. "Van Vechten, 19 J. R. 60 ; Du Bois v. The Del. & Hud. 
 
IN AGENCY. 193 
 
 Canal Co., 4 "Wend. 285 ; Lawrence v. Taylor, 5 Hill, 107 ; see, 
 also, Evans v. "Wells, 22 "Wend. 324 ; "Worrall v. Munn, supra ; 
 Story on Agency, § 277 ; 1 Am. Lead. Gas. 735, note. 
 
 The plaintiflf 's agreement in this case was with Hurlburd 
 and not with the defendant. The plaintiff has recourse against 
 Hurlburd on his covenant, which was the only remedy which 
 he contemplated when the agreement was made. . No ratifica- 
 tion of the contract by the defendant is shown. To change it 
 from a specialty to a simple contract, in order to charge the 
 defendant, is to make a different contract from the one the 
 parties intended. A seal has lost most of its former signifi- 
 cance, but the distinction between specialties and simple con- 
 tracts if not obliterated. A seal is still evidence, though not 
 conclusive, of a consideration. The rule of limitation in re- 
 spect to the two classes of obligations is not the same. "We find 
 no authority for the proposition that a contract under seal may 
 be turned into the simple contract of a person not in any way 
 appearing on its face to be a party to or interested in it, on 
 proof de hors the instrument, that the nominal party was act- 
 ing as the agent of another, and especially in the absence of 
 any proof that the alleged principal has received any benefit 
 from if., or has in any way ratified it, and we do not feel at lib- 
 erty to extend the doctrine applied to simple contracts executed 
 by an agent for an unnamed principal so as to embrace this 
 case. The general rule is declared by Shaw, C. J., in Hunting- 
 ton V. Knox, 7 Cush. 374 : " Where a contract is made by deed, 
 under seal on technical grounds, no one but a party to the deed 
 is liable to be sued upon it, and therefore if made by an attor- 
 ney or agent it must be made in the name of the principal in 
 order that he may be a party, because otherwise he is not 
 bound by it." 
 
 The judgment of the General Term should be affirmed. 
 
 Judgment affirmed. 
 
 Stinchfleld v. Little, 1 Greenl. (Me.) 231 ; Elwell v. Shaw, 16 Mass. 42; Mc- 
 Clure V. Herring, 70 Mo. 18 ; Knight v. Clark, 48 N. J. L. 22. 
 
 13 
 
194 ILLUSTRATIVE CASES 
 
 3 
 
 TOETS OF THE AgENT. 
 
 The principal is liable in tort for the agent's wrongful act if com- 
 mitted within the scope of his employment. 
 
 Noble v. Cunningham. 
 
 Supreme Court of Illinois, 1874. 
 
 74 111. 51. 
 
 Craig, J. This was an action on the case, brought by John 
 Cunningham, in the Superior Court of Cook County, against 
 appellants, John T. Noble and Francis B. Little, to recover for 
 an injury received, resulting in the loss of a hand, caused by 
 the moving of a car on the side track of the Illinois Central 
 Railroad Company, in the city of Chicago, by the servants of 
 appellants. 
 
 A trial of the cause was had before a jury, which resulted in 
 a verdict and judgment in favor of appellee for $3,000. 
 
 The appellants insist first, that the verdict is unsupported by 
 the evidence. ' 
 
 We have carefully considered the testimony contained in the 
 record, and find it ample upon which to base the verdict of the 
 jury. 
 
 At the time appellee was injured he was a laborer in the 
 employ of the Illinois Central Railroad Company ; two cars 
 were standing together on a side track of the company ; he 
 went under one of them for the purpose of making some re- 
 pairs ; before doing this, however, he placed a man by the -side 
 of the car to keep watch and notify him should any other car 
 or engine approach ; several feet north of the car to be re- 
 paired, upon the same track, stood a number of cars, also three 
 cars were standing some distance south. 
 
 Appellants, who kept a lumber yard in Chicago, on the 
 morning of the accident sent three of their hired men with 
 lumber to the railroad to be carred and shipped. The car to 
 be loaded was one of the number standing on the track, north 
 
I^ AGENCY. 195 
 
 of where appellee was at work. The servants of appellants, 
 in order to facilitate the loading of the car, undertook to move 
 the cars between the one they desired to load and the car 
 where appellee was at work, further south in the direction of 
 appellee. They hitched a span of horses to the first car to be 
 moved and started it, but when in motion they were unable 
 to control it, and before appellee had any notice of the ap- 
 proach of the car, it struck the one adjoining the car appellee 
 was repairing, which moved it forward and crushed appellee's 
 hand. 
 
 The railroad company had in its employ a man provided 
 •with an engine, whose duty and business it was to move all 
 oars when necessary to accommodate its patrons. 
 
 It is claimed application was made to the agent to move the 
 car, and the engine provided for that purpose was then in use, 
 aild the three servants of appellants were directed by the agent 
 to move the cars themselves ; this, however, was denied by the 
 a.gent. 
 
 But independent of this fact, if the servants of appellants 
 undertook to move the car, they were bound to exercise proper 
 ■care and caution, and if they failed to observe this duty, and 
 appellee was injured, when in the exercise of due care, through 
 the neglect and want of ordinary care on the part of the serv- 
 ants of appellants, the damages sustained by appellee must 
 be visited upon appellants. 
 
 There is no pretense that appellee failed to observe due care 
 and caution at the time of the accident. The controverted 
 question is whether appellants' employees were guilty of neg- 
 ligence. They set in motion the car without making any pro- 
 vision whatever for stopping it ; the brake upon it was out of 
 order and could not be used. This they failed to examine. 
 No blocks were permitted to be used in stopping the car ; no 
 examination was made to see if any person was under or 
 sjaont the cars the one moved was bound to come in collision 
 with. In fact no precautions were taken to guard against 
 danger. Under such circumstances the facts'before the jury 
 were sufficient to justify them in arriving at the conclusion 
 
196 ' ILLUSTRATIVE CASES 
 
 that the negligence of appellants' servants was the cause of 
 the injury. 
 
 It is, however, urged that appellants are not liable for the- 
 negligence of their servants in moving the car. 
 
 , The general rule is, that the principal is liable for the tort& 
 of his agent, done in the course of his employmentj although 
 the principal did not authorize, or justify, or participate in, or 
 even if he disapproved them. If the tort is committed by the. 
 agent in the course of his employment while pursuing the busi- 
 ness of his principal, and is not a willful departure from such, 
 employment and business, the principal is liable, although done 
 without his knowledge. 
 
 The three men who moved the car were in the employ, 
 of appellants. They were sent to the railroad to load a car 
 witli lumber ; for the purpose of doing the act they were 
 sent and directed to do, they undertook to move the car. 
 The act of moving the car was a part and parcel of loading 
 the other ; it was not only no departure from the employ^ 
 ment, but will be regarded in the direct course of the em- 
 ployment. 
 
 It is insisted that it was error for the Court to permit proof 
 that an agent of the railroad company said to the servants of 
 appellants, after the accident, that they should never load a car 
 in the yard again. Even if the evidence was improper, its 
 admission had no tendency to prejudice the appellants. The 
 same may be said in iregard to the declaration of the witness 
 Remsey, to which objection was made. 
 
 It is also urged by the counsel of appellants, in a very elab- 
 orate and ingenious argument, that the instructions given for 
 appellee were improper, and that the Court erred in refusing 
 certain instructions asked by appellants. 
 
 While some of the instructions given may be liable to slight 
 technical objections, yet we fail to perceive any substantial 
 error in the law, as given by the Court to the jury. 
 
 The instructions placed the case fairly before the jury. 
 They contained nothing calculated to mislead, and after a 
 careful consideration of the whole record, we are satisfied it 
 
IX AGENCY. 197 
 
 -contains no substantial error. The judgment will therefore be 
 affirmed. 
 
 Judgment affirmed. 
 
 State V. Smith, 78 Me. 260 ; Guille v. Swan, 19 Johns. 382 ; Eaton v. Rail- 
 way, 59 Minn. 520. 
 
 LIABILITIES OF THIRD PARTIES TO AGENTS. 
 
 1 
 When Contract is in Agent's Name. 
 
 If the contract by its terms is made with the agent personally he 
 may enforce it. 
 
 Colburn v. Phillips. 
 
 Supreme Judicial Court of Massachusetts, 1859. 
 
 13 Gray, 64. 
 
 Hoar, J. The plaintiff made a written contract with the 
 ■defendants to ship two hundred tons of stone from Phillips' 
 Wharf in Salem to Norfolk, Va., at the rate of $1.75 a ton, as 
 :soon after they were received as a vessel could be procured, to 
 be delivered in Norfolk, to the order of Gault & Brother ; the 
 plaintiff not to be liable for any expenses at Salem, except the 
 freight as above specified. The plaintiff in his declaration 
 alleges in substance that he made the contract on behalf and 
 for the benefit of the firm of Gault & Brother, and their assigns, 
 'Gault & Christy ; that he delivered the stone at Phillips' 
 Wharf; but that the defendants did not ship it at the price 
 agreed, but at a higher price ; and that Gault & Christy paid 
 the higher rate, under protest, on a part of the stone, and on 
 the rest M'ere compelled to pay it by process of Court of the 
 Admiralty,' with divers costs, expenses, and counsel fees. 
 
 The defendants file an answer, denying some of the material 
 allegations of the declaration ; and insert in their answer a 
 ■demurrer, which now comes before us for adjudication. 
 
198 ILLUSTRATIVE CASES 
 
 Four causes of demurrer are assigned. 1. That by the- 
 plaintiff's own showing the only cause of action belongs to- 
 Gault & Christy, and not to the plaintiff. In support of this 
 it has been argued on the part of the defendants, that a prom- 
 ise made expressly to one who is only the agent of another, 
 from whom the consideration wholly moves, will not support- 
 an action in the name of the agent. Undoubtedly some sup- 
 port to this doctrine can be found in the dicta of judges in 
 several reported cases, and there seems to be some confusion 
 and inconsistency upon the subject in the cases themselves. 
 But upon a careful examination it may appear, that while the 
 reasons given for some of the decisions cannot be well recon- 
 ciled, the decisions are for the most part harmonious, and can 
 be sustained upon sound principles. 
 
 In Gilmore v. Pope, 5 Mass. 491, which was an action upon 
 a subscription for shares in a turnpike company, with a prom- 
 ise to pay the assessments to the plaintiff, who was an agent, 
 of the company, the plaintiff was non-suited, and Parson^, 
 C. J., said : " The action cannot be inaintained in the name of 
 a mere agent of the corporation, as in this transaction the; 
 plaintiff has alleged himself to be ; there being no considera- 
 tion, as between the agent and subscribers, to support an 
 action of assumpsit." This remark of the Chief Justice would 
 seem to assume that, to support a promise, the consideration 
 must always move from the party to whom the promise is 
 made. On examining the case, the promise is found to be a 
 part of a contract to take and pay for shares in the turnpike 
 road, in consideration of being admitted as associates in the 
 corporation. This is very clearly a contract with the corpora- 
 tion. The promise is to pay the assessments to Gilmore or 
 order ; but there is not in terms any promise to Gilmore him- 
 self. The apparent purport, then, as well as the legal effect 
 of the instrument, was an agreement with the corporation 
 from whom the consideration proceeded. It would therefore- 
 stand as a promise to A, upon a consideration received from 
 A, to pay a sum of money to B ; upon which it is now well 
 settled in this Commonwealth that B can maintain no action,. 
 
