If'? ^■tS:-'?i, ^^. %■ SMmMMtwim OJnrnpll Haw ^rlynnl library COMMENTARIES ON THE LAW OF AGENCY AS A BRANCH OF COMIERCIAI AND lARITIIE JURISPRUDENCE, WITH OCCASIONAL HJ-USTKATIOHS FROM THE CiyiL ANB FOREIGN LAW- By JOSEPH STOEY, LL.p., ONB OF THE JUSTICES OF THE SUPEEME COtmT OF THE UNITED STATES, AND DAKE PROFESSOH OF LAW IN HAKVAKD UHIVEESITT. I " The Maritime Law is not the Law of a particular country." — Lord Mansfield. " If Law be a Science, and really deserve so sublime a name, it must be founded on principle, and claim an exalted rank in the Empire of Reason." — SiE William Jones. . SEVENTH EDITION, REVISED AND IMPROVED, WITH IMPORTANT AND VALUABLE ADDITIONS, By ISAAC F. REDFIELD, LL. D., AND i WILLIAM A. HERRICK BOSTON.: LITTLE, BROWN, AND COMPANY. 1869. Entered according to Act of Congress, in the year 1S5?, by WILLIAM W. STOKY, in the Clerk's Office of the District Court of the District of Massachusetts. Entered according to Act of Congress, in the year 1862, by WILLIAM W. STOKY, in the Clerk's Office of the District Court of the District of Massachusetts. Entered according to Act of Congress, in the year 1869, by WILLIAM W. STOKY, in the Clerk's Office of the District Court of the District of Massachusetts. CAMBRIDGE : PHESS OP JOBM WILSON AND SON. ADVERTISEMENT TO THE SEVENTH EDITION. • The editors of the present edition ha^e been at considerable labor and pains to have it as acceptable, both to the student and the practical lawyer, as possible, and they believe every thing has been done to insure that result, which could prop- erly be expected of them ; and they feel justified in expecting that the book will be found satisfactory to all who desire a reliable text-book upon this important subject brought down to the time of publication. The additions to the present edition are thus indicated [* ]. Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924019288251 TO THE HONOKABLE JOHN DAVIS, LL. D. district judge of the massachusetts district. Sir, In dedicating this work to you, I perform one of the most ' pleasant duties of my life, — the duty of paying a public homage to your character, and of inscribing on these pages a memo- rial of our long and uninterrupted friendship. Nearly twenty- eight years have elapsed, since, upon my advancement to the Bench of the Supreme Court, I had the satisfaction of meeting you as my colleague in the Circuit Court. During the inter- mediate period, we have passed through many trying scenes of peace and war, of excited controversies between the great politi- cal parties of our country, of seasons of severe prohibitions and pressures upon the commercial and other interests of the com- miinity, and of changes of public policy, carrying in their train penalties and forfeitures, which made even the ordinary ad- ministration of justice assume a stern and almost a vindictive aspect. The patience, the candor, the urbanity, the sound dis- cretion, and the eminent ability with which you performed all your judicial functions during this period, are known to no one better than to myself; for I have been the constant witness of them, and have sometimes partaken of them, and have always been instructed by them. In the earlier part of your judicial career, you led the way in exploring the then almost untrod- den paths of Admiralty and Maritime Jurisprudence, and laid the profession under lasting obligations, by unfolding its vari- VI DEDICATION. ous learning and its comprehensive principles. Your judgments have stood the test of time, and are destined to be laid up among the Hesponsa Prudentium for professional instruction in future ages. But I confess myself more desirous, on this occasion, to ac- knowledge with unaffected gratitude my deep sense of your personal friendship and continued kindness. They have light- ened many heavy labors; they have cheered many saddened hours ; and, above all, they have taught me to feel, the value of the truth, that the indulgent approbation of the wise and good is among the most enviable of human blessings. Truly may I say to you, in the language of Lselius, as recorded by Cicero : — Sed tamen recordatione nostrse amicitise sic fruor, ut beate vixisse videor, quia cum Scipione vixerim; quocum mihi conjuncta cura de re publica et privata fuit ; — et (id, in quo est omnis vis amicitise) voluntatum, studiorum, sententiarum, summa consensio. I am, with the highest respect, Your obliged friend, JOSEPH STORY. Cambkidge, July 18, 1839. P E E F A C E. The present volume is the commencement of a series of Com- mentaries, which, in pursuance of the original scheme of the Dane Professorship, it is my design, if my life and health are prolonged, to publish, upon the different branches of commer- cial and maritime jurisprudence. The task is truly formidable, and full of difficulties ; and I approach it with a diffidence pro- portionate to the public sense of its importance, and to my own consciousness that its perfect execution will require a leisure, and learning, and ability, which are very far beyond my reach. So various are the topics to be discussed, and so numerous the authorities to be consulted, that a whole life might well be spent in collecting and mastering the materials. Even when these should be brought together, the labor of analyzing the princi- ples, and reducing them to a text of a moderate extent, with the practical illustrations necessary to explain and confirm them, might be found sufficient to create some discouragement even in minds accustomed to the close discipline of juridical studies. What I propose to do, therefore, I beg may be treated as an approximation only towards the accomplishment of such a de- sirable object. My efforts will be to present accurate outlines of the leading doctrines of commercial and maritime law. But it must be left to more gifted minds to enjoy the enviable dis- tinction of having embodied in a durable form the entire details of this vast science. Although it is my intention to consult the works of foreign VUl . PREFACE. jurists and civilians, and to introduce into the text illustrations from the Roman law, and the maritime jurisprudence of Conti- nental Europe, so far as my own , imperfect studies will enable me to do so ; yet I shall mainly rely upon the elementary trea- tises and judicial decisions of England and America, as furnish- ing the most solid and useful expositions of all the doctrines which are to be maintained in these Commentaries. It would betray a narrow subjection to mere prejudice, or a wanton dis- regard of some of the best sources of instruction, to pass by with neglect the glorious labors of the Roman jurists, or the masterly treatises of such men as Pothier, and Bmerigon, and Valin, which have furnished so much to improve and adorn our own law. Sir William Jones has with great felicity said : " What is good sense in one age must be good sense, all circumstances remaining, in another ; and pure, unsophisticated reason is the same in Italy and in England, in the mind of a Papinian and of a Blackstone." Still, however, it will scarcely be denied, that the judgments of the Courts of Common Law, upon the great topics of Commercial and Maritime Jurisprudence, since the ele- vation of Lord Mansfield to the Bench, place them in advance of all others for practical wisdom, profound reasoning, acute discrimination, and comprehensive equity. In dismissing the present work, and asking for it the indul- gent consideration of the Profession, I desire to make a single explanatory remark. As the work is mainly designed for the elementary instruction of students (although, I trust, it may be found useful to lawyers of a more advanced standing), the same train of observations will be found occasionally repeated in dif- ferent connections. ■ This has been done in order to avoid the embarrassment of perpetual references to other parts of the work, which students could scarcely be presumed to keep con- stantly before their minds; as well as to furnish them with qualifications, and limitations, and illustrations of principles, which might not otherwise be obvious, or fully appreciated, PEBPACB. IX when presented in a disconnected form. The admonition of our ancient master, Littleton, should never be forgotten, that by the arguments and reasons in the law a man sooner shall come to the certainty and knowledge of the law. '^ Lex plus laudatur, quando ratione probatur." CAUBBiDaE, near Boston, Jvdy 18, 1839. CONTENTS. Index to Cases cited xiii CHAPTEK I. Sections Agency in general 1-4 CHAPTER II. Who are capable of becoming Principals and Agents . . . 5-22 CHAPTER III. Different kinds of Agents 23-37 CHAPTER IV. Joint Principals and Joint Agents , 38-44 CHAPTER V. Appointment of Agents 45-56 CHAPTER VI. Nature and Extent of Authority 57-143 CHAPTER VII. Duties and Obligations of Agents in executing Authority . . 144-217 a CHAPTER VIII. Liabilities of Agents to their Principals 217S-234 CHAPTER IX. Defences of Agents against Principals ........ 235-260 Xll CONTENTS. CHAPTER X. SectioDB Liabilities of Agents to third Persons, on Contracts .... 261-301 CHAPTER XI. Liabilities of Public Agents on Contracts 302-307 a CHAPTER XIL Liability of Agents for Torts 308-322 CHAPTER Xin. Rights of Agents in regard to their Principals 323-350 CHAPTER XIV. Right of Lien of Agents 351-390 CHAPTER XV. Rights of Agents in regard to third Persons ....... 391-416 CHAPTER XVL Rights of Principals against third Persons 417-440 CHAPTER XVIL Rights of third Persons against Principals 441-461 CHAPTER XVIIL Dissolution, or Determination, of Agency 462-500 Index p. 631 INDEX TO CASES CITED. The References are to the Sections. A. Section Aatey v. Trevilion 179 Abbe V. Rood 255 Abbey v. Chase 264 a Abraham v. Reynolds 453 g Acker o. Campbell 312 Adams v. Adams 167 V. Lindsell 493 V. Oakes 394 . Adamson v. Jarvis 308, 312, 313, 339 Addison v. Gandassequi 267, 288, 289, 290, 291, 400, 423, 446, 448 Agace, ex parte 124, 125 Agar V. Athenasum Life Ins. Co. 49 Agricola (The Ship) 454 a, 456, 456 a Akin V. Bedford 135, 155 Alexander v. Alexander 166, 167 ».' Bank of Rutland W4 V. Barker 270 V. Gibson 59, 73, 135 V. Mackenzie 119 V. Southey 310 Alexander (The Ship) 119 a Alford V. Egglefield 269 AUair v. Ouiand 339 Allen V. Ayres 160, 161 V. Coit 269, 446 a V. Hayward 454 c — V. McKeen 300, 301 V. Ogden 73» 126 V. Suydam 189 Alley V. Hotson 488 Althorp V. Wolfe 453 American Fur Co. v. Gibson 134 V. IT. States 134 American Ins. Co. v. Coster 118 V. Oakley 54 Amiable Naricj; (The Ship) 220, 221 Amory v. Hamilton 255, 256 V. Merryweather 346 Amos V. Temperley Section 263, 274, 395 Ancher v. Bank of England 435 Ancona v. Marks 244 Anderson v. Clark 361 V. Coonley 17, 18, 19, 58, 69, 133 ». Highland Turnpike Company 162 V. Sanderson 138 V. Saunderson 138 Anderton v. Shoup 164 Andrews v. Estes 147, 148, 160, 364 a V. Kneeland 18, 59, 72, 73, 102, 109, 126, 133 Anonymous 6, 50, 66, 104, 149, 153 V. Harrison 470, 473 Hopkins 6, 8 V. JoUand * 204, 207 Ansley v. Anderson 210 Antrobus v. Wickins 329 Appleton c. Binks 148, 155, 273, 275, 278 Appleton Bank v. McGilvray 14 Arbonin v. Anderson 228 Arfridson v. Ladd 147 Arlington v. Hinds 395 Armistead, ex parte 228, 229, 264 Armory v. Merryweather 346 Armstrong v. Gilchrist 239, 255 V. Toler 196, 330, 344, 846, 347 Arrott B. Brown 208, 217 c, 220 Arthur V. Barton 119 a, 122 Aspinwall v. Bartlett 296, 298 Assop V. Gates 463 h Astor B. Wells 140 AthensBum Life Ins. Co. v. Pooley 49 Atkyns V. Amber 107, 161, 397, 402, 404, 407 V. Batten 394 XIV INDEX TO CASES CITED. Attorney-General v. Berryman . 