IN AGENCY. 199 
 
 except under certain peculiar and limited conditions : Mellen 
 V. Whipple, 1 Gray, 317 ; Field v. Crawford, 6 Gray, 116 ; Dow 
 V. Clark, 7 Gray, 198. 
 
 In Buffum v. Chadwick, 8 Mass. 103, the Court decided, that 
 where a note was made to the plaintiff, describing him as 
 agent of the Providence Hat Manufacturing Company, the 
 action could be maintained by him, although the objection 
 was suggested that he was a mere agent, and that the consid- 
 eration moved from the company alone. They distinguish 
 the case of Gilmore v. Pope, which was cited by the defendants' 
 counsel, and observe that in that case " the contract was di- 
 rectly with the corporation." 
 
 In the case of Commercial Bank v. French, 21 Pick. 486, it 
 was decided, that a promissory note made to " the cashier of 
 the Commercial Banlj:," the note being the property of the 
 bank, was a contract with the bank, on which the corporation 
 might sue. Gilmore v. Pope is cited as sustaining the de- 
 cision ; but the case rests upon the doctrine that, by a just cc.n- 
 struction of the language used, as terms of description, the 
 contract was made with the bank. 
 
 In Eastern Railroad v. Benedict, 5 Gray, 561, it was deter- 
 mined that upon an order payable " to D. A. Neale, president 
 of the Eastern Railroad Company," the corporation, being the 
 real party in interest, might sue in its own name. The au- 
 thorities were fully examined and discussed, and we are satis- 
 fied with the correctness of the decision ; but no question arose 
 in that case whether the action might not have been main- 
 tained, if brought in the name of the payee. 
 
 In Gunn v. Cantine, 10 Johns. 387, the action was upon a 
 receipt given to an attorney, upon an undertaking to collect 
 the money due upon a contract belonging to his principal ; but 
 the Court notice the fact that there was no express promise to 
 pay the money collected to the attorney ; and only decide that 
 the promise implied by law from the instrument was to the 
 principal ; a view consistent with that which we have sug- 
 gested in regard to the case of Gilmore v. Pope. 
 
 There is a class of cases in which it has been held that a 
 
200 ILLUSTRATIVE CASES 
 
 promise to a public oflScer, in his official capacity, must be 
 enforced by a suit in the name of the public body for which he 
 acts : Pigott v. Thompson, 3 Bos. & Pul. 147 ; Irish v. Webster, 
 5 Greenl. 171 ; Garland v. Eeynolds, 20 Maine, 45. The prin- 
 ciple is analogous to that which holds that one who signs a 
 contract as a public officer is not personally responsible upon 
 it ; though the ground upon which it is put is, that a just con- 
 struction of the contract makes it the contract of the principal. 
 
 In Thatcher v. Winslow, 5 Mason, 50, Mr. Justice Story 
 held, that an agent, not having any legal or equitable interest 
 in a promissory note, cannot sue as indorsee upon it, The only 
 authorities which he names in support of the doctrine, are 
 Gann v. Cantine and Gilmore v. Pope, before cited. If the 
 effect of the decision is merely this, that putting a promissory 
 note into the hands of an agent, indorsed in blank, without 
 any authority express or implied to him to bring a suit upon 
 it, will not constitute such a transfer of the note to him as will 
 support an action upon it in his name, we have no doubt of 
 its correctness : Sherwood v. Roys, 14 Pick. 172. 
 
 But in Story on Agency, § 394, it is said that " if a negoti- 
 able note is indorsed in blank, and sent by the owner to his 
 agent for collection, the agent may sue thereon in his own 
 name as indorsee ;" and in § 161, that, " if an agent should 
 procure a policy of insurance in his own name, for the benefit 
 of his principal, the agent, as well as the principal, may sue 
 thereon." In §§ 392, 393, 395, 396, the doctrine is stated in 
 the broadest terms, that whenever the contract is made in 
 writing expressly with the agent, and imports to be a contract 
 personally with him, and also where he is the only known or 
 ostensible principal, and therefore is, in contemplation of law, 
 the real contracting party, he may sue in his own name. And 
 such is the general current of the authorities ; and we are satis- 
 fied that, to support an action upon an express promise, it is 
 in general immaterial whether the consideration move from 
 the promisee or from another. 
 
 In Baxter v. Read, cited in Dyer, 272 b, note, it was " ad- 
 judged, that where Baxter had retained Read to be miller to 
 
IN AGENCY. '201 
 
 his aunt, at ten shillings per week, this will support an action 
 on the case ; for although it is not beneficial to Baxter, it is 
 chargeable to Read." 
 
 In Goodwin v. Willoughby, Pop. 178, Doderidge, J., says : 
 " If a stranger saith, ' Forbear such a debt of J. S. and I will 
 pay it,' it is a good consideration for the loss to the plaintiff." 
 
 In Sargent v. Morris, 3 B. & Aid. 277, it was held, that the 
 consignee could not sue for damage to goods shipped on board 
 the defendant's vessel, the consignee being only the agent of 
 the consignors, and having no present interest in the goods at 
 the time of the injury. But there the bill of lading stated the 
 receipt of the goods from the consignors, and undertook " to 
 deliver the same to you, and in your name, according to cus- 
 tom and usage, to Mr. Sargent or his assigns, paying freight," 
 etc. 
 
 In Sims v. Bond, 5 B. & Ad. 393, and 2 Nev. A Man. 616, 
 
 Lord Denman asserts, that " it is a well-established rule of 
 
 , law, that where a contract, not under seal, is made with an 
 
 agent in his own name, for an undisclosed principal, either 
 
 the agent or the principal may sue upon it." 
 
 In the case at bar, the contract was with the plaintiff in his 
 own name, no other principal was disclosed, and it was exe- 
 cuted on his part. We think the promise' of the defendants 
 was upon a sufiicient consideration, and may be enforced by 
 the person to whom it was expressly made. 
 
 2. It is said the declaration does not charge the defendants 
 with the direct consequence of their breach of agreement, but 
 for an excess of freight paid by the plaintiff. The contract and 
 the breach of contract are expressly set forth. The damages 
 occasioned thereby may or may not be correctly claimed or 
 estimated, and it is no cause of demurrer. 
 
 3.. It is objected that the declaration charges the defendant 
 with the costs and expenses of the suit in admiralty. But this 
 is only a statement, in part, of the damages ; and although 
 mistaken, does not affect the right to maintain the action. 
 
 4. The declaration does not state any demand upon the de- 
 fendants for an allowance for the excess of freight, or a demand 
 
202 ILLUSTRATIVE CASES 
 
 on them for the stone. No such statement is necessary. The- 
 gist of the action is the omission to furnish a vessel to carry 
 the stone at the agreed price. When the defendants had 
 shipped the stone at a higher rate, they had broken the con- 
 tract declared on. 
 
 Demurrer overruled, and case remitted. 
 
 Clap V. Day, 2 Greenl. (Me.) 305 ; Van Staphorst v. Pearce, 4 Mass. 258 ;. 
 Ludwig V. Gillespie, 105 N. Y. 65.S ; U. S. Tel. Co. v. Gildersleve, 29 Md. 232 ; 
 Goodman v. Walker, 30 Ala. 482 ; Rhoades v. Blackiaton, 106 Mass. 334 ; Eowe. 
 V. feand. 111 Ind. 206. 
 
 The principal may also sue upon these contracts : Yates v. Foote, 12 Johns.. 
 (N. Y.) 1 ; Dancer v. Hastings, 4 Bing. 2 (13 Eng. Com. Law, 371). 
 
 An agent having a special property or interest in his principal's goods may 
 sue for injuries to this property : Fitzhugh v. Wiman, 9 N. Y. 559 ; Little v. 
 Fossett, 34 Me. 545. 
 
 F 
 
 LIABILITIES OF THIRD PARTIES TO PRINCIPAL. 
 
 Save in the case of specialties, if the contract is made for and in 
 behalf of the principal, though not in his name, he is entitled to all 
 the rights arising therefrom and may enforce the same. 
 
 Huntington v. Knox. 
 
 Supreme Judicial Court of Massachusetts, 1851. 
 
 7 Gush. 371. 
 
 Shaw, C. J. This action is brought to recover the value of 
 a quantity of hemlock bark, alleged to have been sold by the 
 plaintiff to the defendant, at certain prices charged. The 
 declaration was for goods sold and delivered, with the usual 
 money counts. The case was submitted to a referee by a com- 
 mon rule of Court, who made an award in favor of the plain- 
 tiff, subject to the opinion of the Court on questions reserved, 
 stating the facts in his report, on which the decision of those 
 questions depends. 
 
 The facts tended to show that the bark was the property of 
 the plaintiff ; that the contract for the sale of it was made by 
 
IN AGENCY. 203 
 
 her agent, George H. Huntington, by her authority ; that it 
 was made in writing by the agent, in his own name, not stating 
 his agency, or naming or referring to the plainti£F, or otherwise 
 intimating, in the written contract, that any other person than 
 the agent was interested in the bark. 
 
 Objection was made, before the referee, to the admission of 
 'parol evidence, and to the right of the plaintiff to maintain 
 the action in her own name. The referee decided both points 
 in favor of the plaintiff, holding that the action could be 
 maintained by the principal and owner of the property, sub- 
 ject to any set-off, or other equitable defence, which the buyer 
 might have, if the action were brought by the agent. 
 
 The Court are of opinion, that this decision was correct 
 upon both points. Indeed they resolve themselves substan- 
 tially into one ; for prima facie, and looking only at the paper 
 itself, the property is sold by the agent, on credit ; and in the 
 absence of all other proof, a promise of payment to the seller 
 would be implied by law ; and if that presumption of fact 
 can be controverted, so as to raise a promise to the principal 
 by implication, it must be by evidence aliunde, proving the 
 agency and property in the principal. 
 
 It is now well settled by authorities, that when the property 
 of one is sold by another, as agent, if the principal give notice 
 to the purchaser, before payment, to pay to himself, and not 
 to the agent, the purchaser is bound to pay the principal, sub- 
 ject to any equities of the purchaser against the agent. 
 
 When a contract is made by deed under seal, on technical 
 grofinds, no one but a party to the deed is liable to be sued 
 upon it ; and therefore, if made by an agent or attorney, it 
 must be made in the name of the principal, in order that he 
 may be a party, because otherwise he is not bound by it. 
 
 But a different rule, and a far more liberal doctrine, pre- 
 vails in regard to a written contract not under seal. In the 
 case of Higgins v. Senior, 8 Mees. & Welsh. 834, it is laid 
 down as a general proposition, that it is competent to show- 
 that one or both of the contracting parties were agents for 
 other persons, and acted as such agents in making the con- 
 
204 ILLUSTRATIVE CASES 
 
 tract of sale, so as to give the benefit of the contract, on the 
 one hand to, and charge with liability on the other, the un- 
 named principals ; and this whether the agreement be or be 
 not required to be in writing, by the statute of frauds. But 
 the Court mark the distinction broadly between such a case 
 and a case where an agent, who has contracted in his own 
 name, for the benefit, and by the authority of a principal, 
 seeks to discharge himself from liability, on the ground that 
 he contracted in the capacity of an agent. The doctrine pro- 
 ceeds on the ground that the principal and agent may each 
 be bound ; the agent, because by his contract and promise he 
 has expressly bound himself; and the principal, because it 
 was a contract made by his authority for his account : Pat- 
 erson v. Gandasequi, 15 East, 62 ; Magee v. Atkinson, 2 Mees. 
 <S; Welsh. 440 ; Trueman v. Loder, 11 Ad. & El. 589 ; Taintor 
 V. Prendergast, 3 Hill, 72 ; Edwards v. Golding, 20 Verm. 30. 
 It is analogous to the ordinary case of a dormant partner. He 
 is not named or alluded to in the contract ; yet as the contract 
 is shown in fact to be made for his benefit, and by his author- 
 ity, he is liable. 
 