13 V. Case 456 a V. Corporation of Leices- ter 217 c V. Life and Fire Insur- ance Company 63 4!. Siddon 452, 453 Atty V. Parish 450 Atwood V. Munnings 21, 22, 66, 67, 68, 72 Aubert V. Maize 235, 346 Audenried v. Betteley 486 Avery v. Halsey 339 B. Bacon v. Dubary Baikie v. Chandlesa Bailey v. Adams V. Chapman V. Mayor, &c. York Bainbridge v. Downie Baker v. Freeman ». Whiting Baldwin v. Cole V. Leonard Ball V. Dunsterville Ballou V. Talbot 154, 251, V. Farnham 148 24 362 829 of New 320, 321 302, 306, 412 49 210, 211 312, 437 266 51 , 264, 264 a, 275 452 Ballston Spa Bk. v. Marine Bk. 211 Baltimore v. Reynolds 307 a Baity V. Cogswell 169 Bamford v. Shuttleworth 300 Banfill V. Leigh, 393 Bank of British North America V. Hooper 147, 160 a Bank of Buffalo v. Kortright 127 Bank of Columbia v. Patterson's Administrators 53, 149, 253 Bank of England v. Moffat 63 Bank of Hamburg v. Johnson 69 V. Wray 264 a Bank of New York v. Vanderhorst 488 Bank of N. America v. Hooper 164 Bank of the Metropolis v. Guttchlick 62 V. Jones 115 V. The New England Bank 379 Bank of United States u. Bank of Georgia 116, 800 V. Bank of Washington 300, 301 V. Binney 126 V. Dandridge 62, 63 V. Davis 134, 139, 139 a, 140, 140 a, 140 6 V. Dunn 116 ■ Bank of Utica v. Smith 247 Banks v. Eastin 394 Banorgee v. Hovey 49, 450 Barber v. Britton 462 V. Gingell 66 Barber Surgeons of London v. Pelson 63 Barclay, ex parte 247 Bard v. Yohn 453 a Baring v. Corrie 28, 33, 34, 66, 109, 164, 227, 390, 404, 420, 429 V. Lyman 37 Barker v. Greenwood 98, 181, 413 V. Marine Ins. Co. 211 V. Mechanics' Fire Ins. Co. 164, 276 V. Taylor 208 Barlow v. Leckie 248 Barnard v. Wheeler 127, 263 Barnes v. Foley 306, 306, 307 Barnett v. Lambert 68 Barrett v. Warren 312 Bartholomew v. Leach 211 Bartlett v. Pentland 98, 103, 109 Barton v. Hughes 414 V. Winter 226 Bartram v. Farebrother 440 Barwick v. Eng. Joint Stock Co. 456 Basford v. Whisjtler 107 Bastable v. Poole 270 Bateman v. Bateman 67 V. Phillips 160 a Bates V. Bank of the State of Alabama 62 V. Best 49 V. Pilling 456 Batty V. Carswell 165, 169 V. Duxbury 464 a Bauerman v. Eadenius 138 Baum V. Dubois 61, 211 Bayley v. Mayor of N. York 320 Beach v. Vandewater 72 Beale v. McKiernan 28, 210, 211 Beals V. Allen 73, 126 Beard v. Kirk 470 Beaufort, Duke of, v. Neeld 127 Beaumont v. Boultbee 192, 382, 836 Beckwith v. Sibley 385 Bedford v. Jacobs 266 Beebe v. Roberts 160 a, 266, 270, 892, 896 Belchier.c. Parsons 96 Belden v. Campbell 119 a Belknap v. Davis 58 V. Reiuhart 302, 306 Bell, ex parte 346 V. Bruin 154 V. Cunningham 217 c, 220, 221, 243, 268 INDEX TO CASES CITED. XV Bell V. Gilson 161 V. Joslin 308 V. Kymer 274 V. Palmer 189 Benn v. Hoyt 300, 301, 304, 305 V. Swartwout . 307 Benedict v. Smith 250 Bennett, ex parte 210, 211 V. Davis 6 V. Judson 139 • V. Moira 456 a Benny v. Rhodes 113 Benoit v. Conway 480 Bensley v. Bignold 235, 346 Bentley v. Columbia Ins. Co. 9 Berkeley v. Hardy 49, 149, 274 a V. "Watling 119, 140 Bernard v. Torrance 302 Berthoud v. Gordon 190 Bertram v. Godfrey 75 Betham v. Benson 137, 138 Betts V. Gibbins 339 Bevans v. Waters 354 Beverley v. Lincoln Gas Light and Coke Co. 53, 56 Bexwell v. Christie 195, 235 Bickerton v. Burrell 396, 398, 406, 446 Bigelow V. Walker 186 Biggs V. Lawrence 138 Billings V. Morrow 239 Billon V. Hyde 250, 259 Bingham v. Cabot 138 Binney v: Crineley 394, 395 Bird V. Boulter ' 27 Bird's Syndic v. Dix's Estate 204 Blackburn v. Scholes 93, 98, 430 Blackett v. Royal Exchequer Ins. Co. 74 Blackstook v. N. T. & Erie Rail- road 452 Blackwell ». Wiswall 454 Blades v. Free 265 a, 488 Blake v. Ferris 454 a, 454 c V. Nicholson 355 Blakie v. Stenbridge 454 Blanchard v. Page 394 Blandy v. Allen 113 Blood V. Goodrich 49, 161, 242, 252, 395, 422 Blore V. Sutton 13, 146, 249 Blot V. Boiceau 74, 192 Bloxam, ex parte 380 Blumenthal v. Brainerd 443 Bocock V. Pavey 13 Bogart V. De Bussy 148, 274 a BoUand v. Bygrave 228, 380 Bollen V. Hyde ' 269 Bolton V. BuUer 228, 380 Bolton V. Hillersden Bonbonus, ex parte Bothlingk v. Inglis Boyd V. McLean V. Vanderkemp Boor V. Vandall Booth V. Hodgson V. Mister 56 124 440 230 140 343 235 453 Bootle V. Blundell 67 Bosanquet v. Dudman 228, 370, 380 Boson V. Sanford 116 Bostock V. Jardine 78 Boston & Maine Railroad v. Whitcher 274 Bottsford V. Barr 60 Boucher v. Lawson 121, 343 V. Noidstorm 318, 319, 821, 464 Bouchout V. Goldsmid 225 Bousfield V. Creswell 103, 109 Bowcher v. Noidstrom 466 Bowen v. Morris 53, 154, 264, 270, 276, 278, 302, 303, 396 Bower v. Jones 326 Bowerbank v. Morris 470 Boyntown v. Turner 239 Boyson v. Coles 113, 224, 225, 227, 367 Brace v. Duchess of Marlborough 352 Bracken v. Meller 140, 141 Bradford v: Bush 59, 102, 498 V. Eastburn 308 Bradlee v. Boston Glass Manufac- tory 147, 154, 268, 270 .Bradley v. Richardson 215 Bramah ». Roberts 380 Branby v. CoxweE 317 a Bray v. Kettell 258 a Breedin v. Dubarry 258. Bree v. Holbeck 134 Breedlove v. Wamack 239 Brennan v. Curriut 362 a Bre\ifster v. Hobert 13 V. Saul 420 Bridge v. Austin 188 V. Niagara Ins. Co. 418 Bridgeport Bank v. N. Y. N. H. R. Co. 49 Brigham v. Marean 394 V. Peters 90, 136 Brinley v. Mann 149, 164 a Bristow V. Porter 466 Broad V. Thomas 329 Brock V. Jones 242 Brockway v. Allen 154, 266, 277, 278 Bromley v. Coxwell 14, 34, 201, 202 V. Holland 477 Brookshire v. Brookshire 49, 50, 463 Bronson v. Woolsey 302 XVI INDEX TO CASES CITED. Broughton v. Manchester Water Works Co. _ 52 Brown ». Austin 302 ■ V. Boorman 32 a V. Croft 334 V. Duncan 346 V. Frantum 126 J). Heathcote 361 V. Lent 313, 454 V. Maxwell 453 e V. McGran 74 V. Parker 147 V. Puriance 466 V. Rundlett 806 V. Southouae 205 V. Trantum 126 V. Turner 346 Bruce V. Hunter 338 Brucker v. Promont 453, 456 Brulssard v. De Cloets 183 Bryan v. Lewis 238 ■ 8). Nix 361 V. Wilson 393 Bryant v. Moore 19, 102, 126, 253 Bryce v. Brooks 34 Bryden v. Stewart 463 h Buchannon v. Upshaw 239, 244 Buckmaster v. Harrop 27 Buffalo V. HoUoway 454 a Buifum V. Chadwicke 394 Buller V. Harrison 301, 302 Bulmer, ex parte 236 Bunker v. Miles 9 Burgess v. Gray 454 c Burls V. Smith 286, 287, 289 Burn V. Brown 360 Bumes v. Pennel 126 Burney v. Plumley 893, 394, 396 Burnham v. Williams 147 Buron v. Denman 246 Burrell v. Jones 74, 155, 269, 278, 280 393 BurriU v. Phillips 186, 198, 342, 376, 885 Burrough v. Skinner 206 Bursey v. Donaldson 466 a Burt V. Palmer 138 Bush V. Steinman 311, 313, 822, 462, 453 a, 454, 454 c, 460 Butman v. Bacon 63 a Byarr v. Doores 264 a Byers v. Fowler 135 Byrne v. Doughty 268 V. Sehwing 110 Byron v. N. Y. State Printing Telegraph Co. 453 h C. Cadyw. Sheppard 49, 51, 125, 242, 251 Caffrey v. Darby 96, 200, 208, 217, 218, 219 Caimes v. Bleecker 243, 258 Calais, &c., Co. v. Van Pelt 93, 224 Caldwell t). Harrison 42 Callaudar v. Marsh 320 V. Oebicks 331 Calton V. Bragg 838 Cameron «. Reynolds 308 Campbell v. Baker 154, 261 V. Hall 301 V. Hassell 98, 103, 109 V. Hillman 264 V. Leach 167 V . Pennsylvania Life Ins . Co . 21 1 V. Proctor 368 V. Walker 210, 211 Campnari v. Woodburn ' 488 Canaan v. Bryce 235, 846 Cane v. Allen 210, 211, 212 Canonge v. Louisiana State Bank 208 Capel «. Thornton 102,108 Capp V. Topham 336, 339 Carey v. Webster 801, 461 Carmichael v. Buck 127 Carpenter v. American InS; Co. 134, 139 Carr v. Hinchliff 420, 430 Carriger v. Whittington 265 a, 488 Carruthers v. Sidebottom 466 a Carstairs v. Bates 228 Cartwright v. Hately 203, 217 Case V. Jennings 478 Cass V. Ruddle 165 Cassiday v. M'Kenzie 488 Castling v. Aubert 379 Castrique v. Buttigieg 167 CatUn V. Bell 13, 14, 34, 146, 193, 195, 201 Catterall v. Hindle 98 Cayhill v. Fitzherbert 148, 155 Chamberlain v. Harrod 211 J). M. & M. Raiboad 453 g Champion v. Plummer 28 Chapman v. Darby 878 V. De Tastet 826 V. Morton 141 ». N. Y. Central R. R. Co. 462 V. Walton 183 Charnley v. Winstanley 481 Charter v. Trevellyan 9 Chase v. Westmore 354, 855, 356, 362, 362 a Chedworth v. Edwards 203, 205, 229, 832, 333 INDEX TO CASES CITED. xvu Cheever v. Smith 431, 434 Cheeves v. Smith 449 Chesapeake Ins. Co. v. Stark 103 Cheviot V. Brooks 183 Chidsey.u. Porter 65 Chilcot V. Bromley 453 a Child V. Corp 200 V. Morley 336 Childs V. Monins 280 Chorpening's Appeal 211 Church V. Imperial Gas Light and Colce Co. 53 V. Marine Ins. Co. 210, 211 V. Mansfield 456 Cincinnati v. Stone 464 City Council v. Duncan 490 City of London Gas Light, and Coke Co. V. Nicholls 53 Claflin V. Farmers', &c. Bank 211 Clark V. Corporation of Wash- ington 62, 308 V. Courtney 147, 148, 149, 150, 151, 162, 160, 488 V. Guardians of Cuckfield Union 66 V. Highgate Archway Company 62 V. Merchant's Bank 228 V. Moody 332 V. Pigot 394 V. Shee 435, 437, 438, 489 V. Van Northwick 60 V. Vermont & Canada Railroad 464 Clark's Executors v. Van Reimsdyk ■ 161, 162, 250, 263 V. Wilson 160 Clark's Lessees b. Courtney 68 Clarke v. Tipping 179, 186, 204, 209, 883 Clay V. Oakley 264 a Clealand v. Walker 449 Cleaves v. Stockwell 201 Cleavelahd v. Steward 276 Clement v. Leverett 227 Clemson v. Davidson 361, 367 Cleveland, &o. Rail Co. v. Eeary 463 g Clifford V. Burton 138 Clinan v. Cooke 50 Coates V. Lewes 164, 420, 430 Cobb V. Becke 201 Cochran v. Irlam 13, 14, 29, 34, 113, 201, 217 a, 367, 389 V. Newton 21 Cock V. Taylor 274, 298 Cocke V. Campbell 59 V. The Comm. Ins. Co. 36 Coddington v. Bay 228 Codwise V. Hacker 243, 268 CoiFman v. Harrison 264 a Coggs V. Bernard 182, 188, 463 Cohen v. Paget 826 Colburn v. Phillips 396 Coleman v. Lambert 274 V. Riches 69, 119, 451 Coles V. Bell 247, 440 V. Bristowe 110 V. Trecothiok 14, 60, 108,- 146, 249 CoUen V. Wright 264 Collins V. Butts 160 a, 261, 269 V. Martin 288 V. TiUon 216 Colthay V. Fennell 160 a Columbian Ins. Co. v. Lawrence 111 Colvin V. Holbrook 263 Comber v. Anderson 191, 200 Commercial Bank v. Cunningham 140 a V. French 160 a, 161, 394, 896, 896 V. Warren 263 Commercial Bank of Buffalo v. Kortright 127 Commercial Bank of Erie v. Nor- ton 13, 14, 187 Commercial Bank of New Orleans V. Martin 201 Commons v. Marshall 167 Conard v. Atlantic Ins. Co. 229 Cofldit V. Baldwin 126 Congar v. Galena, &c. R. R. Co. 132 Conkey v. Bond 211, 214 Conn V. Penn 239, 263 Consequa v. Fanning 342 Conwell V. Voorhees 319 a Cooch V. Goodman 276 Cook V. Parham 453 e Cooke V. Wilson 165, 269 Cooker v. Childe 896 Cooley V. Norton 137 Coombe's case 6, 12, 13, 49, 146, 147, 148, 160, 161, 162, 488 Coon V. The Utioa R. R. 463 e, 463 g Coope V. Eyrie 38 Cooper's case 6 Cooper V. Gooderick 63 V. Rankin 49 Coore V. Callaway 247, 440 Copeland v. Merchants' Ins. Co. 42, 148, 210, 211, 239, 243, 269, 474 V. New England Mar. Ins. Co. 453 e «. Stein 349, 377 Copes V. Matthews 302, 306 Copper Mining Co. (The) v. Fox 56 Copping V. Craig 397, 399, 403, 404, 407 xvm INDEX TO CASES CITED. Copping V. Walker 390, 397, 403, 404,, 406, 407 Coquillard v. French 68 Corbin J). Adams 135 V. American Mills 341 Corlies v. Gumming 38, 385, 429, 481 V. Widdefield 179, 204 a, 342 Cornfoot V. Fowke 139 Cornforth v. Rivett 362 Corning v. Southland 250, 266 u. Strong 63 a Cornwall v. Wilson 111, 143, 198, 244, 250, 259 Corser v. Paul 114 Courcier v. Ritter 74, 255, 256, 258 Couturier v. Hastie 215 Coventry «. Barton 339 Cowell V. Simpson 356, 361, 362 Cowen V. Simpson 140 Cox V. Midland Counties Railway Co. 69 V. Prentice 300 Coxe V. Harden 394 Craig V. Radford 149 Crane v. Bedwell 255 Crans v. Hunter 250 Cranstoun v. Philadelphia Ins. Co. 379 Crauford v. Hunter 111 Crawford v. Louis. State Bank 208 Crawshaw v. Homfray 362 Creager v. Link 466 Crockford v. Winter '453 Croft V. Alison 466 Cronkite v. Wells 104 Crooker v. Appleton 263 Cross V. United States 42 Crosse v. Gardiner 308 Crousillat v. Ball 36 Cud V. Rutter 238 Cull V. Backhouse 201, 886 CuUen u. Duke of Queensbury 285 Cumberland Coal Co. v. Sherman 211 Cumming,«. Roebuck 28 Cummins v. Cassilly 49 Cunningham v. Soules 264 a, 279 Curling V. Robinson 40, 444 Currier v. Lowell 454 c Curtis V. Barclay 385, 364 — V. United States 807 a Cushman v. Loker 254 Cuthbertson v. Parsons 454 a D. D'Abridgecourt v. Ashley 148 D'Aquila v. Lambert 350 D'Arcy v. Lisle 339 Dale V. Hall 218 V. Humfrey 266 Dale V. SoUett 860 Dalton V. Irving 329 Dalyell v. Tyrer 453 b Dalzell V. Mair 435 Damon v. Inhabitants of Granby 42, 49, 97, 102, 149, '278 Danforth v. Schohar. and Duane Turnpike Co. . 52, 53 Daniel v. Adams • 27, 181 Daniels v. Burnham 149, 160 a , ex parte 236 Dartnall v. Howard . 183 Daubigny v. Duval 78, 113, 860, 867 Davidson v. Stanley 101 Davis V. Bowsher 228, 262, 372, 880 V. Bradley 361 V. Garrett 200, 218, 219 V. Lane 481 Davol ». Quimby 474 Davoue v. Fanning 211 Dawes v. Jackson 802, 306 Dawson v. Atty 134, 135 V. Lawley 85, 102 Day V. Crawford 110 V. Edwards 466 Dayton v. Pease 808 Dean v. Branthwaite 453 a Dean, &c. of Rochester «. Pierce 53 De Bernardy v. Harding 329 De Bouohout v. Goldsmid 68, 72,- 78 Deeze, ex parte 854 De Forest v. Fulton Ins. Co. 38, 111, 190 V. Wright 464 c De Gallion v. L'Aigle 268, 290 Degg V. Midland Railway Co. 463 a, 453 i De Grave v. Mayor, &c. of Mon- mouth 63 De la Chaumette «. Bank of England 394, 406, 414 Delafield v. Illinois 60 Delaney v. Stoddard 218, 222 Delauney v. Strickland ' 288, 289 Delaware Ins. Co. v. Delaunie 336, 338 De Mautort v. Sanders 270 Deming v. Bullitt 161, 153 Den V. Wright 239 Denew v. Daverell 183, 331, 333 Denisonu. Seymour 313, 814, 316, 317 V. Tyson 77 Dennan v. Bloomer 58 Denning v. Smith 133 Denny v. Manhattan Co. 308 Denton v. East Anglican Rail Co 53 V. Rodie 275 De Rutte v. Muldron 68 Descadillas v. Harris 116 INDEX TO CASES CITED. XIZ DesHer v. Beers 186 Deslandes v. Gregory 164 Despatch Line of Packets v. Bellamy Manuf. Co. 13, 42, 154, 242 269 DeTastet v. Crousillat 74, 190, 2 18, 222 De Valingin's Adm'r v. Duffey 430 Devall V. Burbridge 208 De Vignier v. Swanson 161 Devinney v. Reynolds 153 De Witt V. Walton 154 Diana (Thfr) 466 a Dick ». Page 498 Dickinson v. Lilwall 28 V. Watson 456 Diggle V. London Railway • 53 Dillage v. Dillage 140 Dinwiddle v. Bailey 360 Diplock V. Blackburn 207 Dixon V. Bromfield 9, 211 V. Ewart 482, 486 V. Hamond 217 — '- V. Rankin 453 g Dodge V. D'Wolf 74 V. Lambert 259 V. Perkins 204 V. Tilestou 217 c, 331, 833, 348 Dodsley ». Varley 368 Doe d. Lyster v. Goldwin 246 V. Marten 462 V. Summersett 246 Mann v. Walters 246, 440 Thomas v. Roberts 6 Doe V. Bingham 49 ' !).• Robinson 134 V. Thompson 394 Dorchester Bank v. New England Bank 14 Doty V. Miller 329 Doubleday v. Muskett 285, 286 Dougal V. Kemble 274 Doughady v. Crowell 256 Douglass V. Moody 118 Dow V. Spenny . 253 Dowding v. Goodwin 376 Downman i). Jones 164, 264, 264 a Dows V. Greene 56 Drake v. Marryatt 138 Draper v. Mass. Steam Heating Co. 147,264 a Dr. Bethune's case 406 Dresser v. Norwood 448 Drew V. Bird 274 Drinkwater v. Goodwin 112, 364, 867, 368, 876, 407, 409 Drummond o. Wood 85, 141 Dubois V. Delaware & Hudson Canal Co. 164, 160, 161, 162, 263, 275, 277, 278, 422, 450 Ducarrey v. GUI 68 Duchess of Cleveland v. Dashwood 98 Duclos V. Ryland 78 Duke of Norfolk v. Worthy 406, 435 Duncan v. Findlater 321, 454, 459 Dundee (The Ship) 453 V. Lambert 274, 393, 395 V. Munroe, 814, 319, 319 a Dunstan v. Imperial Gas Light Co. 53 Du Puirat v. Wolfe 274 Dupont V. Mount Pleasant Ferry Co. 160 a Dupont V. Wertheman 99 Durkee v. Vt. Central Railw. Co. 329 Durnford v. Patterson 208 Dusar v. Perit 193, 237 Dusenbury ». Ellis 156, 264, 264 a Dutton V. Poole 895 Duval V. Craig 155, 273 Dwinelle v. Henriquez 302 Dyer v. Burnham 147 V. Pearson 93, 104 Dynen v. Leach 463 h E. Eagle Bank v. Smith 95 Earl V. Rowcroft 36 Earle v. Hall 454 c Eastern Railroad v. Benedict 161, 895 East India Co. v. Glover 53 V. Henchman 211, 214 V. Hensley 109, 131, 183, 264 East London Water Works Co. ». Bailey 52, 53 Eaton V. Bell 165, 156, 157, 269, 283 V. Welton 203 Edgar v. Fowler 236 Edgerton v. Thomas 7 Edmiston v. Wright 386 Edmond v. Caldwell 160 a Edwardsu. Grand JunctionCanal Co. 53 V. Hodding 800, 301 Eicke V. Meyer 826 Ekins V. Macklish 60, 63, 74 Eland v. Carr 362 Eliza Cornish (The) 118 Elliott V. Abbott 114 V. Swartwout 301, 307, 436 u. Walker 389 Ellis V. Sheffield Gas Co. 454 c V. Turner 448, 462 Else V. Gatward 478 Elwell V. Shaw 146, 147, 148, 149 Emerson «. Blonden 7 V. Heelis 27 V. The Providence Hat Man. Co. 13, 77, 164 INDEX TO CASES CITED. Emery v. Fell 53 Enloe V. Hall 302 Episcopal Charity Soc. v. Episco- pal Church in Dedham 254 Erick V. Johnson 255, 266 Esdaile v. La Nauze 62 Eshleman v. Lewis 211 Essex Turnpike Corporation v. Collins 52 Esteban de Comas v. Frost 489 Evans v. Ellis 212 — V. Martell, or Marlett 274, 395 V. Potter 113, 198 V. Root 110 V. Wells 164 Everett v. Collins 431 Ezell j;. Franklin 69 F. Faikney v. Reynous 235, 346, 347 Fairbrother v. Simmons 9, 27, 31 Fairfield v. Adams 160 a, 269, 393, 394 Fairlie v. Hastings 134, 135, 136, 137 Farebrother v. Ansley 308, 309, 312, 339 Farmer v. Davis 296^ 297, 298, 299 V. Robinson 465 V. Russell 235, 347 Farmers' Bank v. Troy City Bank 164 Farmers' Bank, &c. v. Butchers', &c. Bank 17, 119 Farmers' Loan and Trust Co. v. Walworth 250 Farnsworth v. Hennon 31, 54 Farren?). Oswell 191 Farwell v. The Boston & Worces- ter Railroad Corporation 308, 453 e 453 g V. Meyer 243 Favenc v. Bennett 98, 429, 430 Feeter v. Heath 264, 264 a Felker v. Emerson 7 Feltham v. England 453 e Felton V. Deal! 454 Fenemore v. The United States 259 Fenn v. Harrison 19, 69, 78, 97, 126, 131, 132, 133, 253, 279 Ferguson v. Carrington 250, 269, 390 V. Hamilton 228 Fetter v. Field 148 Fillis V. Brutton 139 Filor V. United States 11 Filter v. The Commonwealth 449 Findley K.Breedlove 174, 250 Finney v. Bedford Com. Ins. Co. 161 Fisher v. Ellis 160 a, 269, 893, 394, 899 Fisher v. Willard 239 Fisher's Appeal 211 Fishmonger's Co. v. Robertson 63 Fisk V. Barber 211 V. Offit 60 Fiske ?). Eldridge .164,276 Fitchett V. Adams 246, 266 Fitzherbert v. Mather 127, 134, 140 Fitzherbert's case 11 Fitzpatrick ». New Albany Rail- road 453 ff V. School Commissioners 263 Fitzsimmons v. Joslin 126, 139, 266 Flecknel v. Bank of U. States 52, 63, 114 Fletcher v. Gillespie V. Harcott V. Walker 422, 450 308, 339 205, 208 Flint V. Clinton 52 • V. Clinton Co. & Trust. 149 V. Gloucester Gas Light Co. 308 Flower V, Adam 454, 455 Fogg V. Virgin 276 Folger V. Chase 114 Fomin v. Oswell 222 Foot V. Wiswall 308, 316, 317 Ford V. Williams 160 Forrestier w. Bordman 60, 85, 110, 141, 200, 201, 208, 237, 253, 255 Forster u. Fuller Forsyth v. Day Fortitude (The Ship) Foster v. Essex Bank V. Green V. Hoyt V. Preston 280 91, 147 116, 122 116, 308, 368 453 • 365, 379 201, 217 a Fowle V. Common Council of Alexandria 808 V. Stevenson 256 Fowler v. Bledsoe 58 V. Shearer 148, 149 Fox V. Drake 278, 302, 304, 306, 306 V. Frith ■ V. Sandford Foxcroft V. Devonshire Foxwist V. Tremaine Frankfort Bank v. Johnson Franklin Bank v. Steward Franklin v. Ezell V. Lamond Freeman v. Boynton V. East India Co. V. Lodor Fremont v. United States French v. Backhouse V. Otis V. Price ■ V. Reed Frieze v. Wray 161, 162 4:63 d 377 6 114, 115 115 69 27 247 117 28 239 35, 111 305, 306 44, 449 190 360 INDEX TO CASES CITED. SXl Frixione v. Tagliaferro 239, 389 Frontin v. Small 148, 149, 274 a Frothingham v. Everton 74 V. Haley 244 Frye v. Lockwood 300, 301, 307 Fuller V. Bennett 140 V. Hooper 160 a, 269 V. Voght 455 V. Wilson 134, 139 Fulton Bank of N. York v. N. York and .Sharon Canal Co. 140, 140 a, 140 6 Furnivall v. Coombes 286 a G. Gage V. Allison 489 Gainsford v. Dutillet 361, 367 Gall V. Comber 33, 215 V. Tappan 488 V. Wells 28 Gait V. Gallalway 488 Gardner v. Bailey 64 V. Gardner _ 51 V. Lachlan 161 V. McCutchan 123 a, 334 a V. Norman 6 V. Ogden 211 Garland, Inhabitants of, v. Rey- nolds 160 a, 269, 393, 394, 395 Garnham v. Bennett 297 Garrett v. Handley 160 a, 272 Garth v. Howard 138 Gaussen v. Morton 477 General Int. Ins. Co. v. Buggies 118, 119, 121 George v. Claggett 390, 404, 419, 444 Gerard v. Baker 98 Gerbier v. Emery 60 Ghent ». Adams 802 Gibson V. Colt 69, 73, 131 V. Winter 420, 430 Gidley v. Lord Palmerston 805 Gilbey v. Copley 395 Giles V. Perkins 228, 380 Gill V. Brown 306 Gillenwatert). Madison Railroad 463 g Gillett V. Offor 266, 267, 268 V. Peppercorne 210 Gilley V. Logan 200 Gillig V. Lake Bigler R. R. Co. 154 Gillis V. Bailey 13, 14 Gilman v. Brown 362, 362 Gilmoreu. Pope 269, 395, 396 Gilshannon v. Stony Brook R. R. 453 e, 453 g Giralomo (The Ship) 456 a Girard v. Taggard Gladstone u. Birley 27, 401, 403 352, 854, 355, 356 Gleason v. Dodd 488 Glynn v. Baker 225 Godfrey v. Furzo 229 V. Saunders 44, 232 Godin V. London Assur. Co. 876 Goffu. Great Northern Railway 462, 456 Gonzales v. Sladen 290 Goodale v. Wheeler 68 Goodbaylie's case 263 Goodenow v. Tyler 60 Goodland v. Blewith 103 a, 451 Goodlow V. City of Cincinnati 808 Goodman v. Harvey 228 V. Kennell 456 Goodson V. Brooks 68, 99, 109 Goodtitle v. Woodward . 245, 246 Goodwin V. Union Screw Co. 52 Goom V. Aflalo 28, 30 V. Buchanan 170 Gordon v. Bulkley 48, 49 Goslin V. Birnie 217 Goswell V. Dunkley 14, 201, 202, 217 a Gould V. Norfolk Lead Co. 77 Goupy V. Harden 167, 269, 279 Gov. & Co. of Plate Manufact- urers V. Meredith 820 Grafton Bank v. Flanders 264 a Graham v. Acroyd 112 V. Dyster 113 V. Mussen 270 V. Schmidt 134 V. Stamper 263 Gram v. Seton 49, 242 Grammar v. Nixon 810, 453 Grant v. Fletcher 28 V. Ludlow 76, 95, 217 c 0. Norway 119, 461 V. Vaughan 228 Gratitudine (The Ship) 116, 118, 141, 164, 237 Graves v. Key 90, 91 Gray v. Murray 14 V. Portland Bank 308 Greely v. Bartlett 60, 110, 842 Green v. Bartlett 329 Green v. Farmer 350, 362, 364, 356, 871 V. Goddard 339 V. Haskell 211 V. Kopke 268, 290 V. London Omnibus Co. 308 V. Miller 42 V. Munamara 466 i). Winter 211 XXll INDEX TO CASES CITED. Greene v. Haskell 205, 229 Greenleaf u. Moody 237 Gregg V. Robbins 116 Gregory v. Parker 138 Griffith V. Ingledew 394, 395 Griffiths V. Ginlow '453 h Grindley v. Barker 42 Grissell v. Bristowe 110 Grojan v. Wade 418, 420 Grove ». Dubois 33, 336 V. Hodges 242 Guernsey v. Burns 394 Guerreiro v. Peile 78, 113, 127 Gunn V. Cantine 269, 391 Gunnis v. Exhart 107, 137 Guthrie v. Armstrong 42 H. Haas V. Damon 203 Hagedorn v. Oliverson '242, 248, 418 Haight V. Sahler 261 Haile v. Smith 111, 274, 361 Haines v. Busk 330 Halbertly v. Ward 451 Hall V. Bainbridge 148, 149, 151, 160, 161, 276, 278, 422, 450 V. Huntoon 263 V. Mayor, &c. of Swansea 52, 63 — ^ V. Smith 111, 308, 320, 321 V. Sprigg 281 Hallett V. Barsfield 861 Hallowell & Augusta Bank v. Hamlin 140 a Ham V. Boody 259 Hammarskald v. Bull 302, 306 Hammon v. Cottle 202, 208 Hammond v. Barclay 352, 376, 377 V. Holiday ' 329 Hamond v. Holiday 381, 338 Hampton v. Matthews 78, 92 V. Speckenagle 264 a, 265 Haney v. Donelly 186 Hanford v. MoNair 49, 242, 252, 394, 422 Hannay v. Stewart 136, 137 Hanson v. Roberdeau 267 Hapgood V. Batcheller 342 Hardman v. Wilcoek 217 Hargreaves v. Rothwell 140 Harlow v. Humiston 453 Harman v. Anderson 217 Harper v. Charlesworth 63 V. Hampton 147, 148 V. Little 264 a, 488 Harris v. Baker 321, 454 c Harris v. Miner V. Nicholas V. Mobry Harrison v. Jackson Hart V. F. & M. Bank V. Ten Eyok Hartley v. Hitchcock Hartop, ex parte Hartshorn v. Wright Harvey v. French V. Turner Hasleman v. Young Hastelow v. Jackson Hastings'!). Lovering Hatch V. Burr U.Taylor 256 456 462 49, 125 443 882 370, 371 261, 263, 267 289 269 208, 217 c 125 235 165, 266 277 126 104 Hatfield v. Reynolds Haverhill Mutual Fire Ins. Co. V. Newhall 154, 276 Hawes v. Martin 386 V. Watson 217 Hawtayne v. Bourne 21, 22, 69, 87, 119 a Hay V. Cohoes Co. 808, 810 V. Goldsmidt 21, 62 Hayden v. Smithville Manufactur- ing Co. ■ 453 h Hayes ». The Western R. Corp. 453 e, 453^ Hayford v. Andrews 49 Hays V. Lynn 78, 99, 160 a, 270 Hazard v. Treadwell ' 56, 470 Hazeltine u. Miller 68, 77 Heald v. Kenworthy 446, 449 Heane v. Keene 100 V. Rogers 90, 91 Heard v. Lodge 44 V. March 42 Hearsay v. Pruyn 299, 800 Heath v. Wilson 456 Hefferman v. Addams 65, 147 Helyear v. Hawke 58, 69, 73, 102, 132, 183, 185, 187 Henback v. MoUman 157, 269 Henderson v. Barnwell 18, 27, 28, 29, 30, 81, 109, 146, 249 V. The Australian Royal Mail Steam Nav. Co. 55 Henn v. Conisby 98 Hern v. Nichols 310, 452, 453 a Hervey v. Liddard 361 Hey man v. Neale 28 Heywood, ex paHe 253 Heywood v. Waring 861 V. Watson 380 Hibblewhitei). McMorine 49,-61, 238, 242 Hickcock V. Plattsburgh 464 a Hicks ». Hankin 28, 69,. 