 So, on the other hand, where the contract is made for the 
 benefit of one not named, though in writing, the latter may 
 sue on the contract, jointly with others, or alone, according to 
 the interest : Garrett v. Handley, 4 B. & C. 664 ; Sadler v. 
 Leigh, 4 Campb. 195 ; Coppin v. Walker, 7 Taunt. 237 ; Story 
 on Agency, § 410. The rights and liabilities of a principal, 
 upon a written instrument executed by his agent, do not de- 
 pend upon the fact of the agency appearing on the instrument 
 itself, but upon the facts ; 1, that the act is done in the exer- 
 cise, and 2, within the limits, of the powers delegated ; and 
 these are necessarily inquirable into by evidence : Mechanics' 
 Bank v. Bank of Columbia, 5 Wheat. 326. 
 
 And we think this doctrine is not controverted by the au- 
 thority of any of the cases cited in the defendant's argument. 
 Hastings v. Lovering, 2 Pick. 214, was a case where the suit 
 was brought against an agent, on a contract of warranty upon 
 a sale made in his own name. The case of the United States 
 
IN AGENCY. 205 
 
 V. Parmele, Paine, 252, was decided on the ground that, in an 
 action on a written executory promise, none but the promisee 
 can sue. The Court admit that, on a sale of goods made by a 
 factor, the principal may sue. 
 
 This action is not brought on any written promise made by 
 the defendant ; the receipt is a written acknowledgment, given 
 by the plaintiff to the defendant, of part payment for the 
 bark, and it expresses the terms upon which the sale had been 
 made. The defendant, by accepting it, admits the sale and 
 its terms ; but the law raises the promise of payment. And 
 this is by implication, prima facie, a promise to the agent ; yet 
 it is only prima facie, and may be controlled by parol evidence 
 that the contract of sale was for the sale of property belong- 
 ing to the plaintiff, and sold by her authority to the defend- 
 ant, by the agency of the person \With whom the defendant 
 contracted. 
 
 We are all of opinion that the provisions of Rev. Sts. c. 28, 
 § 201, do not apply to the sale of bark, as made in this case. 
 
 Judgment 'on the award for the plaintiff. 
 
 Mechanics' Bank v. Bank of Columbia, 5 Wheat. 326 ; Higgins v. Senior, 8 
 M. & W. 834 ; Paterson v. Gandaaequi, 15 East, 62. 
 
 If the contract is under seal the action must be brought in the name of 
 the agent : Violet v. Powell, 10 B. Mon. 347. 
 
206 ILLUSTRATIVE CASES 
 
 IV 
 
 OF THE MANNER OF TERMINATING THE 
 RELATION. 
 
 A 
 UNDER THE TERMS OF THE APPOINTMENT. 
 
 1 
 
 By Peefokmance op the Commission. 
 
 Performance by Agent. 
 
 The agency is terminated when the object is accomplished for 
 -which it -was created. 
 
 Moon v. Stone. 
 Supreme Court of Iowa, 1875. 
 40 Iowa, 259. 
 Miller, C. J. The evidence establishes the following state 
 of facts : In the month of June, 1868, Mr. Scarlett applied to 
 the plaintiff, who was then a member of the banking firm of 
 Moore & Mclntire, for the purpose of buying the land in 
 controversy, if they had the agency. On being informed by 
 plaintiff that they were not agents for the land, Scarlett said 
 that Horace Everett, of Council Bluffs, was agent for the 
 owner of the land. Plaintiff then examined and found the 
 land in a printed list of lands for sale by Mr. Everett. Mr. 
 Scarlett desired the plaintiff to buy the land for him ait $5 
 per acre. The plaintiff said he was going to Council Bluffs 
 in a short time, and would see Mr. Everett and try and make 
 the purchase. In a few days after this the plaintiff did see 
 Mr. Everett, and bargained for the land as Scarlett desired 
 him to do. About two weeks after this Scarlett again called 
 at the banking house of Moore & Mclntire, ^did not find 
 
IN AGENCY. 207 
 
 Moore in, but Mclntire was there, and informed him that 
 they had obtained the land for him. In a few days there- 
 after Scarlett called again and paid one-half the purchase- 
 money for the land, and received a written contract for a deed 
 upon the payment of the balance. Scarlett then inquired of 
 plaintiff how much he charged for his services. " He said, 
 usually |20, but in this case $10 would do," and Scarlett then 
 paid the same. 
 
 The plaintiff resided in Page County, where the business 
 was transacted ; Scarlett resided and the land was situated in 
 Taylor County. Some time in the month of July, 1869, a 
 Mr. Farrell called at the banking house of Moore & Mclntire, 
 and inquired if the deed to Scarlett for the land in contro- 
 versy had been received by Moore & Mclntire. He was told 
 by them that it had not. The deed was afterward received, 
 being sent by Everett to Moore & Mclntire's banking house, 
 to be delivered by them to Scarlett on payment of the bal- 
 ance of the purchase-money. On the 27th of August, 1869, 
 Farrell again called, and plaintiff delivered the deed to hira, 
 ■on receipt of the money due, which was remitted to Everett. 
 In delivering the deed and receiving the last payment on the 
 land Moore & Mclntire both testify they were acting as agents 
 of Mr. Everett, whom they charged the usual collection fee of 
 •one-half of one per centum. 
 
 The evidence farther shows that neither plaintiff nor Mc- 
 lntire had any knowledge, at the time they made the pur- 
 chase for Scarlett, that there were any tax liens on the land. 
 The firm of Moore & Mclntire purchased the land at tax sale 
 in October, 1868, and held the tax certificate at the time of 
 the delivery of the deed to Scarlett, and did not make the fact 
 known to him. In making such tax purchase this tract was 
 not selected and purchased by itself, but was purchased at the 
 same time with other lands as they were offered by the treasurer, 
 regardless of the ownership, and without any inquiry, and 
 paying no attention to the numbers, and at the time of the 
 delivery of the deed to Scarlett they had no knowledge that 
 -they then held a certificate for the purchase of the land at tax 
 
208 . ILLUSTRATIVE CASES 
 
 sale, except what was common to all persons from the records. 
 They then held certificates of the same kind for from ten to 
 twenty thousand acres, and their attention was not particularly 
 called to this tract until after the treasurer's deed came into 
 the hands of the plaintiff. 
 
 Upon these facts it is quite clear that the agency of the 
 plaintiff, or of Moore & Mclntire, for the purchase of the land 
 for Scarlett, terminated at the time they delivered to him the 
 written contract for a convej'ance of the land on receipt of the 
 one-half of the purchase-money and the payment of their fees 
 for the services performed. When this was accomplished 
 Moore & Mclntire had done all that they or the plaintiff had 
 been employed to do. They had made, the purchase, as Scar- 
 lett had desired them to do, delivered to him the written con- 
 tract sent to them for Scarlett, received the first payment as 
 per agreement. This completed the services they had under- 
 taken. Scarlett himself so regarded it, for when these things 
 were done he inquired how much they charged him for their 
 services, and on being informed as to the amount he paid the 
 same. They had performed the business for which the 
 agency had been constituted, and, by operation of law, the 
 agency was terminated. See Story on Agency, § 499, and 
 cases cited ; 2 Kent's Com. *643, and cases cited. This was 
 in July, 1868. The purchase of the land at tax sal.e by 
 Moore & Mclntire was not made until October of that year. 
 At that time they were as free to purchase the same as any 
 other persons. Their agency no longer existed ; they had not 
 undertaken to procure a good title for Scarlett nor to examine 
 the title for him. The land was situated in another county 
 from where the plaintiff resided ; nothing was said to them 
 about the title, and they might well suppose that Scarlett, 
 since he resided near the laud and desired to buy it, had ex- 
 amined or procured some one to examine the records in the 
 county where the lands were situated. 
 
 It is also quite clear that the fact that the deed to Scarlett 
 was sent by Everett to the banking house of Moore & Mc- 
 lntire for the purpose of being delivered upon payment of 
 
IN AGENCY. . 20i) 
 
 the balance of the purchase-money, did not operate to revive 
 the prior agency for the purchase of the land. In this trans- 
 action Moore & Mclntire acted for and as agents of the grantor 
 in the deed. There is no evidence that Scarlett procured the 
 plaintiff, or his firm, to obtain the deed for him. On the con- 
 trary, it was sent by Everett to Moore & Mclntire for the pur- 
 pose of collecting the balance of the purchase-money then 
 due. They performed that service for Everett and received 
 their compensation from him. 
 
 It is equally clear that the plaintiff was not guilty of any 
 fraud in failing to disclose the fact of the tax purchase by 
 Moore & Mclntire. Their relations were not such as required 
 such disclosure to be made, especially when it is affirmatively 
 shown that they had no actual knowledge that they held the 
 certificate of purchase at the time they delivered the deed to 
 Scarlett. 
 
 The decree of the Court below will be reversed, and a decree 
 entered for plaintiff in this Court if he so elects, or the cause 
 will be remanded for a decree to be entered in conformity with 
 this opinion by the District Court. 
 
 Reversed. 
 
 Story, 499 ; 2 Kent Comm. 642 ; Walkier v. Derby, 5 BisB. 184 ; Rothschild 
 V. Burritt, 47 Minn. 28. 
 
 Performance by Another. 
 
 The object of the agency being accomplished by other means, the 
 agency is terminated. 
 
 Ahern V. Baker. 
 
 Supreme Court of Minnesota, 1885. 
 
 34 Minn. 98. 
 
 Vanderburgh, J. The defendaht, on the 9th day of Sep- 
 tember, 1884, specially authorized one Wheeler, as his agent, 
 to sell the real property in controversy, and to execute a con- 
 tract for the sale of the same. He in like manner on the same 
 day empowered one Fairchild to sell the same land, the 
 14 
 
210 ILLUSTRATIVE CASES 
 
 authority of the agent in each instance being limited to the 
 particular transaction named. On the same day, Wheeler 
 effected a sale of the land, which was consummated by a con- 
 veyance. Subsequently, on the 10th day of September, Fair- 
 child, as agent for defendant, and having no notice of the pre- 
 vious sale made by Wheeler, also contracted to sell the same land 
 to this plaintiff, who, upon defendant's refusal to perform on his 
 part, brings this action for damages for breach of the contract. 
 
 This is a case of special agency, and there is nothing in the 
 case going to show that the plaintiff would be estopped from 
 setting up a revocation of the agency prior to the sale by Fair- 
 child. A revocation may be shown by the death of the 
 principal, the destruction of the subject-matter, or the deter- 
 mination of ^ his estate by a sale, as well as by express notice. 
 The plaintiff had a right to employ several agents, and the act 
 of one in making a sale would preclude the others without any 
 -notice, unless the nature of his contract with them required it. 
 In dealing with the agent the plaintiff took the risk of the 
 revocation of his agency : 1 Pars. Cont. 71. 
 
 Order affirmed, and case remanded. 
 