73, 129 INDEX TO CASES CITED. XXUI Hicks V. Whitmore Hiern v. Mill Higgins V. Delinger V. Livingston V. Moore 160 a, 420 140, 141 270 288, 284 68, 98, 109 V. Senior 28, 50, 147, 155, 160 a, 161, 162, 266, 268, 269, 270, 392, 396, 446 Hill V. Packard 339 V. Williams 326 Hilliard v. Richardson ' 454 Hills V. Bannister 154, 276, 278, 280 V. Featherstonhaugh 331 V. Ross 313 Hinckley v. Arey 28, 31 Hinde v. WMtehouse 27, 28 Hinds V. Stone 896 Hipp V. The State 317, 318 Hiscox B. Greenwood 360 Hoare v. Dawes 38 Hodge V. Coombs 68 Hodges V. Runyan 308 Hodgson V. Anderson 465, 466, 477 V. Dexter 302, 303 Hoel V. Storrs 98 Hogg V. Snaith ' 63, 76 Holbrook V. Wight 33, 34, 111, 217, 274, 374 Holcroft V. Halbert . 116 Holderness u. Collinson 354, 384 Hollu. Griffin 217 Holland v. Hall 344 Holland's Assignees v. Hmnble's Assignees 352, 361 HoUis V. Caridge 388 Holly V. Huggeford 372 Holman v. Johnson 195, 344 Holmes v. Onion 453 Holt V. Ely 398 Homersham v. Wolverhampton Water Works Co. 55 Hood V. Tahnestock 140 Hopkins v. Lacouture 160 a, 162, 163 269, 270, 271, 292 «. MehafFey 154, 166, 269, 264 a, 273, 277, 278, 394 V. MoUineaux 7, 244 Hornblower v. Proud 228 Horner v. 111. Central R. R. 453 e Hoskins v. Johnson 68, 102 V. Slayton 285, 299 Hosmer «. Beebe 200 Horn V. Ivy 53 Horsfall v. Fauntleroy 243, 291 Horsley v. Bell 239, 282 .». Rush 49 Horquebie v. Gerard 229 Horton v. Towns 253 Houghtaling v. Marvin 488 Houghton V. Mathews 60, 289, 290, 854, 865, 368, 369, 376, 389, 401, 407 Housatonic, &c. Bank v. Martiii 140 a Houston V. Robertson 488 Hovey v. Blakeman 329 B. Blanchard 140 Hovil B. Pack 250, 269, 390 B. Warden 379 Howard v. Baillie 21, 68, 64, 97, 101, 166 V. Braithwaite 107, 126, 127, 187 — B. Sheward 60 B.' Tucker 336 Howe B. Buffalo, N. Y. & Erie R. R. Co. 339 Howell u. Ransom 212 Hoyt B. Thompson 13 Hubbard b. Elmer 67, 68, 134, 137 Hubberty u. Ward 119 Huber b. Zimmerman 58 Hudson B. Granger 376, 893, 896, 401, 407, 408, 486 B. Revett 49 Hughes B. Boyer 453, 463 a, 464, 456 Huguenin B. Baseley 210 Hull B. County of Marshall 807 a Humble b. Hunter 406 Humphrey B. Pratt 339 Hunt B. Haskell 378 V. Mani^re 217 «. Rousmaniere's Adm'r 150, 164, 477, 481, 488, 489 Hunter b. Giddings 147 B. Jameson 59 B. Miller 163 V. Parker 49, 238, 242 B. Prinseps 269, 438 Hunter v. The Hudson Riv. Iron Co. 461 ■0. The State 462 Huntington v. Knox 160 a, 161, 410 Hurlbert v. Pacific Ins. Co. 390, 444 Hurlbut B. Kneeland 126 Hurst B. Holding 833, 384 Hussey b. Allen 116, 297 B. Christie 294, 297, 299 Hutchins B. Brackett 819 a B. Byrnes 62 Hutchinson v. Stevens , 24 B. York, Newcastle, and Berwick Railway 468. e, 453 g Hutson B. Cantril 488 B. Revett 49 Hutton B. Bragg 362 a Hyde B. Paige 449 B.' Wolff 160, a, 162, 266, 270, 288, 291, 292, 294, 296 XXIV INDEX TO CASES CITED. I. Elidge V. Goodwin 453 Illinois (State of) v. Delafield 78 Ilsley «. Merriam 419 Inchbald v. Neilgherry 329 IngersoU v. Van Bokkelin 161 Inglis, ex parte 228 Ingram v. Ingram 13 Inhab. of First Parish in Sutton V. Cole 42 Inhab. of Garland v. Reynolds 160 a Irish V. Barber 269 ■ V. Webster 269, 302, 395, 896 Ish V. Crane Ives V. Ashley V. Davenport v. Hulet Iveson V. Conington 161, 495 211 60 . 307 a 165, 268, 269 ■2Td, 393 J. Jackson v. Baker V. Clarke V. Cummins Jacobs V. Latour V. Pollard James v. McCready V. Bixby James, ex parte Jannen v. Green Jaques v. Todd Jarvis v. Rogers Jeffrey v. Bigelow Jefts V. York Jenkins v. Hutchinson ■ V. Kemishe 179, 204 a 226, 229, 231, 259, 360, 365 862 367 389 60 116, 119, 161, 266, 294, 296, 297, 299 210, 211 28 431 356, 860, 362, 365, 367, 876, 882 133, 217 c 264 a, 278 264 a 167 Jennings u. Griffith 444 Jewett v. Alton 42 Joel V. Morrison 466 Johns V. Simonds 119 a Johnson v. Barber 462 V. Catliu 394, 395 V. Cleaves 449 V. Common Council 306 V. Cunningham 14 V. Jones 19, 181, 268, 256 «. McGruder 68 V. New York Central Railroad • V. Ogilby ■ V. O'llara - V. Roberts ■ V. Small 192 261, 263, 264 179, 204 a 27 463 Johnson v. Usborne V. Weed V. Wingate Jolly u. Blanchard Jones V. Bird V. Downman V. Edney V. Parley V. Hart V. Hoyt V. La Tombe V. Littledale 267, 269 V. Pearl V. Phipps V. Warner Jordan v. James V. Norton Joseph V. Knox Josephs V. Pebrer Jourdaine v. Lefevre Judith (The Vrow) Judson V. Etheridge V. Sturges 112 431 87, 118 872 820, 821 264 187 78, 99 451, 458 838 302 27, 160 a, 266, 270, 298, 446 870 147 87 34 126 894, 897, 414 380, 344 228, 380 36 362 85 K. Kain v. Old 137 Kean v. Davis 63, 154 Keane v. Boycott 6 Keegan v. The Western Railway Corp. Keen v. Sprague Kelley v. Lindsey Kelly V. Munson J). New York V. Smith 463 e, 453 h -'66 21 242, 269 454 a 113 Kelner v. Baxter Kemble v. Atkins Kemp V. Pry or Kemys v. Proctor Kendall (Postmaster-General) v. United States Kendray v. Plodgson Kendrick v. Delafield Kennaway v. Treleavan Kennedy v. Gouveia 154, 165 Kent V. Bornstein V. Tyson Ken worthy v. Bate Kenyon v. Williams Kerns v. Piper Kervis v. Piper Kidson v. Dilworth Kieran v. Sanders Kilgour V. Finlyson Kimball «. Tucker 264 28 143 27 305 276, 278 86 58 158, 278, 278 78, 393 55 67 160 a 87, 92, 442 456 167, 159 217 21, 69 460 INDEX TO CASES CITED. XXV Kinder v. Shaw 78 King (The) v. Beeston 42 King V. Boston & Worcester R. R. 468 e, 458 h ■ V. Longnor 51 V. Thorn 280 Kingston v. Kincaid 198, 255 Kinlock V. Craig 361, 877 Kirk ». Hyatt 68 a Kirkman v. Shawcross 852 Kirkpatrick v. Stainer 268, 269, 400 Kirmitz ». Surrey 31 Kirton v. Braithwaite 103 a Knapp V. Alvord 374, 477, 489 a Knight V. Fox 454, 454 c V. Lord Plymouth 202 Knipe V. Jesson 343 Knox V. Hack 6 Kock V. Emmerling 329 Kortwright v. Buffalo Bank 68 Kmger v. Wilcox 867, 876 Krumbhaar v. Ludeling 261 Kupfer V. Inhab. of So. Parish in Augusta 42 Kymer v. Suwercropp 266, 446, 448, 449 L. Lacey, ex parte 210, 211 Ladd V. Chotard 474 La Farge v. Kneeland 189, 261 V. Ripley 261 Lafferty v. Jelley 207 Lagow V. Patterson . 68 a Lambert v. Knott 286 Lamprell v. Billericay Union 65 Lanchester v. Tricker 283, 285 Lane v. Cotton 201, 808, 810, 311, 314, 319, 462 V. Dighton 229, 280 Lang V. Smyth 228 Langhorne v. Alnutt 187 Langley v. Warner 300, 301 Langton v. Hughes 235, 346 V. Waite 192 Lanyon v. Blanchard 860, 389, 390 La Point V. Scott ■ 21 Lathrop «. Blake 68 '■ V. Harlow 170 Laugher V. Pointer 452, 463 a, 453 6, 463 c, 454, 454 c, 466 Laussatt v. Lippincott 14, 60, 78, 118, 227 Law V. Cross 182, 256 Lawler v. Keaquick 86, 141, 183 Lawrence v. Gibhard 69 V. McArter 6 Lawrence v. Tucker 140 Laying v. Stewart 264 Lazarus v. Shearer 164, 264 a Leach v. Blad 276 Leadbitter v. Farrow 153, 165, 156, 167, 269 Leader v. Moxon 820, 321 Leave v. Prentice 183 Le Breton v. Peiroe 229 Ledbetter v. Walker 49 Lee V. Adsit 111 V. Munroe 133, 184, 807 V. Tinges 78 Leed's Bank 228 Leeds v. Marine Ins. Co. 396, 397, 398, 404 Lees V. Nuttall 211 LeFevre v. Lloyd 155, 166, 167, 269 Legal V. Miller 50 Legg V. Evans 361 Leggett V. Simmons 452 LeG-uen v. Gouverneur 189, 236 Lempriere v. Pasley 360, 361, 377, 878 Lench v. Lench 229, 230, 242 Le Neve v. Le Neve 140 Lennard v. Robinson 269 Lent V. Padelford 244 Le Roy V. Beard 58 Leonard v. Huntington 297 Lepard v. Vernon 477, 488 Lerned v. Johns 160 a Lesher v. Wabash Nav. Co. 454 c Leslie v. Pounds 454, 456 V. Wilson 161 Leverick v. Meigs 188, 186, 200, 204, 215, 401, 420 Levy V. Bank of U. States 116 V. Yates 347 Lewis V. Kerr 488 ; u. Nicholson 264 a ' ■ V. Sawyer 465 Lickbarrow v. Mason 119, 352 Lime Bock Bank v. Plimpton 390, 404, 444 Lincoln v. Battelle 388, 481 Lindus v. Bradwell 147, 154, 160 a, 270 Linsley v. Lovely 462 Linton v. Smith 454 Liotard v. Graves 141, 388 Lipscombe v. Kitsill 102 Lissett V. Reeve 270 Little V. Obrien 394 Littledale v. Lonsdale 464, 464 c, 465 Littlejohn v. Ramsay 200 Little 'Miami Railroad i;. Stevens 463 g Little Rock, Mayor and Aldermen of, V. State Bank 165 Lloyd V. Mayor of New York 308 XXVI INDEX TO CASES CITED. Lobdell V. Baker 131, 133, 134, 137 Locke V. Alexander 264 a V. Stearns 127, 452 Lockwood V. Abdy 201 V. Levick 329 Lombard v. Winslow 68 London and Birmingham Railway- Co. V. Winter 52, 53 London Gas Light and Coke Co. V. MchoUs . 53 Long V. Colburn 46, 154, 258, 264, 264 a V. Long 67 Longworth v. Conwell 73 Loraine v. Cartwright 74, 253 Lord North's case 201, Loudon Sav. Society v. Hagers- town Bank 17 Louisiana State Bank v. Senecal 140 a, ' 140 6 Lovelace's (Lord) case 51 Low V. Perkins 42 Lowell V. Boston and Lowell R. R. 454, 454 c Lowther v. Kelly 396 B. Lowther 210, 511 Luby V. Hudson River Railroad 135 Lucas V. Barrett 251 V. Dorrien 360, 361, §81 V. Groning 74, 75, 199, 215, 269 Lucenaj). Crawford S3, 111, 161, 190, 242 Lucey v. Ingram 456, 456 a Ludlow (Mayor, &c. of,) v. Charlton 62, 53 Lupton V. White 206, 295, 332, 333 Luttrell V. Hazen 465 Lutz V. Linthioum ' 148, 150 Lym V. Adamson 307 a Lyman v. Sherwood 154 Lynch v. Postlethwaite 146, 147 Lynes v. Martin 456 Lynn v. Burgoyne 13 Lyon V. Williams 267 M. Maans v. Henderson 360, 365, 879, 389 Mabar v. Massias 167, 373 Macbeath v. Haldimand 75, 88, 199, 278, 302, 303, 806 Macdonnell v. Harding 208, 302 Macfarlane v. Giannacopulo 449 MacGregor v. Gardner 477 Mackinley v. McGregor 7 Maclean v. Douglass 6 V. Dun 244, 418, 440, 445 Madden v. Kempster 860 Madeira v. Townsley 182, 183 Magee v. Atkinson 269, 270 Mahonejr v. Kekule 268, 268 a Mainwaring v. Brandon 201, 202 Mair ». Glennie 361 Mallough V. Barber 191, 200, 218 Manella v. Barry 81, 192 Mann v. Chandler 154, 275, 276 V. Forrester 379, 890, 429 V. Shiffiier 113, 360, 367, 376, 388, 389 Marcadier v. Chesap. Ins. Co. 116 Marchington v. Vernon 896 Many v. Beekman Iron Co. 154 Marder v. Lee 485 Mare v. Charles 159 Marfield v. Douglas 34, 74, 192, 477 Maria (The Ship) 456, 456 a Marine Bank v. Fulton Bank 210 Mark v. Bowers 14, 15, 113 Marlett v. Martel 274 Marquand v. Webb 297, 299 Marr v. Plummer 244 Marsh «. Pedder 481,432,433,449 Martin v. Almond 163 V. Blithman 808 V. Flowers 148 «. Lemon 42 V. Temperley 458 h, 463 c, 454 a, 456, 466 a Martini v. Coles 78, 111, 113, 164, 227, 867 Martyn v. Hinde 396 Marzetti v. Williams 217 c, 222 Marzion v. Pioohe 489 Massey v. Banner 96, 200, 208, 302 V. Davis 9, 192, 207, 213, 214 V. Scott 153 Masters u. Abraham 137 Mathes, ex parte 346 Matson u. Booth 49 Matthews v. Haydon 98, 451 Mauri v. Heffernan . 261, 266 May V. Bliss 455 — V. Mitcbell 77 Maydew v. Forrester 191 Mayhew v. Fames 140 d V. Prince , 166, 264 a, 269 Mayor, &c. v. Reynolds 63 Mayor, &c. of Little u. State Bank 63 Mayor, &c. of London v. Goree 63 Mayor, &c. of Ludlow ». Charl- ton 62, 63 Mayor, &c. of Stafford v. Till 63 Mayor, &c. of Thetford's case 63 Max V. Roberts 218 MoClellan v. Parker 266 McComb V. Wright 27 INDEX TO CASES CITED. XXVIl McCombie v. Davis 113, 312, 360, 366, 367, 389, 437 McOonnell v. Thomas 394 MoCracken v. San Francisco 289 McCulloch V. McKee 99 V. The Eagle Ins. Co. 493 McDaniel v. Emanuel 4.53 e McDermott v. Pacific Railroad 463 e McDonald v. Bear River Co. 161 MoGatrick ». Wason 253 h McGavock u. Woodlief 329 McGillivray v. Simpson 362 McHenry v. Ridgely 394 Mcintosh V. Slade 466 a Mclver v. Humble 444 McKenzie v. Scott 215 McKinnell v. Robinson 235, 346 Mcffinstry v. Pearsall 60 McLaughlin v. Prior 453 a McManus v. Crickett 463, 464, 456 McMillan v. Eastman 314, 319 a V. The Saratoga, &c. Wash. R. Co. 453 h McNaughten v. Partridge 49, 148, 149, 163, 242, 262 Mead v. Hammond 461 Mears v. Morrison 147, 148, 163 Mechanics' Bank of Alexandria V. Bank of Columbia 63, 77, 114, 154, 270 Mechanics' Bank v. Merchants' Bank 183 Mechanics' Bank v. N. Y. & N. H. R. Co. 49 Medina v. Stoughton 308 Medway Cotton Manuf. Co. v. Adams 396, 396 Meech v. Smith 264, 264 a, 338 Menkens v. Watson 250 Merchants' Bank v. Central Bank 59 V. Marine Bank 115 Meriel v. Wymandsold 285 Merrick v. Barnard 217 a Merrick's Estate ' 490 Merrifield v. Parritt 242 Merryweather v. Nixon 308, 339 Mersey Docks v. Gibbs 319 Metcalf «. Clough 477 Meyer v. Barker 164, 168, 161, 261, 263, 273 V. Nios 362 Michael v. Alestree 464 c, 466 Michigan Ins. Co. v. Leavenworth 489 Middlebury v. Case 395 Middleton v. Fowler 464, 456 Milbank v. Dennistoun 193 Milburn v. Belloni 132 Miles V. O'Hara 157, 168, 159 Milldam Foundry v. Hovey 149 Miller v. Aris V. Edmonstone V. Ford V. Livingston V. Race 300, 301 63 a 302 326 228 MiUigan V. Wedge 201, 308, 452, 463 a, 453 6, 463 c, 464, 454 a, 464 c, 556 a Mills V. Hunt 27, 155, 266, 269, 270 Minard v. Mead 147, 160 a, 274 6 Minett v. Forrester Minor v. Mechanics' Bank of Alexandria Minter v. Pacific R. R. Miranda v. City Bank of New Orleans Mires v. Solebay Mitchell V. Cockburne V. Crassweller V. Fades V. St. Andrew's Bay Land 482 114 126 208 300 346 466 488 Co. 49 Moffat V. Parsons 103 a Moir V. Hopkins 456 Monte Allegre (The Ship) 107, 109 Montillat V. Bank of U. States 208 Moody V. Webster Mo^or V. Wilson Moore V. Clementson V. Hussey ». Morgue Moorsom v. Kymar Morgan v. Cader V. Lewis V. Stell 379 264 a 227, 270 242 96, 191 160, 274 266 332 470, 474 V. Vale of Neath Railway Co. 463 e Morell u. Frith 199 Morley v. Gaisford 453 Morris v. Cleasby 33, 93, 112, 161, 215, 403, 407, 411, 413, 429, 430, 444 V. Summer! Ill, 190, 218 Morse v. Conn. River Railroad 134 V. RoyaU 210 V. Slue 308, 309, 310, 816, 453 Morsell v. Frith 63, 75 Mortlock V. Buller 50 Mott V. Hicks 58, 164, 159, 269, 276, 302, 306 68 381 300, 301 160 a, 270, 296, 297, 431, 434 MuUer v. Bohlens 215 Munn V. Commission Ins. Co. 72, 73, 126, 131, 133 V. Smith Mountfort v. Scott Mowatt V. MoLellan Muldon V. Whitelock XXVlll INDEX TO CASES CITED. Murray v. East India Co. V. South Car E. Co. V. Toland V. Vanderbilt Myler v. Fitzpatrick Mynn v. JoUifFe Myrtle v. Beaver N. 62, 53, 62; 63, 67 4:5?, e, 4:53 g 15 235 203, 217 a ■ 102, 108 306 National Bank v. Norton 140 a, 140 6 National Exchange Co. v. Drew 126 Nealw. Sheaffield 49 Neilson v. Harford Nelson v. Cowing ■ V. Powell 63 69 160 a 297, 298 463, 456 a 192 383 113 250 68 Nelson (The Ship) Neptune 2d, (The Ship) Nesbit V. Burry Nesbitt, ex parte Newbold v. Wright Newell V. Hurlbert New England Fire and M. Ins. Co. I'. Schettler New England Marine Ins. Co. B. De Wolf 138, 147, 148, 154, 160, 160 a, 264 a Newhall v. Dunlap 156, 269 New Orleans, &e. R. Co. v. All- britton 463 Newsome v. Thornton 60, 78, 225 New York & Wash. Print Tel. Co. V. Dryburg New York Central Ins. Co. v. Nat. Prot. Ins. Co. New York Life & Trust Co. v. Beebe New York, &c. Telegraph Co. V. Dryburg NichoUs V. Diamond Nichols V. Clent V. House • V. Moody 308 211 134 Nicholson v. Knowles V. Mounsey • V. Willan Nickson «. Brohan Nind V. Marshall, Nixon V. Hyserott V. Palmer Norris v. Cook Northampton Bank v. Parson — V. Pepoon 52 159 877 185 302 215, 217 313, 315, 316, 321, 322, 454 188 56, 59 58 69, 165 72, 243 265, 258 114 264 a North River Bank v. Aymar 69, 72, 73, 127, 134, 137, 140 a, 140 b', 166 Norton v. Herron 155, 269, 275, 278 Nowell i;. Pratt _ 113 Noyes v. Rutland & Burlington Railroad 253 h V. Smith 453 h O. Oakley v. Crenshaw Odiorne v. Maxcy Oelrioks v. Ford Offley V. Ward Ogden V. Gillingham V. Raymond Ogilvie V. Foljambie Ogle V. Atkinson V. Barnes Oglesby v. Yglesias Olcott V. Tioga R. R. Co. Oliphant v. McNair Olive V. Smith Oom V. Bruce Ormond v. Holland Osborne v. Bank of U. States 342 87, 239, 253 268 394, 395 482 302 107, 137 216, 360 456 268 a 164 75 876, 379 398 253 e 52 V. Kerr 279, 302, 303, 306 Overton v. Freeman 454, 454 6, 454 c Owen V. Barrow 104 V. Gooch 261, 263, 266, 288 V. Van Uster 159 Owenson v. Morse 363, 367 Owings V. Hull 86, 243 Owsley V. Woolhopter 266 P. Pack V. Mayor of New York 454 a Packard v. Nye 276 Packet (The Ship) 118, 871, 372 Paige V. Stone ' 77, 266, 267 Paine v. Strand Union 55 Palethorpe v. Furnish 7, 138 Palmer v. Stevens 251, 264 Palmerton v. Huxford 263 Park V. Hammond 183, 191, 200, 218 Parker v. Branoker 74, 274, 371 V. Carter 379 V. Donaldson 266 V. James 218 V. Kett 17, 147, 148, 149, 162 V. Smith _ 482 V. Winslow 164, 263 Parkhurst t). Alexander 210,211 Parkitt v. Imlay 86 Parks V. Ross 302 INDEX TO CASES CITED. XXIX Parnther v. Gaitskell 98 Parr, ex parte 228 ParroU v. Eyre 284, 287 V. Wells 264 Parsons, ex paiie 202 V. Thompson 330 V. Webb 78 V. Winchell 454 c Passmore v. Moot i 154 Patersonw. Gandasequi 261. 266, 267, 268, 270, 288, 289, 290, 291, 293, 423, 446 V. Tash , 78 V. Wallace 453 h Patten- v. Kea 453 Patterson v. Moore 63 Pawlet V. Kutland & WasB. Rail- road 454, 455 Payne v. Potter 58 V. Rogers 464, 456 Peacock v. Rhodes 228 Peaohey v. Rowland 454, 454 6, 454 c Pearce v. Roberts 360 Pearson v. Skelton 339 Pease, ex parte 228 Peck v. Harriott 58, 98 Peele v. Northcote 33, 216 Peisch V. Dickson 342, 377, 385 Pemberton, ex parte 383 Penhallow u. EHoane 300 Penn. &o. Steam Navig. Co. u. Dandridge 263 V. Hungerford 452 ■ Pentz «. Stanton 147, 164, 165, 160 a, 266, 269, 391, 431 People V. Balchelor 42 V. Overyssel 211 Percival v. Frampton 880 Perderson v. Lotinga 268 a Perez v. Miranda 141 Perkins v. Smith 308, 309, 311, 312 U.Washington Ins. Go. 73,264:a Perrotin v. Ciiculla 103 Perry v. Marsh 453 h Peters v. Ballestier 73, 121, 269 V. Farnsworth 59 Peterson v. Ayre 268 Peto V. Hague 135 Petrie v. Hannay 235, 346, 347 Pettingell v. McGregor 264 a Peyroux v. Howard 36::i a Phelps V. Prothero 160 a V. Wait 462 Phila. Rail. Co. v. Derby 462 Phillips V. Briggs 308 Pickard v. Sears 90, 91 Pickering v. Bush 34, 56, 73, 78, 93, 94, 126, 131, 132, 133, 164, 227, 437, 444 Pickering v. Dowson V. Holt V. Pickering Pickett V. Pearsons 116, 64, 137 161 7 255 a 28 307 a 369 366 269, 394, 395 362 203, 217 a 264 24 256 239 Picks V. Hankin Pierce v. United States Piers on v. Dunlop Piesch V. Dickenson Pigott V. Thompson Pinnock v. Harrison Pinto V. Santos Pitman v. Kiatner Pitt V. Holden Pitts V. Shubert Pittsburg Railroad v. Gazzam Planche v. Fletcher 196, 343 Plate Glass Co. v. Meredith 321 Ploraer v. Hockhead 6 Poillon !).. Martin 210, 212 PolhiU V. Walter 264, 264 a, 265 a Pope V. Barrett 204, 221 Port V. The United States 107 Porter v. Bank of Rutland 140 a V. Nekervis 394 V. Talcott 160 a, 270, 296, 431, 449 Pothonier v. Dawson Pott V. Turner Potts V. Rider Poulton V. London Railw. Co. Powell V. Duff V. Edmunds V. Nelson 371 28 394 & S. W. 452, 456 49 107, 137 429 V. Trustees of Newburgh 339 Power V. Butcher 191, 432, 435 453 a 160 a 239 99 446 443 7 206, 214 329 308, 453 d, 463 e, 453 g 296 488 239, 258 174 208 Protector (The Ship) 456 a Proudfoot V. Montefiore 139 Provost V. Patchin 116 Puckett V. The United States 107 Pugsley V. Murray 31 Pultney v. Keymer 113 Purves V. Landell 24 Powles ». Hider Prather v. Ross Pratt V. Putnam V. United States Precious v. Abell President, &c. ». Cornen Prestwick v. Marshall Prevost V. Gratz Prickett v. Badger Priestly v. Fowler V. Fernie Primm v. Stewart Prince v. Clarke Prindley v. Breedlove Pritchard v. Louisiana State Bank XXX INDEX TO CASES CITED. Purviance v. Angus 314, 315 Puttock V. Ware 98 Pyle V. Cravens 6 Q. Quarmani). Burnett 201, 308, 313, 452, 453, 453 a, 453 6, 453 c, 454 c, 455 Quebec Railroad u. Quin 14 Quieroz v. Trueman 113 R. Rabassa u. Orleans Navigation Co. 808 Rabone v. Williams 890, 404, 419 Railroad Co. v. Wilt 463 Railton V. Hodgson 270, 291, 446 V. Peele 270 Ralston v. Barclay 190 Ramozotti v. Browning 54 Ramsay v. Gardner 336, 339 Ramsden v. Dyson 58 Randall v. Chesapeake & Del. Canal Co. 134 V. Trimen 264, 265 a V. Van Vechten 49, 164, 160, 161, 273, 276 Randleson v. Murray 308, 462, 453, 463 6, 454, 464 a, 454 c Randolph v. Ware 111 Ranger v. Great Western Rail. Co. 126 Ranken v. Deforest 289 Rann v. Hughes 47 Rapson e. Cubitt 201, 308, 313, 462, 453, 453 6, 463 c, 454 a, 454 c Rathbone v. Budlong . 261, 302 v. Tucker 291 Kawsen t). Curtis 49 Raymond ti. Crown & Eagle Mills 266 Eayner v. Grote 396, 406, 446 Read ». Rann 329 Ready v. Bragg 7 Reano v. Magee 60, 199 Reed v. Conway 302 V. Norris 211 v. Rann 329 V. Van Ostrand 40, 49 V. Warner 211 V. White 296, 434 Reedie v. London & North West- ern Railway Co. 313, 453 a, 463 6, 454, 464 a, 454 c Rees V. Warwick 74 Reeves v. State Bank 462, 463 h Reid u. Van Rensselaer 204 Reignolds v. Davis Reitz V. Martin Renteria k. Ruding Rex V. Almon V. Bank of England ■». Bigg V. Goutch V. Lee 485 133 274 462 63 63 462 199 Reynolds v. Glasgow Academy 149 Rheinhold v. Dertzell 169 Rice V. Austin, 861, 371, 877 ». Chute 306 V. Gove 147, 154, 160 a, 264 a, 272 27.5 Rich V. Coe 294, 297, 298, 299,'446, 448 Richardson v. Anderson 68, 108, 109 -. M. Kimball 311 u. Weston 200 Richmond Manufacturing Co. v. Starks 253,_ 258, 259 Richmond S. Co. v. Vanderbilt 456 Riddle v. Locks and Canals on Merrimack River , 308 Ridgely v. Dobson 286, 287 Ridson V. Dilworth 269 Eight d. Fisher v. Cuthell 246 Rigs V. Cage 488 Riley v. Minor 49 Ringo !). Binns 211 Ripley v. Gelston 300, 301, 307 Risbourg v. Bruckner 290 River Clyde Trustees u. Duncan 98, 104 Robbins v. Butler 148, 156 V. Fennell 201 Roberts «. Button 164, 166, 264 a, 280 11. Dixall 67 V. Fonnereau 139 V. Jackson 326 V. Ogilby 217 v. Pierson 6 V. Smith 453 Ti Robertson v. Clarke 118 V. Livingston . 342 V. Pope 154 Robiunett u. The Ship Exeter 120 Robinson, ex parte ' 69 V. Fitchburg Railroad 134 V. Green 65 V. McDonnell 361 1). New York Ins. Co. 826 V. Rutter 27, 107, 897 Rochester (Dean, &c. of) v. Pierce 63 Rodriguez v. HeflFernan 113 Roe V. The Birkenhead &c. Rail. Co. 456 INDEX TO CASES CITED. XXXI Roe V. Davis 440 V. Dean of Rochester 52 V. Pierce 246 V. Prideaux 167 Rogers v. Coit 269, 446 a u. K.neeland68, 242,244,253, 339 Rollins V. Phelps 42 Rooth «. Wilson 414 Rosewell v. Prior 454 c Ross V. Houston 140 Rossiter v. Rossiter 65, 72, 73, 126, 131, 138, 251, 264 Rourke v. Story 73 Routh V. Thompson 242, 248, 418 Rowning v. Goodchild -805, 808, 314, 319 a, 319 6 Royall V. Sprinkle 136 Royer v. Allen 264 a Rucker v. Cammeyer 28 Ruggles V. Gen. Int. Ins. Co. 139 Rundle v. Moore 192 Runquist v. Ditchill • 73, 116 Rusby V. Sca4ett 56 Rushforth v. Hadfield 354, 382 Russell V. Bangley 98, 103, 109 V. Hankey 96, 202 V. Hudson River Railroad 453 e, 463 g Ryall V. RoUe 229 Ryan v. Cumberland Valley R. 453 e, 4535- S. gadler v. Henlock 454, 454 a, 454 c — V. Leigh 401, 403 Sadock V. Burton 199 Salem Bank v. Gloucester Bank 87, 116, 305, 308 Salomons v. Pender 214 Salte V. Field ' 470, 488 Salter v. Kingley 264 a, 395 Saltmarsh v. Smith 488 Sammel v. Wright 468 a Sampson i).