 Benoit v. Conway, 10 Allen, 528 ; Gilbert v. Holmes, 64 111. 548 ; Walker v. 
 Denison, 86 111. 142; Schlater v. Winpenny, 75 Pa. St. 321. 
 
 2 
 
 By Lapse op Time. 
 
 An agency created to cover a definite period or to last until the 
 happening of an event terminates at the expiration of the period or 
 the happening of the event. 
 
 GuNDLACH V. Fischer. 
 
 Supreme Court of Illinois, 1871. 
 
 59 111. 172. 
 
 This was an attion of debt brought by. Philip M. Gundlach 
 and Jacob Esler, against George Fischer, Alexander H. John- 
 son, Thomas S. Pope, George Trible, Philip Meter, Martin 
 
IN AGENCY. 211 
 
 Kscher, and Nicholas Muhlhauser. It appeared the defend- 
 ant, George Fischer, had entered into an agreement in writing, 
 by the terms of which he was to act as agent for the plaintiffs 
 in the sale of certain machines, and the other defendants were 
 his sureties in a bond, given to secure the faithful performance 
 of his duties as such agent. This suit was brought to recover 
 for an alleged failure, on the part of Fischer, to account for 
 and pay. over to the plaintiffs certain moneys received by him 
 from the sale of machines, as required by the terms of the 
 agreement. The defendants, Johnson, Pope, Meter, and Muhl- 
 hauser, were duly served with summons, and to the declaration 
 Johnson and Pope filed a plea of nil debet, to which the plain- 
 tiffs added a similiter. Meter and Muhlhauser were defaulted. 
 Upon a trial by jury a verdict was rendered in favor of the 
 defendants, Johjison and Pope, for costs. Motion for new trial 
 overruled, and jury empaneled to assess damages against Meter 
 and Muhlhauser, defendants in default. Verdict for defend- 
 ants, and final judgment entered against the plaintiffs for costs 
 of suit, from which they prosecute this appeal. 
 
 The following is the article of agreement and bond sued on : 
 
 Article of Agreement, made and entered into, by, and be- 
 tween Gundlach & Esler, -of Belleville, St. Clair County, and 
 State of Illinois, and George Fischer, of Trenton, county of 
 Clinton, State of Illinois, in manner and form following, to 
 wit: 
 
 The said George Fischer agrees to act as agent for said 
 Gundlach & Esler, for the sale of the Buckeye reaper and 
 mower, and horse hay-rakes_, and Grundlach's patent grain 
 drill, manufactured by Gundlach & Esler, Belleville, Illinois. 
 
 The said agency shall extend over and in the vicinity of 
 Trenton, county of Clinton, State of Illinois, in conformity 
 with the terms and stipulations hereinafter expressed ; and the 
 said Gundlach & Esler in consideration of the faithful per- 
 formance by the said G. Fischer of the obligations by him 
 hereinafter assumed, agree to furnish the said G. Fischer such 
 number of machines as the said G. Fischer may be able to sell 
 as their agent, prior to October 1, 1867 ; the said Gundlach 
 
212 ILLUSTRATIVE CASES 
 
 & Esler reserving to themselves the right, in case they shall 
 not be able to fill his orders, to restrict him to such number 
 of machines as they may be able to supply. 
 
 The said G. Fischer further agrees, in acting as such 
 agent : 
 
 First. To sell no other ma'chines or rakes but such as are- 
 furnished by Gundlach & Esler ; and in making sales, to be^ 
 governed by the instructions hereto' annexed, and such as may 
 be given by Gundlach & Esler from time to time, either in 
 writing or print, and made part of this contract ; and in no- 
 case to sell a machine, or any part thereof, to any person or 
 persons not known by him to be perfectly good and respon- 
 sible. 
 
 Second. To receive and take good care of all machines s6nt. 
 to him as such agent ; to have them properly stored ; to pay 
 all freight and charges thereon ; to do any and all business 
 connected with the same, and putting them in successful opera- 
 tion. And should any machines remain unsold at the end of 
 the season, to hold the same subject to the order of Gundlach 
 & Esler, and deliver the same in as good order as when, 
 received, when required, to them or their authorized agent, 
 free from any and all charges whatsoever, except for money 
 advanced on freight. 
 
 Third. To attend to selling said machines and collecting 
 and remitting all moneys to Gundlach & Esler promptly and 
 at the time of each sale. 
 
 Fourth. To attend to collecting of, or to the obtaining of 
 further security on or to the renewal of such notes as are not 
 paid promptly at maturity. For performing the services herein 
 enumerated the said Gundlach & Esler agree to pay the said 
 Fischer ten dollars on each reaper sold, two dollars on each 
 rake, and eight dollars for each drill, all sold and settled- for 
 as above, the same to be payable at the time and in the same 
 proportion as the payments are made on the machines sold ; 
 the foregoing sum to include the compensation for receiving, , 
 storing, delivering, selling, collecting, remitting, and putting 
 the machines in practical operation. 
 
IN AGENCY. 213 
 
 In testimony whereof, the parties hereunto set their hands 
 .and seals this 3d day of May, 1867. 
 
 GUNDLACH & ESLER. [l. S.] 
 
 George Fischer. [l. s.] 
 
 Know all men by these presents, That we, the undersigned^ 
 and George Fischer, are held and firmly bound unto Gundlacli 
 ■& Esler, of Belleville, county of St. Clair, State of Illinois, in 
 the full and just sum of fiifteen hundred dollars ($1,500) in 
 lawful money of the United States,' for which payment, well 
 ^nd truly to be made, we bind ourselves, and each and every 
 of our heirs, executors, and administrators, jointly and seve- 
 rally, by these presents. Sealed with our hands and seals this 
 "third day of May, A. D. eighteen hundred and sixty-seven 
 <1867). 
 
 The conditions of this obligation are such, that if the above 
 ^aid George Fischer, who has taken the agency for the sale of 
 the above-named machines of the said Gundlach & Esler, for 
 ^nd within the said vicinity, and that he will justly and fairly 
 account for, and properly discharge his duties thereof, and will 
 pay over all moneys and notes for such machines that may 
 ■come to his hands as such agent for Gundlach & Esler, then 
 i;his obligation to be void ; else to remain in full force and 
 virtue. 
 
 Signed : George Fischer, [l. s.] 
 A. W. Johnson, [l. s.] 
 T. S. Pope. [l. s.] 
 
 George Trible. [l. s.] 
 Ph. Meter. [l. s.] 
 
 Martin Fischer, [l. s.] 
 N. Mdhlhauser. [l. s.] 
 Signed in the presence of Alfred Guyot. [l. s.] 
 
 Per Curiam. A fair and reasonable construction of the 
 ;agreement makes Fischer the agent of Gundlach <fe Esler, for 
 "the sale of machines, until the 1st of October, 1867. And 
 "the appellees, by their obligation, undertook for the faithful 
 
214 ILLUSTKATIVE CASES 
 
 discharge of all of Fischer's duties as such agent, and that h& 
 should account for and pay all moneys, notes, etc., to Gund- 
 lach & Esler, for property and for machinery received prior 
 to that date. It appears, from the evidence, that he received 
 machinery prior to the 1st day of October, 1867, amounting 
 to $2,023.92. For his faithful account of that surd his sure- 
 ties are liable, but they are not for machines or property 
 received after that date. The agreement only contemplated 
 that he should act as agent up to that time, and, hence, the 
 sureties only bound themselves that he should account for 
 machinery received before that date. 
 
 The evidence, however, fails to show that Fischer has ac- 
 counted for all the money and notes received on the sale of the 
 machinery received before the 1st of October, 1867. Even by 
 Fischer's evidence, it appears that there is some amount still 
 due Gundlach & Esler for machinery received within the 
 period for which the sureties were bound, and for whatever- 
 sum that may be so due they are liable, and the jury should 
 have found that amount by their verdict. Fischer does not. 
 pretend that he had paid the full amount received for the sale 
 of machinery so furnished him, and appellants' witnesses- 
 make the amount over |200, after deducting the note sent 
 him for collection after the 1st of October, and all payments. 
 But allowing him a credit of all he claims, still he would owe- 
 them, for which his sureties would be liable, at least $87 and 
 interest. The evidence, as given in this transcript, shows at 
 least that amount. We are clearly of opinion that the jury 
 misunderstood the evidence and erred in the finding of the- 
 verdict, and the Court below should have granted a new 
 trial. The judgment of the Court below is reversed and the 
 cause remanded. 
 
 Judgment reversed. 
 
 Oregon Co. v. American Co., 35 Fed. Eep. 22 ; Danby v. Coutts, 29 Ch^ 
 Div. 500. 
 
IN AGENCY. 215 
 
 B 
 
 BY REVOCATION OF AUTHORITY. 
 
 It is within the power of the principal to withdraw his authority 
 at any time and thereby terminate the relation. 
 
 Walker v. Denison. 
 
 Supreme Court of Illinois, 1877. 
 
 86 111. 142. 
 
 Mr. Justice Sheldon. This was a bill in chancery to set 
 aside a deed made by the appellees to the appellant, convey- 
 ing to her certain premises, being a house and two acres of 
 land situate in Belvidere in this State. The deed was made 
 under the following circumstances : 
 
 On November 6, 1867, Warren H. Pease, being the patentee 
 with Hijram Knapp, under letters-patent from the United 
 States, for an improved well-tube, gave to J. D. Walker, now 
 deceased, and A. B. Peterson a power of attorney constituting 
 them his attorneys to sell and dispose of all or any part of the 
 States and territories granted to Pease and Knapp in the let- 
 ters-patent. The power of attorney contained the two follow- 
 ing clauses : " And said attorneys are to account to me for one- 
 half of the net proceeds derived from the above sales, after 
 deducting all necessary expenses therefrom." "And this 
 power of attorney is not revocable and cannot be revoked 
 within two years from this date." The power of attorney was 
 recorded in the Patent Office of the United States, November 
 13, 1867. 
 
 Under this power of attorney, Walker, on January 21, 1868, 
 sold and conveyed to Daniel A. Denison, one of the appellees, 
 the right to use and put down Pease's patent well-tubes for the 
 State of Ohio, except Williams County, and gave $50 in money, 
 and a sample filter valued at $5, for the premises described in 
 the deed, and Denison and wife on that day executed to the 
 appellant, Eunice E. Walker, the wife of J. D. Walker, the at- 
 torney, the deed in question. After the making of the power 
 
216 ILLUSTRATIVE CASES 
 
 of attorney, and before the consummation of the trade, namely, 
 on November 21, 1867, Pease, the patentee, sold and assigned 
 all his interest in the patent in and for the State of Ohio, ex- 
 cept Williams County, to Delos A. Danforth and Charles W. 
 Seeley, who were aware, at the time, of the existence of the 
 power of attorney to Walker and Peterson. Such assignment 
 was recorded in the Patent Office, November 27, 1867. At the 
 time of the purchase from Pease, Danforth and Seeley pur- 
 chased the Knapp interest in the patent from the widow and 
 executrix of Knapp. Walker, the attorney, was notified by 
 Pease of his sale and transfer of the patent to Danforth and 
 Seeley, prior to January 21, 1868, the time of the execution of 
 the deed. 
 
 The Court below decreed the relief prayed, and the defend- 
 ant, Eunice E. Walker, appeals. 
 
 It is insisted that the sale by Walker, the attorney, to Den- 
 ison, on January 21, 1868, was valid, notwithstanding the fact 
 that Pease, the principal, had himself previously made sale 
 of all his interest in the patent-right to Danforth and Seeley, 
 because the power of attorney was irrevocable for two years, as 
 expressed therein. 
 