- Somerset Iron Works 332 Sanders v. The Guardians of the St. Neot's Union 55 V. Powell 308 Sandford v. Handy 134 Sandilands v. Marsh 125, 126 Sargeant, ex parte 228 Sargent v. Morris 394, 396, 397 Saunderson v. Bell 362 ». Marr 6 V. Walker 210 Savage v. Birckhead 183, 217 c, 308, 348 V. Rix 17, 147, 154, 276 Savignac v. Roome 456 Savings Bank v. Davis 149 Sawyer v. Mayhew 333 Scaife v. Tobin 274, 274 a Scarborough v. Reynolds 99 Scarfe v. Morgan 853, 354, 856, 356, 362 Schack t>, Anthony 147, 160, 161, 894, 422 Schermerhom v. Loines 296, 431, 434 Schieffelin v. Harvey 308, 314, 316, 316 Schimmelpennick v. Bayard 72, 73, 81, 138 Schmaling v. Tomlinson 18, 201, 202, 387, 389 Schmalz v. Avery 406 Schroyer v. Lynch 319 a Schuohardt v. Allen 69 Scott V. Detroit Society 42 V. Franklin 228, 371, 880 V. Irving 98, 103, 109 V. Manchester 308, 321 V. McGrath 102 V. Rogers 192 V. Shepherd 456 V. Surman 60, 202, 229, 281 Scotthorn v. South Staffordshire R. Co. 465 Scrace v. Whittington 279 Scrimshire v. Alderton 407, 429 Scruggs V. Driver 488 Sea V. Carpenter 831 Seaman v. Fonnereau 139 Seaber v. Hawks 269 Searle v. Scovell 118 Seidell v. Peckworth 300 Seignor & Walmer's case 59, 132, 418, 421 Seiple V. Irwin 102 Seller v. Work 191 Seton V. Slade 108, 499, 500 Sewall V. Boston Water Power Co. 49 Seymour v. Greenwood 456 V. Maddox 463 e V. Pychlau 418, 421, 431, 432, 446, 448 — V. Van Slyck 314, 319 Shack V. Anthony 147, 394, 422 Shank, ex parte 865 Sharland v. Mildon 312 Sharp V. Emmet 166, 167, 269 V. Emmett 155 Shattuck V. Eastman 275 Shaw V. Arden 331 V. Nudd 50 V. Reed 453 V. Sherwood 895 V. Spencer 49 XXXll INDEX TO CASES CITED. Sheffield V. Watson 202, 802, 306 Sheldon v. Atlantic, &c. Ins. Co. 68 V. Drummond 140 V. Dunlap 147, 148 Shelton V. Darling 154, 269, 276 Shepherd v. Percy 210 Sheriff v. Axe 329 Sherman v. Rochester, &c. B,. Co. 453 e, 453 g Sherwood v. Roys 394 Shields V. Davis 116 Shipley v. Kymer 14, 78, 113, 367 Shipman v. Thompson 488, 489 Shirley v. Wilkinson 139 Short V. Skipwith 220, 221 V. Spackman 270 Shriver v. Stephens 69 Sickens v. Irving 121 Sifkin V. Wray 350 Sigourney v. Lloyd 228, 435 Simon V. Motivos 27 Simonds v. Clapp 75 — V. Heard 269, 276 Simpson v. Huggins 270 V. Lamb 329 V. Nichols 235 V. Swan 123, 183, 269 Sims V. Bond 270, 896 ■ V. Britain 270 Skinner v. Dayton 49, 242 ■ V. Gunn 59, 148 Skip V. Eastern Co.'s Rail. Co. 453 e Slawson v. Loring 147, 160 a Small V. Atwood 160, 160 a, 418, 420 Smart v. Sanders 74, 371, 477 Smith V. Birmingham Gas Co. 52, 53, 808 • V. Cologan 96, 194, 243, 249, 250 «. Condry 217 c, 220, 221, 466 a — ;: V. East India Co. 78, 74, 104, 126 ~ V. Ferrand 431 V. Hodson 250, 259 V. Lansing 211 . V. Lascelles ' 111, 190, 218 V. McGuire 72, 73, 119 V. Oxenden 848 V. Plummer 366 V. Rice 499 V. Tracy 132 V. White 490 Smout V. Ilberry 264, 265 a, 488, 495, 498, 499 Smyth V. Anderson 268, 449 V. Craig 477 Suee V. Prescott 161, 350 Snook V. Davidson 879, 388, 389, 391 133 300 244, 249, 445 116 42 228 58 Snow V. Perry Snowdon v. Davis Soames v. Spencer Scares v. Thornton Soens V. Racine Sellers, ex parte Solly V. Forbes ■ V. Rathbone 13, 34, 113, 146, 190, 201, 217 a, 867, 889 Solomons v. Bank of England 228, 894, 406, 414 V. Dawes 247, 440 South Carolina Bank v. Case 124 Southerne v. How 310, 339 Southwark Bridge Co. v. Sills 63 Southwick V. Estes 462 Speering v. De Grave 446 Spencer v. Field 147, 148, 149, 160 a, 270, 274 a, 396, 406 Spittle V. Lavender 154, 244, 251, 278 Spitzer u.- St. Marks Ins. Co. 58 Sprague v. Bailey 42 V. Gillett 68 Spring V. So. Car. Ins. Co. 370, 379 Springer v. Hyde 69 Sproul V. Hemmingway '453 c Spurrier v. Elderton 336 Stackpole v. Arnold 147, 156, 166, 157, 160 a, 266, 268, 269, 270, 272, 276 u. Earle Stafford (Mayor of) v. Till Stainback v. Bank of Virginia V. Read 330 63 72 9, 59 Stainbank v. Penning 116 Stainer v. Tyson 69, 72, 73, 127, 244 Stanton v. Blossom 247, 248 V. Camp 147, 153, 154 a Staples V. Alder 451 Stark 1). Highgate Archway Co. 52 ^' " ■■ 307 a 78 346 State V. Hastings State of Illinois v. Delafield Stebbins v. Leowolf Steel V. The Southeastern Rail. Co. Steers v. Lashley Steiglitz V. Egginton Stephens v. Badcock V. Elwall V. Robins 464 6 236, 346 49 203, 217 a, 800 808, 309, 812 376 147, 264 a, 274 b, 279 Stevens v. Armstrong 464 c V. Hill 156, 167, 159 V. Mortimer 898, 435 V. Robbins 374, 376 Stevenson v. Blakelock 203, 883 Stetson V. Patten INDEX TO CASES CITED. xxxm Stevenson v. Maxwell 326 Stewart v. Aberdein 98, 181, 404, 412, 429, 430 V. Duncan 217 V. Dunlop 139 V. Hall 296, 297, 299, 434 V. Kennett 247, 248 Stewartson v. Watts 134, 135 Stickney v. Munroe 452 Stinohfield v. Little 147, 148, 149, 303 Stirling, ex parte 383 Stock V. Harris 306, 314, 319 a Stocking V. Sage 339 Stoddard v. Mcllvain 77 Stone V. Cartwright 308, 312, 313, 454, 454 c, 455 V. Cheshire Rail. Corp. 464 V. Codman 464, 454 c V. Hayes 210 V. Ketland 453 V. Wood 148, 273, 276, 278 Stonehouse v. Gent 119 a Storrs V. Utica 454 a Stoughton V. Baker 13 Stracey v. Deey 404, 419, 420 Strange v. McCormick 463 h Strawbridge v. Turner 217 c Strong V. Hart 431 Strutt V. Hodgson 259 SuUivau v. ^ampbeU 160 a, 270 V. Greaves 235 V. M. & M. Railroad 453 h Sumner v. WiUiams 264, 273, 280 Sumners v. Solomon 54 Sussex, Duke of, (The Ship) 456 a Sutton V. Clarke 321 , ex parte 146, 217 a First Parish in, v. Cole 42 V. Tatham 96 Swan V. Nesmith 215 Sweet V. Pym 360, 361, 867 Swift V. Hopkins 306 V. Tyson 379, 380 Sykes v. Giles 126 Taber v. Cannon 77, 147 V. Perrot 201, 217 a, 231 a 429 Taft V. Brewster 148, 276, 278 Taggard v. Loring 116 Taggart v. Stanberry, 69 Taintor v. Prendergast 147, 160 a, 161, 266, 268, 269, 290, 400, 401, 403, 404, 420, 448 Talbot V. Godbolt 269 Tanner v. Christian 165, 269 Tapley v. Martens 431 Tarrant v. Webb '; 453 d, 453 h Tassey v. Church " 280 Tate V. Evans 169 V. Hilberts 488 Taunton & South Boston Turnpike V. Whiting 160 a, 269, 395, 396 Taylor v. Brewer 325 V. Kymer 420, 437 V. Lendy 235 V. Plumer 215, 229, 231, 242, 259, 435, 436, 437 V. Robinson 66, 360 V. Salmon 210, 211 V. 451 V. Shelton • 264 a V. The Great Indian Penin- sula Railw. Co. 49 Teasdale v. Teasdale 91 Templar v. McLachlan 333 Temple v. Pomroy 77 Tenant v. Elliot 235, 347 Terrill v. Elower 253 Texiras u. Evans 49 Thacher v. Dinsmore 280 V. Winslow 394 Thallhimer v. Brinokerhoff 134, 135 Thames (The Ship) 453 The Thames Steamboat Co. v. Housatonic Railroad 429 Thomas v. Bishop 169, 226 Thomas' Ex'r v. Edwards 162 Thompson, ex parte 835 V. Farmer 367 V. Giles 228 V. Havelock 334 V. Perkins 33, 112, 215 229, 231 Thomson u. Davenport 160 a, 261, 264, 266, 267, 268, 269, 270, 288, 289, 290, 291, 293, 400, 423, 446, 448, 449 V. Thomson 236 Thorndike v. Godfrey 3'43 Thorne v. Deas 478 Thornton v. Kempster 28 Thorold v. Smith 104, 263 Thwayes v. Dve " 67 Tickel V. Short 190, 217 a Tide Water Canal Co. v. Archer 221 Tilson V. Warwick Gas Light Co. 53, 422, 460 Tilton (The Schooner) 164, 211 Tidnall v. Brown 247 Tippetts V. Walker 13, 148, 149, 165, 5 273, 276, 278, 302 Tobey v. Barber 431 V. Olaflin 287 Tobin V. Crawford 274 XXXIV INDEX TO CASES CITED. ' Todd V. Emly- — «. Reid Tomlinson v. CoUett Topping i>. Healey Toulmin v. Steere Towle V. Hatch V. Jackson V. Leavitt 289, 442 98, 103, 109 17, 73, 126 329 140 269 243 72, 102 Townsend v. Corning 264 a V. Hubbard 148, 149, 154, 264 a, 274 o V. Inglis 430 V. Susquehanna Turn- pike Co 308 Tracy v. Swartwout 300, 301, 307 Tradesman's Bank v. Astor 131, 165 Trask v. Roberts 154, 276 Travers v. Crane 477 Trelawney v. Thomas 338 Treuttel v. Brandon 228, 435 Triplett v. Neale 300 Trueman v. Loder 28, 160 a, 268, 269, 400, 401 Tuberville v. Stamp 456 Tubbs V. Hoft 802 Tucker v. Moreland 6 Tunney v. Midland Railw. Co. 453 e Twogood, ex parte 228 Tyler v. Freeman 896 U. Udell V. Atherston 453 Underwood v. NichoUs 98 Union Bank v. Beirne 42 ' United Ins. Co. v. Scott 38, 118 United States Bank v. Binney 126 United States v. Bartlett 435, 463, 466 V. Dugan 394, 412 V. Fillebrown 324, 325 V. I-Ialberstadt 308 — V. Jarvis 124, 463, 466, 467 — V. Kirkpatrick 319 V. McDaniel 325 V. Parmele 160, 161 V. Ripley 285 Unwin V. Woolseley 302, 303 Upham V. Lafavour 385 Upton V. Gray 266, 291 — V. Suffolk County Mills 60 Ure V. Currell 192 Urquhart v. Mclver 78, 113, 367 Usparicha v. Noble 394 V. Valentine v. Piper Vanada v. Hopkins 68 .69 Van Allen «. Vanderpool 60 Van Amringe v. Peabody 113, 225 Van Brunt v. Schenck 312 Vanderbilt v. Richmond Turnpike Co. 317, 818 Vandervaldy w. Barry 843 Vanderzee «. Willis 381 Vandyke v. Brown 336 Vanguard (The Ship) 196, 344 Vanhorne v. Frick 50 Van Reimsdyck v. Kane 163 Van Rensselaer v. Morris 138 Van Staphorst v. Pearce 894 Varden v. Parker 204 Veazie v. Williams 126 Veil V. Mitchell's Adm'rs 131 Vellejo V. Wheeler 216 Vere v. Ashby 124 Vernon v. Hankey 259, 349 Vianna v. Barclay 199, 268 Vicars v. Wilcocks 217 c Vose V. Allen 456 a — V. Lancashire & Yorkshire Railway Co 453 g Vrou (The Judith) 36 VuUiamy v. Noble 228 W. Wake V. Atty 191 Wakefield Bank (The), ex parti 228 Waloh V. Whitcomb 477 Waldo V. Martin 330 Walkers. Bank of New York 264 a - V. Birch - V. Palmer - V. Russ - ». Skip with - V. Swartwout 362, 865, 378 403 17, 73, 126 302,303,306 Wallace v. Branch Bank of Mobile 69 ■ — V. Cook 488 V. Telfair 190, 218 Wallis V. Manhattan Bank 481 - V. Woodgate 369 372, 403, 420 258 Walter ». Ross Walters v. Monroe Walton V. Hanbury Walworth, &c. Bank v. Farmers' &c. Co. 211 Wanstall v. Pooley 454 Waples V. Hastings 6 Warburton v. Great Western Railw. ,, Co. 453 g Ward V. Evans 253 V. Hobart 456 V. Williams 256 Waring, ex parte -228 "• Cox 261, 395 INDEX TO CASES CITED. XXXV AVaring v. Favenck V. Mason Warner v. McKay V. Mower 446, 448, 449 269, 270 404 149 Warren v. Manuf. Ins. Co. 347 Warwick v. Noakes 96 ■ V. Slade _ 465 Washington Bank v. Lewis 87 Waters v. Brogden ' 126 V. Monarch Life and Fire Ins. Co. Ill Watkinson v. Laughton 316, 316 Watson V. King 477, 488 Waugh V. Carver 232 Wayland's case 66 Weare v. Gove 264 a Weaver v. Ward 466 Webb V. Brooke 346 — ■■ V. Burke 276 Webb et al. v. Drake 322 Webber v. Williams College 77 Webster v. De Tastet 195, 217 c, 222, 235 V. Pierce 208 V. Seekamp 122 Weed V. Panama Railroad 452, 455 Weeks V. Maillardet 49 Wellman v. Nutting 196 Wells V. Evans 49, 148, 242, 264 a, 450 qj^ Ross 232 Westwood V. Bell 379, 389, 390, 419 Wetherell «. Jones 347 Weyant v. N. Y. & H. Bail. Co. 463 a Weyland v. Elkins 464 Weymouth v. Boyer 362, 365, 378 Whaalan v. Mad River RaUroad 458 g Whatman v. Pearson 462, 456 Wheeler v. Kevins 49 V. Reed 266 Wheelock v. Wheelock 394 Whichcote v. Lawrence 211 Whitcomb v. Jacob 229 White V. Bartlett 217 V. Chapman 331, 333 V. Chouteau 112 V. Cuyler 148 V. Gifford 481 V. Lady Lincoln 203, 332, 338 V. Langdon 266 V. Madison 111, 264 a V. Proctor 27 V. Skinner 155, 264 o, 278, 276 Whitehead v. Tuckett 17, 18, 78, 104, . 126, 127, 131, 227, 444 V. Vaughan 370 Whitfield V. Le Despencer 314, 319 V. South East Railway 308 Whitlock V. Waltham 98, 104 Whitman v. Felton 216 Whitney v. Dutch V. Wyman 6 74 453 d, 463 h 458 d, 468 g 312 Wiggett V. Fox Wigmore v. Jay Wilbraham v. Snow Wild V. Bank of Passamaquoddy 114 Wilkes V. Ellis 27, 28 Wilkins v. Gilmore 462 V. Wetherell 6 Wilkinson v. Leland 240 Wilks V. Back 147, 148, 153 Willard v. Newbury 454 c Willett V. Chambers 44 William v. Cochran 79 Williams ». Barton 113, 114 V. Chester Rail. Co. 53 V. Clough 463 h V. Evans 108 V. Getty 87, 97 V. Littlefield 192, 348, 354, 862, 874 V. Lunenburg 42 V. MiUington 27, 107, 116, 396, 897, 401, 414 V. Mitchell 56 V. Nichols 36 V. Nichols & Terry 117 V. Walker 98, 142 Williams v. Walsby 49 V. Winchester 160 a, 491 V. Woods 67 V. Woodward 43 Williamson v. Price 456 a Willinks V. HoUingsworth 258,259, 889 Willis V. Bank of England 140 d V. Glover 189 Wilson V. Anderton 217, 440 V. Bailey 270 V. Balfour 858 V. Coffin 200 V. Creighton 836 V. Edmonds . 488 V. Foster .488 V. Hart 291, 446, 448 V. Heather 366 V. Keymer 254 V. Beverly 476 V. Poulter 242, 260, 269 V. Rich 6 ». Short 217 c V. Tumman 247, 261 a V. Wilson 74, 192 V. Zuluetta 268, 400 Wiltshire v. Sims 60, 78, 226 Winsor, ex parte 13 V. Griggs 266, 267 Winter v. Coit ' 361 Winterbottom v. Wright 201, 308, 452, 463, 463 &, 454 a, 457 XX XVI INDEX TO CASES CITED. Wiswall V. Brinson 464, 454 c Withington v. Herring 58, 68, 72, 73, 133 Witte V. Hague 454 Wolff v. Horncastle 111, 141, 161, 239, 336 V. Koppell 215 Wontner v. Sharp 126 Wood V. Auburn & Eocliester R.R. 49 V. Dennett 154, 276 V. Goodridge 68, 148 V. McCain 66 346 68, 259 Wood V. Van Duzen Woodbury v . Lamed Woodbury Sav. Bk. «. Charter Oak Ins. Co. 68 Woodes V. Dennett 164, 264, 264 a, 274 Woodford V. McLenahan 59 Woodhouse v. Meredith 210 Woodin V. Burford 126 Woodrop Sims (The Ship) 453 Woodstock Bank v. Downer 396 Woodward v. Suydam 217 c, 221, 259, 333 Woolsey r>. Tompkins 42 Worrall v. Munn 49 Wostenholm v, Davies 98 Wren v. Kirten 200, 205, 208, 218 Wright V. Boynton 256 V. Dannah 9, 81, 211 u. N. Y. Central Railroad 453^ ■ V. Snell 382 WyattM. Marquis of Hertford 296, 433, 434, 449 Wyburd «. Stanton Wyman v. Gray Wynne ». Thomas X. Xenos V. Wickham 330 154 68 Yaj-borough v. Bank of England 62, 63, 64, 308 Yates V. Bond V. Brown Yerby v. Grigsby Yerger v. Warren Yerrington v. Greene York Co. Bank v. Stein Young V. Cole V. N. Y. Central Railroad 453 £f V. White 390, 411, 419, 420, 444 107 456 a 68, 148 453 488 160 a Zacharie v. Nash Zino V. Verdelle Zoit V. Millauden Zouch V. Parsons 261 259 371 6 COMMENTARIES ON AGENCY. CHAPTER I. AGENCY IN GENEEAL. [* 5 !• Object of the author in his Commentaries. 2. It is a general maxim, that wiiatever a man sui Juris may do of himself, he may do by another. And correlatively what is done by another is to be deemed done by the party himself. 3. Agent and agency defined. i. Agency in the Roman law.] § 1. In conformity with the original plan, prescribed to me by the founder of the Dane Professorship, my design in the present commentaries is to expound the elementary principles belonging to the leading branches of commercial and maritime jurispru- dence. And, in the first place, let us proceed to the consideration of the law of agency, a subject intimately connected withall these branches, and in no small degree necessary to a full and exact exposition of the doctrines applicable to them. Prom this we shall be led, by a very easy and natural transition, to the law of partnership. And these being discussed, the path to others will lie open before us, unobstructed by any collateral inquiries, which may embarrass our progress. § 2. It is obvious to remark, that a large proportion of the business of human life must necessarily be carried on by persons, not acting in their own right, o^r from their own intrinsic authority, over the subject-matter, but acting under an authority derived from others, who, by the principles of natural and civil law, are exclusively invested with the full and complete original dominion, authority, and right over such subject-matter. By the general theory of our municipal jurisprudence, and probably by that of all civ- ilized nations, professing to be governed by a regular system of 2 AGENCY. [CH. I. laws, every person is invested with a general authority to dispose of his own property, to enter into contracts and engagements, and to perform acts, whicli respect his personal rights, interests, du- ties, and obligations, except in cases where some positive or known disability is imposed upon him by the laws of the country, in which he resides, and to which he owes allegiance. Every person not under such a disability, is treated as being sui juris, and capable, not only of acting personally in all such matters by his own proper act, but of accomplishing the same object through the instrumentality of others, to whom he may choose to delegate, either generally, or specially, his own authority for such a pur- pose.i In the expanded intercourse of modern society it is easy to perceive, that the exigencies of trade and commerce, the urgent pressure of professional, official, and other pursuits, the tempo- rary existence of personal illness or infirmity, the necessity of transacting business at the same time in various and remote places, and the importance of securing accuracy, skill, ability and speed in the accomplishment of the great concerns of hu- man life, must require the aid and assistance and labors of many persons, in addition to the immediate superintendence of him, whose rights and interests are to be directly affected by the results.^ Hence the general maxim of our laws, subject only to a few exceptions above hinted at, is, that whatever a man sui juris may do of himself, he may do by anotlier ; and as a correlative of the maxim, that what is done by another is to be deemed done by the party himself. " Qui facit per alium, per seipsum facere videtur." ^ § 3. In the common language of life, he, who, being compe- tent, and sui juris, to do any act for his own benefit, or on his own account, employs another person to do it, is called the prin- cipal, constituent, or employer ; and he, who is thus employed, is called the agent, attorney, proxy, or delegate of the principal, con- stituent, or employer.* The relation, thus created, between the ' Bac. Abridg. Authority, A. " See 1 Domat, B. 1, tit. 15; Introduction to title Proxy, &c. 215, 216. The Digest pithily puts the point. Usus autem proouratoris perquam ne'cessa- rius est, ut qui rebus suis ipsi superesse vcl nolunt, vel non possunt, per alios possint, vel agere, vel conveniri. Dig. Lib. 3, tit. 3, I. 1, § 2. ' Co. Litt. 258 a. « See 1 Domat, „B. 1, tit. 15, Introd. § 4.J AGENCY IN GKNERAL. 3 parties, is termed an agency. The power, thus delegated, is called in law an authority. And the act, when performed, is often designated as an act of agency or procuration ; the latter word being derived from the Roman law, in which procuratio signifies the same thing as agency, or the administration of the business of another.^ When the agency is created by a formal written instru- ment, especially if it be under seal, it is with us commonly called a letter of attorney ; by foreign writers it is more commonly called a procuration.^ In the Roman law the agent was called a procura- tor, and he was thus defined : " Procurator est, qui aliena negotia mandatu domini administrat ; " ^ so that the dominus (master) of the civil law answered exactly to the principal of our law. In- deed, the definition of an agent at the common law seems bor- rowed from this very source ; and Lord Chief Baron Comyns has well expressed it, when he says, that "An attorney is he, who is appointed to do any thing in the place of anotlier."* § 4. It may not be without use to remark, that in the Roman law an agency was sometimes called, in a large sense, a manda- tum (mandate) ; and the principal was denominated mandator or mandans, (the employer or mandant,) and the agent mandator rius, (the employee or mandatary.) ^ For, in the primitive sense of the term, mandatum was not so much a contract, from which there sprung up a civil • obligation and action, as a business or negotiation, (negotium^ which was confided to . the discretion of the mandatary ; " mandare est gerendum quid alicui committere.'' ^ But, in the moreordinary sense of the word, mandatum was lim- ' Brisson.De Verb. Sign. Procuratio; Code of Louisiana, tit. 15, art. 2954; Civil Code of France, art. 1984, 1985; Malyne, Lex Merc. 79; 1 Bell, Conim. 385 (4th ed.) ; Id. B. 3, pt. 1, ch. 3, p. 476 (5th ed.). * Co. Litt. 52 a; Malyne, Lex Merc. 78, 79. Thus, for example, Domat defines a procuration in this manner: " La procuration est un acte par lequel celui, qui ne pent vaquer luim^rae k ses affaires, donne pourvoir h. un autre de le faire pour lui, comme s'il etait luimfeme present; soit qu'il faille simplement gdrer et prendre soin de quelque bien, ou de quelque affaire, ou que ce soit pour traiter avec d'autres." 1 Domat, B. 1, tit. 16, § 1, art. 1. ' Dig. Lib. 3, tit. 3, 1. 1; Heinecc. ad Pand'! Lib. 3, tit. 3, §§ 415, 423; Pbthier, Pand. Lib. 3, tit. 3, n. 2. * Com. Dig. Attorney, A. ' See 1 Stair, Inst. B. 1, tit. 12, p. 127, ed. by Brodie; Ersk. Inst. B. 3, tit. 3, § 31 ; Story on Bailm.J 188. * Brisson. Verb. Signif. Mandare; Noodt. in Pand. torn. 2, p. 372 ; Heinecc. ad Pand. Lib. 17, tit. 1, § 230, note; 1 Domat, B. 1, tit. 15, Introd. 4 AGENCY- [CH. II. ited to such an agency, as was authorized and undertaken for another gratuitously, and without reward. For, if a compensation was to be received, it fell under another head, and was a locatio et conductio, a letting and hiring of the services of the agent ; and it was then governed by somewhat different obligations and duties.^ Hence it is declared ; " mandatum, nisi gratuitum, nullum est, nam originem ex officio et amicitiS, trahit. Contrarium ergo est officio merces ; interveniente enim pecuni§, res ad locationem et conductionem potius respicit." ^ But this distinction and the con- sequences thereof have been fully expounded in the commen- taries on bailments, to which the learned reader is referred for more exact information.^ The agency, which will be princi- pally, though not exclusively, treated of in the present work, is that which arises in the course of commercial affairs ; and illus- trations will be borrowed from other sources, only when they may serve more fully to explain the doctrines applicable to the former. CHAPTER II. WHO ARE CAPABLE OP BECOMING PRINCIPALS AND AGENTS. [•§ 5. General rule that every person mi juris is capable of becoming principal or agent, unless prevented by municipal law. 6. Infants and married women, incapable of appointing an agent, except under special circumstances ; idiots, lunatics and others, not sui juris wholly incapable. 7. Persons not mi juris may be agents ; but not persons non compos mentis. 8. Similar distinctions existed in the civil law. 9. A person cannot act as agent in a transaction where he has an adverse interest. 10. Same distinction in the civil law. 11. Person cannot delegate authority to another to do an unlawful act ' It is in the broad sense above stated, that the word "mandate" is used in the present Civil Code of France, as well as in the Civil Code of Louisiana. See Civil Code of France, art. 1984, 1986 ; Civil Code of Louisiana, art. 2964, 2955, 2960. The modern Scottish mercantile law seems to apply the word mandate in the same broad sense. 1 Bell, Comm. 386, § 408 (4th ed ) • Id B. 3, pt. 1, ch. 3, § 3, p. 476 (5th ed.) ; 1 Domat, B. 1, tit. 15, Introd ' ' ' Dig. Lib. 17, tit. 1, 1. 1, § 4; 1 Domat, B. 1, tit. 16, § 1, art. 9. • Story on Bailm. §§ 137-166. § 6.] AGENTS, WHO MAY BE. 5 12. Authority to do acts of a personal nature cannot be delegated. 13. A bare power or authority from another cannot be delegated, — 14. Unless from the express language used, or from the fair presumptions, growing out of the particular transaction, or of the usage of trade a broader power was intended to be conferred on the agent : 16. Yet the substituted agent may still be responsible to the original agent for his acts under the substitution. 16. Aggregate corporation must act through agent. 17-19. Agency special or general : distinction — 20. Same distinction in the civil law. 21. Doctrines applicable to one kind of agent, sometimes wholly fail in regard to the other. General agent, not a universal agent. 22. If principal has more than one business, general ageat may be limited to one particulai business.] § 5. Let us next proceed to the consideration of the question, who is capable of becoming a principal, and in regard to what matters ; and who is capable of becoming an agent, and in regard to what matters. In general, it may be said, that every person sui jii^is, is capable of becoming both a principal and an agent, unless there exists some disability or prohibition by the municipal law, which is to regulate his rights and duties. In order, there- fore, to arrive at any accurate understanding of this subject, we are to examine the exceptions created by that municipal law ; and where these exceptions cease, the natural presumption is, that in all other cases the general 'rule prevails. § 6. And first, who are principals, capable of delegating au- thority to others to act in their behalf and for their interest. In general it may be stated (as has been already intimated), as a rule of the common law, that, whenever a person has a power, as owner, or in his own right, to do a thing, he may do it by an agent.^ Every person, therefore, of full age, and not otherwise disabled, has a complete capacity for this purpose. But infants, married women, idiots, lunatics, and other persons not sui juris, are either wholly or partially incapable of appointing an agent. Idiots, lunatics, and other persons not sui juris, are wholly inca- pable ; and infants and married women are incapable, except under special circumstances.