 It is not disputed that the general rule is, that the principal 
 may revoke the authority of his agent at his mere pleasure, 
 although in its terms an authority may be expressly declared 
 to be irrevocable ; but it is contended that the present case 
 comes within one of the recognized exceptions — ^tliat where an 
 authority or power is coupled with an interest, or where it is 
 given for a valuable consideration, or where it is part of a 
 security, there it is irrevocable, and whether it is expressed to 
 be so upon the face of the instrument conferring the authority, 
 or not: Story on Ag., § 477. It is argued that Walker had an 
 interest in the execution of the power ; that it was given for a 
 valuable consideration, to wit, that Walker was to give his time 
 and labor and was to use his own money in introducing the 
 patent, and was to be reimbursed only out of the sales he 
 should make during the two years, and that as security for the 
 reimbursement this stipulation against revocation for the 
 
IN AGENCY. 217 
 
 ■period of two years was inserted. All tkat there is shown in 
 this respect is merely the above quoted provisions of the power 
 -of attorney. There is no undertaking on the part of Walker 
 in the instrument, and aside from those clauses it is in the or- 
 dinary form of a simple power of attorney given by a prin- 
 -cipal. There was no proof that Walker was to incur any ex- 
 penditure of any kind, or that he did incur any, beyond the 
 ■one item of testimony that, during the latter part of 1867 and 
 -early part of 1868, he was engaged under the power of attorney 
 in selling territorial rights for the patent. 
 
 The mention of " expenses," in the power of attorney, was 
 not in the way of obligation on Walker to incur any, but was 
 in connection with his compensation as attorney, and in meas- 
 uring that he was to have one-half of the net proceeds of sales 
 After deducting necessary expenses therefrom. 
 
 As to the exception of a power coupled with an interest, it 
 is not enough, as appellant supposed, that the agent has an 
 interest in the execution of the power. The meaning of that 
 -expression underwent discussion and was authoritatively de- 
 termined in the case of Hunt v. Rousmaniere's Administrator, 
 S Wheat. 174, where it was held that " a power coupled with 
 an interest " is where the power or authority is coupled with 
 an interest in the thing itself, actually vested in the agent ; 
 and that it was not an interest in that which is produced by 
 the exercise of the power. The latter, and not the former, 
 was all the interest of Walker in the matter, and the case can- 
 not be brought within this exception. 
 
 Nor do we perceive that it any more falls within the other 
 •exceptions — of the instrument having been given for a val- 
 uable consideration, or as a part of a security. The power of 
 :attorney itself was not given fop any such independent pur- 
 pose. All that can be said in that regard is that the particular 
 clause in the instrument against revocation might be beneficial 
 to the agent appointed, in the way of profit derivable from the 
 exercise of the agency, and of securing compensation for any 
 services and expenditure therein. We do not consider that 
 any such consideration or security respecting the mere benefit 
 
218 ILLUSTRATIVE CASES 
 
 to the agent from the exercising of the power should, at least 
 under the circumstances here, debar from revoking the power. 
 For any legal injury Walker may have sustained from the re- 
 vocation he may have his remedy upon the covenant not to 
 revoke. 
 
 The owner of the patent-right, Pease, having sold all his 
 interest in it before the sale by the agent. Walker, to Denison, 
 that was a revocation of the power of attorney by operation 
 of law, the power of the principal having ceased over the sub- 
 ject-matter. 
 
 The sale made by Walker to Denison was without right and 
 authority, and the conveyance of the house and lot from Den- 
 ison, made thereon, was without consideration. Walker knew 
 at the time tliat his principal had previously sold to Danforth 
 and Seeley all that he pretended to sell to Denison, and the 
 sale was not made in good faith. The Court below rightly 
 granted relief and decreed a reconveyance. 
 
 In making the objection of the non-return of the $50 re- 
 ceived from Walker, appellant's counsel must have overlooked 
 the recital in the decree that it was stipulated by the solicitors 
 of the parties, in open court, that the net use of the premises 
 was more than sufficient compensation to repay the cash pay- 
 ment of $50. This obviates the objection. 
 
 The point is made, too, of laches, in the delay in bringing 
 suit— the bill having been filed March 29, 1870. This ob- 
 jection does not appear to have been in any way raised in the 
 Court below. In School Trustees v. Wright, 12 111. 432, which 
 has never been overruled, this Court decided that this objection 
 must be raised in the Court below, otherwise it must be held 
 to have been waived. 
 
 The decree will be affirmed. 
 
 Decree affirmed. 
 
 Eowe t). Hand, 111 Ind. 206; Chambers v. Seay, 73 Ala. 373; Hoover ti. 
 Perkins, 41 Minn. 143 ; Hunt v. Rousmanier, 8 Wheat. 201 ; Simonton v. Bank, 
 24 Minn. 216 ; Blackstone v. Buttermore, 53 Pa. St. 266. 
 
in agency. 219 
 
 Exception — Agency Coupled with Interest. 
 
 An agency coupled 'V7ith an interest in the subject-matter is not 
 revocable at the ivill of the principal. 
 
 Houghtaling v. Marvin. 
 
 Supreme Court of New York, 1849. 
 
 7 Barb. 412. 
 
 This action was brought by the plaintiff as administrator de 
 bonis non of the estate of Isaac Wilcox, deceased, to recover a 
 sum of money alleged to have been received by the defendant 
 to and for the use of the estate. The intestate was a stock- 
 holder in the Cochecton and Great Bend Turnpike Company, 
 and in the spring of 1842, several years after his decease, there 
 was standing to his credit, upon the books of the company, $76- 
 for dividends upon his stock for the two years preceding. On 
 the 6th of April, 1842, Zera E. Hayden, the administrator, drew 
 for the amount upon the treasurer of the company in favor of 
 the defendant, payable to him or his order, and on the 22d of 
 May the defendant acknowledged the receipt of a certificate of 
 deposit in the Broome County Bank, for the amount. On the 
 25th of the same month he received $75 for the certificate, at 
 the Syracuse Bank. The administrator, Hayden, died on the 
 18th of April, 1842. It was proved that in March or April, 
 1842, the administrator talked of going to Cochecton to get the 
 money, and wanted it to pay one Tyler, and that the defendant, 
 who was his son-in-law, told him that he could get the money 
 more cheaply by writing, and proposed to write for him. The 
 defendant alfeo proved by Tyler that in the spring of 1842, Hay- 
 den was indebted to him upon a note past due, and came to him 
 with the defendant, and desired him to wait for his pay until he 
 got the turnpike stock money from Pennsylvania, and said -if 
 he could not wait he would get the defendant to send him some 
 money. And that the defendant told him if he could not wait, 
 to send to him, at Baldwinsville, and he would send him up 
 some money, and that he sent down and got $30 or $40, and 
 in June the defendant paid the balance. The whole amount 
 
220 ILLUSTRATIVE CASES 
 
 was about $70. The cause was tried before Justice 0. Gray, 
 on the Onondaga circuit. The jury, under the charge of the 
 Court, rendered a verdict for the defendant, and the pladnttaff 
 moved for a new trial, upon a case. 
 
 Allen, J. It is very clear, from the evidence, that the bill 
 •or order of the administrator Hayden upon the treasurer 
 -of the turnpike company, for the dividends upon the stock of 
 the intestate, was not intended as an absolute transfer of the 
 fund to the defendant. It was an authority to him to receive 
 the money; and unless it was a power coupled with an 
 interest in the defendant or some other person, the authority 
 was revoked by the death of the principal (Hayden) before the 
 receipt of the money, and the defendant, upon its receipt, be- 
 ■came a trustee for the representatives of the estate of Wilcox. 
 The interest which will authorize the execution of the power, 
 after the death of the principal, must be an interest in the thing 
 itself which is the subject of the power, and not in the proceeds, 
 or avails of such thing : Hunt v. Rousmanier's Executors, 
 8 Wheat. 174. If there is merely a power to a creditor to 
 receive a debt expressly for the purpose of liquidating the 
 •claim of the creditor, unaccompanied, however, by an actual 
 assignment of the debt or by any sechrity to which the power 
 might have been ancillary, it is revoked by the death of the 
 principal : Lepard v. Vernon, 2 V. & B. 51 ; Paley on Agency, 
 "by Dunlap, 186 ; Story on Bailm., § 209 ; Story on Agency, 
 M 488, 489. 
 
 In this case the legal title to the fund in the hands of the 
 -treasurer of the turnpike company was by the order of Hayden 
 Tested in the defendant to the amount advanced by him upon 
 the faith of such order. The order itself, without consideration, 
 was a naked power to receive the money for the use of the 
 ■drawer, and was revocable at his pleasure, or by his death. 
 But if the defendant paid or advanced money to Hayden and 
 took the order as a security for the sum so paid or advanced, 
 then, to that amount the order operated to transfer the fund, 
 and became a power coupled with an interest, which survived 
 
IN AGENCY. 221 
 
 the drawer : Knapp v. Alvord, 10 Paige, 205 ; Tate v. Hilber, 
 2 Ves. 111. It can make no difference that Hayden was act- 
 ing as administrator. Having funds belonging to the estate, 
 at a place distant from his residence, he had the right to trans- 
 fer them in this manner, with a view to realize them at the 
 point where they were wanted for the purpose of adminis- 
 tration. The mere fact that Hayden drew the bill as admin- 
 istrator, in favor of a third person who was willing to discount 
 it, or advance the money upon it, would not, of itself, be evi- 
 dence of a devastavit, or charge the drawer of the bill with the 
 receipt of moneys to the use of the estate. Whether the 
 defendant did advance money to Hayden upon the faith of 
 the security furnished- by the bill, and take and rely upon the 
 bill as such security, and if so, to what amount, does not very 
 distinctly appear ; although, had that question been put to the 
 jury and they had found in favor of the defendant, to the 
 amount paid by him to Tyler before the death of Hayden, 
 perhaps the verdict could not have been set aside as against 
 evidence. But the amount paid to Tyler, after the death of 
 Hayden, was paid by the defendant without authority, and in 
 his own wrong. He was the son-in-law of Hayden, living in 
 the same neighborhood, and knew of his death. He says that 
 he assisted in the settlement of his estate. He therefore cannot 
 claim to have paid it in ignorance of his death, and to be pro- 
 tected within the principle of 2 Ves. Ill ; and Smart v. Hlery, 
 lOMees. & Wels. 1. 
 
 It cannot be claimed that for that amount the order was a 
 power to the defendant coupled with an interest in himself or in 
 Tyler, the creditor of Hayden. Not for his own benefit, for he 
 had not paid the money to Tyler, nor had he become bound, as 
 surety for Hayden, or otherwise, to pay it to him. Not for the 
 benefit of Tyler, for the reason that there was no attempt to 
 transfer the fund to him, or give him any pledge or lien upon it. 
 Hayden, up to the time of his death, had complete control of 
 this part of the fund, and if he had at any time directed the de- 
 fendant to pay it to Tyler when received, he could, while living, 
 have revoked the order ; and it was revoked by his death. The 
 
222 ILLUSTRATIVE CASES 
 
 Justice charged the jury that if there was an arrangement be- 
 tween the defendant and Hayden by which he was to draw the 
 money and pay it over to Tyler or retain it for advances made 
 or to be made by him, for Hayden, and if he did draw and pay 
 it over, in pursuance of such arrangement, then he was not lia- 
 ble. That if the jury found that there was such an arrange- 
 ment the defendant might be regarded as the mere agent of 
 Hayden in drawing and paying over the money, and that even 
 if Hayden had not the right so to direct its disposition the de- 
 fendant was not liable. This part of the charge was too broad, 
 and should have been qualified. For if, as supposed, the de- 
 fendant was the mere agent ,of Hayden to pay the money to 
 Tyler, the agency ceased at the death of Hayden, and a pay- 
 ment after that time was without authority. And for the 
 amount so paid the plaintiff was entitled to a verdict. 
 
 Without examining the other questions made upon the 
 argument, a new trial must be granted ; costs to abide the 
 event. \ 
 
 Standard Oil Co. v. Gilbert, 84 Ga. 714 ; Marziou v. Pioche, 8 Cal. 522 ; 
 Missouri v. Walker, 125 U. S. 339; Hunt v. Eousmanier, 8Wlieat. 174; Hart- 
 ley & Minor's Appeal, 53 Pa. St. 212; Chambers v. Seay, 73 Ala. 372; Story, 
 
 Modification — Agency Presumed to Continue. 
 
 One vrho has dealt -with an agent has a tight to presume in the 
 absence of notice that the agency continues. 
 
 McNeilly v. Continental Life Ins. Co. 
 
 New York Court of Appeals, 1876. 
 
 66 N. Y. 23. 
 
 Appeal from order of the General Term of the Supreme 
 
 Court in the fourth judicial department reversing an order 
 
 non-suiting plaintiff on trial, and granting a new trial. 
 
 This action was brought upon a policy of life insurance 
 issued by defendant upon the life of plaintiff's intestate, Isaac 
 McNeilly. 
 
IN AGENCY. 223 
 
 The policy was issued June 22, 1870. It was obtained 
 through one E. W. Weller, who, at the time, was general 
 agent of defendant. To him the insured paid the premiums 
 as they fell due up to December 22, 1873, receiving receipts 
 therefor. By the terms of the policy the "premiums became 
 due and payable semi-annually on the 22d of June and De- 
 cember, or within thirty days thereafter. By the terms of 
 Weller's agreement with defendant his agency expired May 
 ■26, 1874, and at that time he surrendered up the receipts then 
 held by him, he having authority, however, and agreeing to 
 Teceive and forward any premiums paid to him. Prior to 
 June 22, 1874, defendant sent to the insured a notice by mail 
 .advising him that the premium fell due on the 22d of June. 
 Across the face of the notice was stamped the words " Bemit 
 direct to the home office." It did not appear when the in- 
 sured received this notice. On the 16th of July, 1874, the in- 
 sured mailed to Weller a postal order payable to him for the 
 amount of the premium. He had been accustomed to pay 
 ihe premiums in the same manner, and they had been re- 
 ceived without objection. At the time this order was received 
 Weller was away from home. It was received by his daugh- 
 ter in accordance with instructions from her father, and she 
 wrote the insured, acknowledging receipt and stating that a 
 receipt would be sent upon return of her father. He returned 
 home July 27 or 28, drew the money on the order, and pro- 
 cured a new order for amount, which he forwarded to defend- 
 ant. Defendant wrote to the insured informing him of the 
 receipt of the money, and stating as the premium was past due 
 it would not accept it unless he would sign and return a cer- 
 tificate of health inclosed, and that meanwhile it would hold 
 the draft or order subject to his order. The insured informed 
 defendant that he could not sign the certificate, as he had been 
 for some months in failing health. In September defendant 
 inclosed to the insured the order received by it from Weller, 
 who returned it. Upon the back of the policy was printed a 
 notice to policy-holders, to the effect that no payment to an 
 .agent was valid without the production and delivery by him 
 
224 ILLUSTRATIVE CASES 
 
 of a receipt signed by the president, secretary, or actuary of 
 the compiany. The insured died October 5, 1874. 
 
 At the close of the evidence on the trial defendant's counsel 
 moved for a non-suit, which was granted. Plaintiff's coun- 
 sel duly excepted. Exceptions were ordered to be heard at 
 first instance at General Term. Further facts appear in the;, 
 opinion. 
 
 Andrews, J. "When the policy was issued "Weller was the' 
 general agent of the defendant, and was authorized to tak& 
 applications for insurance, appoint local agents, and receive, 
 original, or renewal premiums on policies issued by the com- 
 pany. In 1870 he took the application for insurance upon 
 the life of the plaintiff's intestate, and the policy was issued 
 June 22, 1870, countersigned by Weller as general agent. By- 
 the terms of the policy the premium was payable on the 22d 
 day of June in each year, or within thirty days thereafter, and 
 prior to 1874, premiums had been paid semi-annually to> 
 Weller, who received and remitted them to the defendant, and 
 the company forwarded to Weller receipts therefor, which he 
 delivered to the insured. On the 16th day of July, 1874, the 
 insured mailed to Weller a postal money order for the semi^ 
 annual premium which fell due June 22, 1874. Weller was 
 then absent from home, but his daughter, pursuant to his in- 
 structions, received the order, and informed the insured by 
 letter that her father would send a receipt on his return. He 
 returned home on the 27th or 28th of July, and drew the 
 money on the order sent by the insured, and procured an 
 order on the New York office for the amount of the premium, 
 and sent it to the defendant. The defendant, on receiving the 
 order, wrote the insured informing him of its receipt, and in- 
 closing in the letter a certificate of health, and stating, in 
 substance, that as the premium was past due the company 
 would not accept it, except on condition that he would sign 
 and return the certificate, and that, meanwhile, it would hold 
 the draft subject to his order. The insured had, for several 
 months, been in failing health,- and he informed the defend- 
 
IN AGENCY. 225 
 
 ant that he could not for that reason make the statement 
 contained in the certificate. Afterward, in September, the de- 
 fendant returned tlie order to the insured, who again sent it to 
 the company, and in October, of the same year, the plaintiff's 
 intestate died. 
 
 The defense interposed by the company is that the policy 
 was forfeited by the non-payment of the June premium. It 
 was sent to Weller within the thirty days extension of time 
 given by the policy. The defendant, to avoid the effect of 
 this payment, relies upon the fact that the general agency of 
 Weller terminated in April, and that notice was given to the 
 insured, before the payment was made, to send the premium 
 directly to the company. 
 
 A person who has dealt with an agent in a manner within 
 his authority, has a right to assume, if not otherwise informed, 
 that the authority continues, and when the dealiug continues 
 after the authority is revoked, the principal is nevertheless 
 bound, unless notice of the revocation is brought home to the 
 other party : Story on Ag., § 470. It was, therefore, essen- 
 tial for the defendant, in order to defeat the action, to show 
 that the plaintiff 's intestate, when he made the payment to 
 Weller, in July, 1874, had notice that he was not authorized 
 to receive it. To establish this the defendant proved that, 
 early in June, it mailed to the insured a notice that the pre- 
 mium on his policy would fall due on the 22d of that month. 
 This notice was partly printed and partly written, and across 
 its face was stamped the words, " remit direct to the home 
 office." When this notice was received by the insured does 
 not appear. It was seen in his possession in August. This is 
 all the evidence there is to show that the insured, when he 
 sent the money order to Weller in July, knew that his au- 
 thority was terminated. This evidence, at most, raised a 
 question of fact for the determination of the jury. The notice 
 made no reference to Weller, nor did it indicate that his 
 agency had terminated. It is evident that he did not so un- 
 derstand it, for he had abundant time to have remitted the 
 premium to the defendant's office, if he had supposed that 
 15 
 
226 ILLUSTRATIVE CASES 
 
 Weller had no right to receive it. Nor did the direction on 
 the notice to send to the home office ojjerate as notice of a 
 special limitation of the previous authority vested in Weller. 
 The direction was printed on a blank prepared for general 
 use. The general direction to send to the home office would 
 not fairly imply that payment to a general agent was pro- 
 hibited. If it would convey to any one any intimation of this 
 kind, it would not be likely to do so to persons unskilled in 
 business, with whom, to a great extent, the business of life in- 
 surance companies is conducted. The language is, at least, 
 vague and equivocal to convey the information claimed, and 
 it is not too much to require that the defendant shall make a 
 plain case when it claims a forfeiture. The objection that the 
 money was remitted by post-office draft, is not tenable. The 
 insured had paid his premiums in this way before, and Weller 
 had accepted them as good payment, and the company made 
 no objection on this ground. The authority given by Weller 
 to his daughter to receive premiums falling due in his absence, 
 was within the general scope of his agency, and payment to 
 her was payment to him. The notice to policy-holders prihted 
 on the back of the policy, that payment to agents would not 
 be deemed valid, unless a receipt, signed by the president, 
 secretary, or actuary of the company was taken at the time, 
 cannot be construed as a limitation of the power of a general 
 agent. It was not a part of the contract of insurance, and 
 payment to a general agent without the production of a re 
 ceipt, is valid : Boehen v. Williamsburgh City Ins. Co., 35 N. 
 Y. 131 ; Sheldon v. The Atlantic Ins. Co., 26 lb. 4G0 ; Shea^ 
 man v. The Niagara Ins. Co., 46 lb. 526. There is anothet 
 answer to this objection. The agency of Weller, under his 
 contract with the company, terminated on the 26th day of 
 May, 1874, and on that day all receipts in his hands were 
 delivered by him to the company. But his agency was con- 
 tinual for a special purpose, viz., to receive such premiums as 
 should be paid to him thereafter, and forward them to the de- 
 fendant, and under this authority he continued to receive 
 premiums falling due, until October, and sent them to the 
 
IN AGENCY. 227 
 
 company pursuant to the arrangement. No receipts in ad- 
 vance were furnished to deliver to the persons paying the 
 premium, nor was it contemplated that this should be done 
 when the special authority was given to Weller. The claim, 
 that Weller's special authority, after the termination of his 
 general agency, was confined to receiving premiums in cases 
 where receipts were furnished him in advance, is not, we 
 think, supported by the proof. Upon the ground, therefore, 
 of a special waiver by the company of the instruction con- 
 tained in the notice to policy-holders, the payment made by 
 the plaintiff's intestate was valid. 
 
 It is not claimed that the non-suit can be supported upon 
 any grounds other than those we have considered, and for the 
 reasons stated we are of opinion that they do not justify the 
 ■direction given at the circuit. 
 
 The order appealed from should be affirmed, and judgment 
 absolute ordered for the plaintiff on the stipulation. 
 
 Order afflrined, and judgHient accordingly. 
 
 Baltimore v. Eschbach, 18 Md. 276; Insurance Co. v. McCain, 96 U. S. 84. 
 
 c 
 
 BY AGENT'S EESIGNATION OE REFUSAL TO ACT. 
 
 When the agency is not for a SpeciBc period of time the agent may 
 renounce it at will. 
 
 Barrows v. Cushway. 
 Supreme Court of Michigan, 1877. 
 ' 37 Micli. 481. 
 
 Action on a bond brought by plaintiffs in error as copart- 
 ners, against Cushway as principal and Gardner as surety for 
 the faithful performance of the following contract : 
 
 " Office of Thomas Barrows & Co., Chicago, 111., Oct. 11, 
 1873. In consideration of Thomas Barrows & Co. making 
 Consignment of Victor sewing-machines to me, in such quan- 
 
228 ILLUSTRATIVE CASES 
 
 tities and at such times as they may elect, to be sold on their 
 account at the regular retail prices. The machines to be prop- 
 erly packed and delivered in good order at any railroad depot 
 or express office in the city of Chicago, as directed (after which 
 all charges and expenses of every kind, including, taxes and 
 insurance, to be defrayed by me), and their paying me a com- 
 mission for selling the said machines as follows, to wit : On 
 sales made for cash, a commission of 45 per cent. On sales 
 made for notes at six mouths, 40 per cent. And on the further 
 consideration of their agreement to give me the right to sell 
 Victor sewing-machines in the following territory, to wit : Lud- 
 ington and vicinity, Mason County, Michigan, I agreq to the 
 following, to wit : To devote my attention exclusively to the 
 sale of the said machine. Also to jrender the consignors in the 
 prescribed form a statement of stock on hand as often as may 
 be required. Also to keep the machines (unsold) in good order 
 and condition, and return them to the consignors or order upon 
 demand free of charge. I further agree to render a faithful 
 report of all machines sold during the month, giving style and 
 plate No. of each, and to give my note for the price of said 
 machines sold, less 40 per cent., due six (6) months after date 
 thereof, without interest, payable at some bank in Ludington, 
 Mason County, Mich." 
 
 - The contract was not signed at all, but the bond was signed 
 by Cushway and Gardner. The remaining facts are shown in 
 the opinion. Under the charge of the Court below, the jury 
 found for the defendants, and plaintiffs brought error. 
 
 Marston, J. "We do not consider it at all necessary to pass 
 upon all the questions raised in this case. Admitting, for the 
 purpose of this case, the contract between plaintiffs and De- 
 fendant Cushway to have been executed in such manner as to 
 bind the latter, and that parol evidence would have been in- 
 admissible to show that the agency was to be exclusive within 
 the territory mentioned, points upon which we express no opin- 
 ion, there was nothing in the contract which would bind Cush- 
 way to act as agent for any definite length of time, or which 
 
IN AGENCY. 229 
 
 -would transfer or pass to him title to the sewing-machines 
 shipped to him thereunder. 
 
 It appears, and the record states was undisputed, that the 
 •defendant requested one of plaintiffs' agents in the spring of 
 1875 to remove and take away the undisposed of machines 
 then in his possession, and that he wrote the plaintiffs the 1st 
 of May to like effect, but received no reply thereto. This he 
 -claims to have done upon the ground that they had violated 
 their contract by appointing another agent to sell machines 
 within the territory previously granted to the defendant. The 
 reasons, however, are not of so much consequence. On the 
 14th of June defendant's store was destroyed by fire, and the 
 machines then unsold, together with certain property of the 
 ■defendant, were destroyed, and on the trial it was admitted by 
 counsel for the respective parties " that the machines and fix- 
 tures thereto belonging, for which compensation is sought for 
 in this action, ■were destroyed by the fire of June 14, 1875, and 
 "that such fire occurred without fault or negligence on the 
 part of defendant Cushway." The Court charged the jury 
 that " if they found Cushway gave plaintiffs notice a reasonable 
 time before the fire to take their machines off his hands, he 
 would, after the expiration of such reasonable time for re- 
 moval, be answerable only for gross negligence, and that plain- 
 tiffs could not recover for machines destroyed by fire without 
 fault or negligence on the part of Cushway after the lapse of 
 :such reasonable time." 
 
 Under the declaration and claim of the plaintiffs the charge 
 here given was correct, and was, under the admitted facts, de- 
 cisive of the case, and the other rulings of the Court, whether 
 -correct or not, could have had no material bearing. 
 
 The judgment must be affirmed with costs. 
 
 Conrey w. Brandegee, 2 La. An. 132; Coffin u. Landis, 46 Pa. St. 426; United 
 states V. Jarvis, 2"Ware, 278; De Briar i;.Minturn, 1 Cal.450; Franklin Co. v. 
 Harris, 24 Mich. 115. 
 
230 ILLUSTRATIVE CASES 
 
 D 
 BY OPERATION OF LAW. 
 
 1 
 Death op Pkincipal or Agent. 
 
 Death of either principal or agent terminates tjie agency. 
 
 Dark v. D'aer. 
 
 Supreme Court of Iowa, 1882. 
 
 59 Iowa, 81. 
 
 Beck, J. I. The District Court made no special findings, 
 but, in our opinion, the evidence establishes the following 
 facts : 
 
 1. Plaintiff is the only heir of Andrew Darr, a brother of 
 defendant, who died in 1859 in Missouri. 
 
 2. In 1858 or 1859 defendant received the notes in contro- 
 versy from plaintiff 's father who was, at the time, about to re- 
 move to Missouri,' with authority to collect them. The notes 
 did not become due until after Andrew Darr's death. At the 
 maturity of the notes, and for some time after, the makers of 
 the notes were solvent. 
 
 3. Administration of Andrew's estate was allowed in Ne- 
 braska, and the notes were reported as assets of the estate 
 there, and the administrator collected a part of one of these- 
 notes. 
 
 4. Plaintiff's grandfather was appointed his guardian in 
 Missouri. 
 
 5. Defendant collected no part of the notes. In 1879 he 
 delivered them to plaintiff, who then had reached his ma- 
 jority. 
 
 6. The makers of the notes are and have been for many 
 years insolvent. 
 
 7. No demand was made upon defendant by the adminis- 
 trator of the estate of Andrew for the notes. In 1860 the 
 grandfather of the plaintiff had some correspondence with de- 
 
IN AGENCY. 231 
 
 fendant, who suggested the appointment of a guardian in this 
 State. It does not appear whether the grandfather at this time 
 had been appointed guardian in Missouri. 
 
 II. These facts support the judgment of the District Court. 
 Defendant's agency was terminated by the death of his 
 brother, and afterward he had no authority to enforce the 
 collection of the notes. They were assets of his brother's 
 estate and should have gone into the hands of the adminis- 
 trator. Defendant is not liable for negligence in not causing 
 the appointment of an administrator in this State. 
 
 There is no ground for holding defendant liable as an ex- 
 ecutor de son tort. He in no manner intermeddled in the affairs 
 of the estate, and did not interfere to prevent the adminis- 
 trator recovering the possession of the notes, nor to prevent 
 administration upon the estate in Iowa. 
 
 We conclude, the judgment of the District Court ought 
 to be affirmed. 
 
 Yerrington v. Greene, 7 R. I. 589 ; Griggs v. Swift, 82 Ga. 392 ; Hunt v. 
 Eousmanier, 8 Wheat. 174 ; Bishop Con. 1052 ; Mechem, 240, 249 ; Saltmarsh 
 V. Smith, 32 Ala. 404 ; Gage v. Allison, 1 Brev. (S. 0.) 495 ; Knapp v. Alvord, 
 10 Paige Ch. 205 ; Davis v. Windsor Bank, 46 Vt. 727. 
 
 Exception. — ^Death of mortgagor does not terminate mortgagee's power of 
 sale : Conners v. Holland, 113 Mass. 50 ; Knapp v. Alvord, 10 Paige Ch. 205. 
 
 2 
 
 Insanity of Principal or Agent. 
 
 The insanity of either principal or agent terminates the agency. 
 
 Davis v. Lane. 
 
 Supreme Court of New Hampshire, 1839. 
 
 10 N. H. 156. 
 
 Assumpsit upon a promissory note. 
 
 It appeared in evidence that Foss, the plaintiff's intestate, 
 for some time previous to his death, which happened in Octo- 
 ber, 1833, held a note against the defendant, for $50 ; and on 
 
232 ILLUSTRATIVE CASES 
 
 the day of his decease, and when he was entirely senseless, 
 and no hopes were entertained of his recovery, one Jeremiah 
 Prescott, to whom Foss was indebted in the sum of about $46, 
 came, in company with the plaintiff, to the house of Foss, 
 and, after some conversation, it was suggested to the wife of 
 Foss that she had better give up to Prescott the note her hus- 
 band had against the defendant, and pay the debt due him, 
 which, after some hesitation, she concluded to do ; upon which 
 the amount due Prescott was deducted from the amount of 
 the note against the defendant, and a note for f 4 or |5 was 
 given by Prescott, payable to Foss as a balance. The defend- 
 ant afterward paid Prescott the amount of his note. This 
 suit was brought to recover the amount of the note, on the 
 ground that the wife of Foss had no authority to deliver up 
 the note to Prescott and have it applied in the manner before 
 mentioned. 
 
 There was evidence, on the part of the defendant, tending 
 to show that for several years previous to this transaction 
 Foss's wife had been his general agent for transacting all his 
 business, and that she was authorized to settle this concern in 
 the manner she did ; but the plaintiff insisted that if she had ' 
 been agent, the situation of Foss, at the time of the transac- 
 tion, which was well known to her and the others concerned, 
 operated in law as a revocation of her agency. 
 
 The Court charged the jury that if they were satisfied that 
 the wife had been the general agent of her husband for several 
 years previous, the situation in which lie was placed when said 
 business was transacted, although well known to her and Pres- 
 cott, did not operate in law as a revocation of her agency. The 
 jury returned a verdict for the defendant, and the plaintiff 
 moved for a new trial. 
 
 Parker, C. J. There is no pretense that a wife, as such, 
 has any authority to dispose of the husband's goods, or adjust 
 his affairs, by reason of his incapacity to transact business. 
 
 But it is contended, in this case, that the wife having had a 
 general power to transact business for her husband previous to 
 
IN AGENCY. 233 
 
 his illness, nothing but an express revocation of that power, 
 or some occurrence which divests and transmits the property, 
 as death or bankruptcy, will terminate her authority to act as 
 the agent of her husband, and that she therefore might well 
 dispose of the note in question, notwithstanding her husband 
 was utterly insensible and incapable of any volition whatever ; 
 and this well known to her, and to Prescott, to whom she 
 passed it, and notwithstanding he continued in that state until 
 his decease. 
 
 The authorities show that the death of the constituent ter- 
 minates the authority, unless the power is coupled with an 
 interest so that it may be executed in the name of the agent : 
 Harper v. Little, 2 Green R. 18 ; Hunt v. Rousmaniere's Adr., 
 2 Mason's R. 244; s. c, 8 Wheat. R. 174; Waters v. King, 
 4 Camp. 274 ; 2 Livermore on Agency, 302. So bankruptcy, 
 on his part, operates as a revocation : Parker v. Smith, 16 East 
 R. 386. So marriage of a single woman terminates a power 
 to confess a judgment in her behalf: Anon., 1 Salk. 399 ; 2 
 Livermore on Agency, 307. 
 
 In all these cases an end is put to the power of the principal 
 to act, and, moreover, the operation of law transfers the estate, 
 upon which the power might operate to the custody and con- 
 trol of others. In this latter respect these cases are unlike the 
 one before us, and no authority has been cited or found which 
 will directly settle the present case. 
 
 We are of opinion, however, that the authority of the agent, 
 where the agency is revocable, must cease or be suspended by 
 an act of Providence depriving the constituent of all mind 
 and ability to act for himself, and that this doctrine can be 
 sustained by very satisfactory principles. 
 
 An authority to do an act for and in the name of another 
 presupposes a power in the individual to do the act himself, 
 if present. The act to be done is not the act of the agent, 
 but the act of the principal, and the agent can do no act in 
 the name of the principal which the principal might not him- 
 self do, if he were personally present. The principal is present 
 by his representative, and the making or execution of the 
 
234 ILLUSTRATIVE CASES 
 
 contract, or acknowledgment of a deed, is his act or acknowl- 
 edgment. 
 
 But it would be preposterous, where the power is in its na- 
 ture revocable, to hold that the principal was in contempla- 
 tion of law, present, making a .contract, or acknowledging a 
 deed, when he was in fact lying insensible upon his death 
 bed, and this fact well known to those who undertook to- 
 act with and for him. The act done by the agent, under a 
 revocable power implies the existence of volition on the 
 part of the principal. He makes the contract — he does the 
 act. It is done through the more active instrumentality of 
 another, but the latter represents his person and uses his 
 name. 
 
 Farther, upon the constitution of an agent or attorney tQ 
 act for another, where the authority is not coupled with an 
 interest and not irrevocable, there exists at all times a right 
 of supervision in the principal and power to terminate the 
 authority of the agent at the pleasure of the principal. ' The 
 law secures to the principal the right of judging how long he 
 will be represented by the agent and suffer him to act in his 
 name. So long as, having the power, he does not exercise the 
 will to revoke, the authority continues. 
 
 When, then, an act of Providence deprives the principal of 
 the power to exercise any judgment or will on the subject, the 
 authority of the agent to act should thereby be suspended for 
 the time being, otherwise the right of the agent would be con- 
 tinued beyond the period when all evidence that the principal 
 chose to continue the authority had ceased, for after the prin- 
 cipal was deprived of the power to exercise any will upon the 
 subject, there could be no assent, or acquiescence, or evidence 
 of any kind to show that he consented that the agency should 
 continue to exist. And, moreover, a confirmed insanity would 
 render wholly irrevocable an authority, which, by the original 
 nature of its constitution, it was to he in the power of the 
 principal at any time to revoke. 
 
 It is for these reasons that we are of opinion that the insanity 
 of the principal, or his incapacity to exercise any volition 
 
IN AGENCY. 235 
 
 upon the subject, by reason of an entire loss of mental power, 
 operates as to a revocation, or suspension for the time being, 
 of the authority of an agent acting under a revocable power. 
 If, on the recovery of the principal, he manifests no will to 
 terminate the authority, it may be considered as a mere suspen- 
 sion. And his assent to acts done during the suspension may 
 be inferred from his forbearing to express dissent when they 
 came to his knowledge : 1 Livermore on Agency, 300 ; Cairnes 
 V. Bleecker. 
 
 The act of the agent in the execution of the power, however, 
 may not in all cases be avoided on account of the incapacity. 
 If the principal has enabled the agent to hold himself out as 
 having authority, by a written letter of attorney, or by a pre- 
 vious employment, and the incapacity of the principal is not 
 known to those who deal with the agent, within the scope of 
 the authority he appears to possess, the transactions may be 
 held valid and binding upon the principal. Such case forms 
 an exception to the rule, and the principal and those claiming 
 under him may be precluded from setting up his insanity as 
 a revocation, because he had given the agent power to hold 
 himgelf out as having authority and because the other party 
 had acted upon the faith of it and in ignorance of any termi- 
 nation of it. They would be so precluded in the case of an 
 express revocation, which was unknown to the other party : 2 
 Livermore on Agency, 310 ; Salte v. Field, 5 D. & E. 215 ; 2 
 Greenleaf's R. 18. And a revocation by operation of law, on 
 account of the insanity of the principal cannot have a greater 
 effect than the express revocation of the party himself But 
 this case is not of that character. Here there was full knowl- 
 edge of the situation of the plaintiff's intestate, by Prescott, 
 when he received the note. 
 
 The principle that insanity operates as a revocation cannot 
 apply where the power is coupled with an interest, so that it 
 can be exercised in the name of the agent, for such case does 
 not presuppose any volition of the principal at the time, or 
 require any act to be done in his name, and is not revoked by 
 his death. 
 
236 ILLUSTRATIVE CASES 
 
 Whether it is applicable to the case of a power which is part 
 of a security, or executed for a valuable consideration, and 
 thus is by its terms or nature irrevocable, and which seems to 
 be regarded in England as a power couple^d with an interest 
 (10 Barn. & Ores. 731 ; 4 Camp. 272) may be a question of 
 more doubt: 2 Mason, 249. Such a power could not be re- 
 voked by the principal, if his sanity was continued (2 Liver- 
 more, 308), and any volition of his could not alter the case. 
 Some of the reasons, therefore, which have been adverted to, 
 would not exist in a case of that character. But a power of 
 that kind is to be executed in the name of the principal ; and 
 it was held, in Hunt v. Rousmaniere's Administrator, before 
 cited, that the death of the principal operates as a revocation 
 of it, for the reason that after that event no act can be done in 
 his name, as if he himself performed it. This reason would 
 not exist where he was still living ; and perhaps he and others 
 might in such case be precluded from setting up his insanity 
 in avoidance of the act, on the ground that he would have had 
 no right to interfere if sane, and had therefore no right to in- 
 sist on his insanity as an objection. 
 
 It has been held, in England, that the insanity of one part- 
 ner does not operate as a dissolution of the partnership, but 
 that object must be attained through a court of equity : Sayer 
 ■u. Bennet, cited 2 Ves. & Bea. 303 ; Gow on Part. [272]. But 
 the soundness of the principle may perhaps be doubted : 
 Waters v. Taylor, 2 Ves. & Bea. 303 ; Griswold v. Waddingtoii, 
 15 Johns. E. 57, 82. It certainly could not have been applied 
 here prior to 1832, as we had before that time no Court 
 through whose decree in equity a dissolution could have been 
 effected. Admitting it to be correct in its fullest extent, how- 
 ever, it would not affect this case, for each partner has an in- 
 terest, by the partnership contract, and the interest of one 
 partner would not be terminated by the insanity of another. 
 In making a sale or contract he does not act as agent, but in 
 his own right, and the partnership name may be used by one 
 Tvithout any supposition that another acts individually or has 
 any knowledge or volition in relation to the matter. But so 
 
IN AGENCY. 237 
 
 long as the partnership continues, the act of the one binds the 
 others ; and as it is, in its effect, the act of all the partners, it 
 may deserve great consideration whether the insanity of 
 one, in the absence of any stipulation to the contrary, does 
 not operate ipso facto as a dissolution of the partnership 
 itself. 
 
 The result of the view we have taken is that the wife of the 
 intestate had at the time no authority to dispose of this note 
 to Prescott, and that he acquired no title to it, and had no 
 right to receive the money. We have already held, on a 
 former case, in this suit, that a payment to him, by the defend- 
 ant, under such circumstances, could not operate to discharge 
 the note : 8 N. H. Rep. 224. The instructions to the jury were 
 erroneous, but there is no agreement in the case by which we 
 are authorized to enter judgment for the plaintiff, and the ac- 
 tion must, therefore, be transferred to the Common Pleas for a 
 new trial, if there is anything further in controversy between 
 the parties. 
 
 Mechem, 253, 258; Bishop Con. 1055; Story, 481, 487; Matthiessen v. Mc- 
 Mahon, 38 N. J. L. 536 ; Drew v. Nunn, 4 Q. B. D. 661 ; Hill v. Day, 34 N. J. 
 Eq. 150 ; Salisbury v. Brisbane, 61 N. Y. 617. 
 
 3 
 Bankruptcy of Principal or Agent. 
 
 The bankruptcy of either principal or agent terminates the agency. 
 
 Parker v. Smith. 
 
 Court of King's Bench, 1812. 
 
 16 East, 382. 
 
 Lord Ellenborough, C. J., delivered the judgment of the 
 Court. 
 
 It appears by the case, that the bankrupt, Samuel Parker, as 
 an underwriter, and the defendant as brokers, had been in a 
 course of dealing together in the year 1808, 1809, and up to 
 
238 ILLUSTRATIVE CASES 
 
 the period of Samuel Parker's bankruptcy, on the 27th of Au- 
 gust, 1810. That in the course of those dealings, at the time 
 of adjusting their last balance, which was up to 31st Decem- 
 ber, 1809, Samuel Parker, the underwriter, allowed the broker 
 to deduct from money otherwise payable to him for premiums, 
 what was due to the assured on various policies effected 
 and held by them as brokers, for returns of premium, for con- 
 voys and short interest, and otherwise, as the case states it ; in 
 effect, to deduct, as we must understand it, all that was claim- 
 able from the underwriter on account of the assured. As there 
 was in this case no del credere commission paid to the brokers, 
 the dealings with them must be considered as dealings with 
 them merely in the character of agents for the assured, and not 
 as dealings virtually had with the assured themselves; on 
 which special ground, in respect to the commission del credere 
 in that case, Grove ■;;. Dubois, 1 Term. Rep. 112, was deter- 
 mined. In their character of agents, the defendants' authority 
 as to acts done, that is to say, payments in fact made, and 
 transactions actually executed and consummated, cannot be 
 questioned. The underwriter and his assignees are precluded 
 by the adjustments which took place, from contending that the 
 brokers were not then well entitled to deduct and retain, what 
 ou the behalf of the assured they in fact then deducted and re- 
 tained, in account with the underwriter for losses, short 
 interest, and returns of premiums ; but still more deductions 
 were made, and acts done, under a determinable authority, as 
 to all subsequent concerns ; and inasmuch as a bankruptcy on 
 the part of the underwriter has, in fact, taken place, the ques- 
 tion is, whether that authority to settle on his behalf, to apply 
 his premium in hand to the satisfaction of demands justly 
 claimable against him by the assured, and which, up to that 
 time subsisted, is not in point of law countermanded ? And 
 inasmuch aS the bankrupt was not competent after his bank- 
 ruptcy to pay or apply this fund himself in satisfaction of these 
 claims of the assured, it follows as a consequence, that he could 
 not authorize his broker so to do ; otherwise the derivative and 
 implied authority would be stronger and more extensive than 
 
IN AGENCY. 239 
 
 the original and principal authority of the party himself, 
 which cannot be. The consequence is, that the authority of 
 the agent, the brokers, was virtually countermanded and ex- 
 [ tinct by that act of bankruptcy, by which the bankrupt's own 
 ■original power over the subject-matter ceased and became 
 *transferred to others. In conformity, therefore, with what was 
 ■decided by the Court of Common Pleas, in Minett and Another, 
 Assignees of Barchard v. Forrester, which proceeded expressly 
 ■on this grour^d, that the authority given by the bankrupt ceased 
 by his bankruptcy, we are of opinion that the plaintiffs are 
 •entitled to recover all the three sums demanded by this ac- 
 tion ; the same not being retained by virtue of any antecedent 
 adjustment by the bankrupt, nor of any authority from him, 
 ■express or implied, extending to payments or adjustments to 
 be made subsequent to his bankruptcy. How far these sums 
 ■could have been recovered from the brokers, if the bankruptcy 
 had not happened, it is unnecessary for us to consider or decide 
 upon the present occasion. 
 Judgment for the plaintiffs. 
 
 Mechem, 263, 267 ; Story, 482 ; Minett v. Forrester, 4 Taunt. 541 ; Bishop 
 ■Con. 1056 ; Rowe v. Band, 111 Ind. 206. 
 
 Bankruptcy of Agent. — ^Where the agent's solvency is essential to the agency, 
 as where he is authorized to receive money for the principal, his bankruptcy 
 ■will terminate the agency : Audenried v. Betteley, 8 Allen, 302 ; Hudson v. 
 Granger, 5 B. & Aid. 27 (7 Eng. Com. Law, 10). 
 
 War. — War being declared between the countries of the principal and 
 .agent, the agency is dissolved : Montgomery v. U. S., 15 Wall. 395 ; Insurance 
 Co. V. Davis, 95 U. S. 425.