^ Thus, for example, an infant may ^ Coombe's case, 9 Co. R. 75 b; Com. Dig. Attorney, C. 1; Heinecc. ad Pand. Pt. 1, Lib. 3, tit. 1, § 424. Ante, § 2. " The civil law included the like disabilities. Thus, for example, an idiot or lunatic was rendered incapable of contracting, and could not delegate authority to another to act for him. Furiosus nullum negotium gerere potest, quia non intelligit, quod agit. Inst. Lib. 3, tit. 20, § 8. The same rule applied to an infant, as contradistinguished from a minor of 6 AqfENCT. [CH. II. authorize another person to do any act which is for his benefit ; but he cannot authorize him to do an act which is to his preju- dice. ^ If, therefore, an infant should make a letter of attorney to another, to take livery of lands on a feoffment to him, it will be good ; for it will be intended to be for his benefit.^ But if an infant should make a feoffment, and execute a letter of attorney to another, to make livery in his name to the feoffee, it will be void [or' at least voidable] ; for such feoffment and livery will be intended to be to his prejudice.** So in regard to married women, ordinarily, they are incapable of appointing an agent or attorney ; and even in case of a joint suit at law, an appointment of an attorney by a married woman is void; and her husband may make an attorney for both.* But where a married woman is capa- ble of doing an act, or of transferring property or rights with the assent of her husband, there, perhaps, she may, with the assent years of discretion. Nam infans, et qui infantias proximus est, non multum a furioso distant; quia hujusmodi aatatis, pupilli nullum habent intelleetum. Inst. Lib. 3, tit. 20, § 10. Furiosi vel ejus, cui bonis interdictum sii, nulla voluntas est. Dig. Lib. 60, tit. 17, 1. 40 ; Id. 1. 6. But then again a minor or pupil Diigbt sometimes act by an agent, with the consent of his guardian or tutor. Verum, si ipse pupillus prasposuerit, si quidem tutoris auotoritate, obligabitur; si minus, non. Dig. Lib. 14, tit. 8, 1.9; Inst. Lib. 3, tit. 20, § 9 ; Pothier, Pand. Lib. 3, tit. 3, n. 17, 18; Pothier on Oblig. n. 49-52; Dig. Lib. 50, tit. 17, 1. 6. Heineccius lays down the general rule, and the exceptions, in the following brief terms. (1.) Ut ii demum procuratorem constituant, qui et mandare et res suas libere administrare possunt; adeoque, (2.) Non furiosi mente capti, infantes, surdi, muti, prodigi. Heinecc. ad Pand. Pt. 1, Lib. 3, tit. 3, § 424. See Pothier on Oblig. n. 49-52, n. 74, 75. ' Keane v. Boycott, 2 H. Black. 516 ; Tucker v. Moreland, 10 Peters, 68, 69 ; Whitney v. Dutch, 14 Mass. 463 ; 2 Kent, Comm. Lect. 31, pp. 233-243 (4th ed.). ' Com. Dig. Enfant, B. 1 ; 1 Roll. Abridg. 730, 1. 10; Zouch v. Parsons, 3 Burr. 1808 ; Coombe's case, 9 Co. R. 76 b ; 2 Kent, Comm. Lect. 31, p. 233- 344 (4th ed.). ' Com. Dig. Enfant, C. 2 ;. Perkins, Grant, 13; Zouch v. Parsons, 3 Burr. 1804 ; Coombe's case, 9 Co. R. 75, 76 ; Lawrence v. McArter, 10 Ohio, 37 ; Pyle V. Cravens, 4 Littell, 18 ; Doe d. Thomas v. Roberts, 16 Mees. & Wels. 778 ; Bennett v. Davis, 6 Cowen, 393 ; Waples v. Hastings, 8 Harrington, 403 ; Knox V. Hack, 10 Harris, 337. See Bingham on Infancy (Bennett's ed.). * Saunderson v. Marr, 1 H. Bl. 75 ; Roberts v. Peirson, 2 Wils. 3 ; Fox- wiste V. Tremaine, 2 Saund. 212, 213 ; Bacon, Abridg. Baron & Feme, I. ; Wil- kins V. Wetherell, 3 Bos. & Pull. 220 ; Maclean «. Douglas, 3 Bos. & Pull. 128 ; Viner, Abridg. Attm-ney, C. pi. 5, 7 ; Co. Litt. 42 b ; Harg, note 4 ; Co. Litt. 112 a, H'arg. note 6. § 7.] AGENTS, WHO MAY BE. 7 of her husband, appoint an agent or attorney to do the same.^ So with regard to her separate property, she may, perhaps, be entitled to dispose of it, or to encumber it, through an agent or attorney ; because in relation to such separate property she i^ generally treated, as a feme sole.^ I say, perhaps ; for it may admit of question ; and there do not seem to be any satisfactory authorities directly on the point.^ § 7. Secondly, who are capable of becoming agents. And here it may be ptated, that there are few persons who are ex- cluded from, acting as agents, or from exercising an authority delegated to them by others. Therefore, it is by no means nec- essary 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, villeins, [slaves,] and aliens may be agents for others.* For the execution of a naked authority can be attended with no manner of prejudice to persons under such incapacities or disabilities, or to any other person, who by law may claim any interest under such incapacitated or disabled persons after their death.^ Nay, a feme covert may ' 8ed qucere. ' See 2 Story on Equity Jurisp. §§ 1391-1402. ' See Clancy on Husband and Wife, 166-169; Id. ch. 5, pp. 282-294; Roper on Husband and Wife, eh. 16. p. 97-100 ; Id. 107, 108, 126 ; Id. eh. 19, pp. 184, 185, 193, 194. It is laid down in Com. Dig. Baron & Feme, G. 3, that, if there be a demise for years by husband and wife of the lands of the wife, with a letter of attorney, signed by both, to deliver the lease upon the land, it is a good demise of both during the coverture, though the wife cannot make an attorney. And for this is cited v. Hopkins, Cro. Car. 165 ; and Cooper's case, 2 Leon. 200; and Anon. 2 Bulst. 13; which are directly in point. But Gardner u. Norman, Cro. Jac. 617 ; Wilson v. Rich, Yelv. 1; S. C. 1 Brownl. 134; Plomer ». Hockhead, 2 Brownl. 248, are to the contrary. Adams, in his work on Ejectment (p. 179 [174], third edition), lays down the rule according to these latter cases. See also Runnington on Eject- ment, 148. ■* Thomson on Bills, p. 220 (2d ed.), 1836; Co. Litt. 52 a; Bac. Abridg. Authority, B. ; Com. Dig. Attorney, C. 4 ; Id. Baron & Feme, P. 3 ; Chastain V. Bowman, 1 Hill (S. C), 270. Aliens are enumerated by Lord Coke (as in the text) as capable of being agents for others. By this Lord Coke probably had in view alien friends, who, although they have not a capacity to hold real estate for themselves, may act as attorneys for others in letting or sell- ing real estate. ' Bacon, Abridg. Authority, B. 8 AGENCY. [CH. II. be an attorney of another to make livery to her husband upon a feoffment ; and a husband may make such livery to his wife ; although they are generally deemed but one person in law.^ [So the husband may act as agent for his wife in investing her money in real estate, and though he take the title to himself, it will not avail his creditors, there being no fraud. ^] She may a,lso act as the agent or attorney of her own husband, and as such, with his consent, bind him by her contract or other act ; ^ or she may act as the agent of another in a contract with her own hus- band.* There are, indeed, some exceptions to the general rule above stated ; for an idiot, lunatic, or other person otherwise uon compos mentis, cannot do any act, as an agent or attorney, bind- ing upon the principal ; for they have not any legal discretion or understanding to bestow upon the aifairs of others, any more than upon their own.^ And even in case of a feme covert, although in general she is competent to act as an agent of a third person ; yet it is by no means clear, that she can do so against the express dissent of her husband, as such agency may involve duties and services inconsistent with those which appertain to her peculiar relations to her husband and family. § 8. Distinctions, not unlike these, existed in the civil law ; for by that law a minor, a feme covert, a servant, a slave, a kins- man, or an alien, might be appointed as an agent. And espe- cially does this seem to have been applicable to the common course of transactions in the ordinary business of a store or shop, where the person, who superintended it, was ordinarily called Institor. " Institor appellatus est ex eo, quod negotio gerendo in- stet, nee multum facit ; tabernse sit prsepositus, an cuilibet alii ne- gotiationi.s Parvi autem refert, quis sit institor ; masculus, an ' Emerson v. Blonden, 1 Esp. Ui ; Prestwiek v. Marshall, 7 Bing. 665 ; Palethorp v. Furnish, 2 Esp. 611, note; Hopkins v. MoUineux, ^Vend' 466. ' Ready v. Bragg, 1 Head (Tenn.), 611. ' Bacon, Abridg. Authority, B. ; Co. Litt. 112, and Harg. note 6 ; Pothier on Oblig. n. 74, 82; Pickering v. Pickering, 6 N. H. 124; MacKinley v. Mc- Gregor, 3 Wharton, 369 ; Felker v. Emerson, 16 Verm. 663 ; Story on Bail- ments, § 162 ; Edgerton v. Thomas, 5 Seld. 40. ' Co. Litt. 58 a; Com. Dig. Attorney, C. 4; Id. Baron & Feme, E. » Thomson on Bills, p. 220 (2d ed.), 1836. " Dig. Lib. 14, tit. 3, 1. 3; Id. 1. 6, Introd. and §§ 1-4; Pothier on Oblig by Evans, n. 74-82, n. 447-456 ; 1 Bell, Comm. 385 (4th ed.) ; Id. p. § 9.] AGENTS, WHO MAT BE. 9 fsemina ; liber, an servus ; proprius, vel alienus : — Item, quisquis praeposuit ; nam, et si mulier praeposuit, competit institoria (actio), exemplo exercitorise actionis ; et, si mulier sit praeposita, tenebitur etiam ipsa. Sed et, si filia familiS.s sit, vel ancilla praeposita, com- petit institoria actio. Pupillus autem institor obligat eum, qui eum praeposuit, institoriS, actione ; quoniam sibi imputare debet, qui eum praeposuit. Nam plerique pueros puellasque tabernis praeponunt." ^ § 9. But although all persons sui jwis, are in general (as we have seen) capable of becoming agents ; yet we are to under- stand, that they cannot at the same time take upon themselves incompatible duties and characters ; or become agents in a trans- action, where they have an adverse interest, or employment."'^ Thus, a person cannot act as agent in buying for another goods belonging to himself; and at a sale made for his principal, he cannot become the buyer.^ Neither can he, when holding a fiduciary relation, such as trustee, guardian, attorney, or agent, 478-481 (5th ed.) ; 1 Domat, B. 1, tit. 16, § 3, arts. 1, 4, 6 ; Pothier, Pand. Lib. 14, tit. 3, n. 1* 3, 4, 5, 6, 17, 18; Id. Lib. 14, tit. 1, n. 11, 12; 1 Stair, Inst, by Brodie, B. 1, tit. 12, § 19. In another passage the definition of Institor is somewhat differently given : Institor est, qui tabemas, locove, ad emendum vendendumne, praeponitur, quique sine loco ad eundem actum prse- ponitur. Dig. Lib. 14, tit. 3, L 18. Mr. Bell, in his commentaries on the Laws of Scotland, Vol. 1, p. 385 (4th ed.) ; Id. pp. 479, 480 (5th ed.), says, that the charge given to a clerk to manage a store or shop is called Institorial power. See, also, 1 Stair, Inst, by Brodie, B. 1, tit. 11, §§ 12, 18, 19 ; Ersk. Inst. B. 3, tit. 3, § 46. ' Dig. Lib. 14, tit. 3, 1. 7, §§ 1, 2; Id. 1. 8; 1 Domat, B. 1, tit. 16, art. 4; Pothier, Pand. Lib. 3, tit. 3, n. 17. Heineccius may be thought to have drawn a somewhat broader inference ; and to have insisted, that persons, generally disabled to act in their own affairs, were disabled to act as agents for others. Ex eodem inferimus (says he) natura inhabiles ad negotia aliorum gerenda, procuratores esse non posse ; veluti furiosos, mente captos, infantes, surdos et mutos, minores annis septemdecim. Heinecc. ad Pand. Lib. 3, tit. 3, § 425. But he, most probably, referred to such mental incapacity, as deprived them of a suitable discretion to perform the duties of an agent. See Pothier, Pand. Lib. 3, tit. 3, n. 19, 20; 1 Domat, B. 1, tit. 16, art. 4. " Paley on Agency, by Lloyd (3d ed.), ch. 1, Pt. 1, § 7, art. 5, p. 33; Id. art. 6, p. 37, and note (4) ; 1 Story on Equity Jurisp. §§ 315,316 ; Post, §§ 10, 210, 211. See Stainback v. Read, 11 Grat. 281. ' Paley on Agency, by Lloyd, 33-38 ; Massey e. Davies, 2 Ves. jr. 317 ; Charter v. Trevellyan, 11 Clark & Finn. 714 ; Bunker v. Miles, 30 Maine, 431 ; Walker v. Palmer, 24 Ala. 368 ; Post, §§ 210, 211, 213. 10 AGENCY. [CH. II. contract with the same general binding force with his principal, as in ordinary cases, where such a relation does not exist.i And a memorandum, made and signed by a seller, at the request of the purchaser, will not bind the latter, as a memorandum within the statute of frauds, on account of this incompatibility of char- acter.^ [So the agent of an insurance company, however broad his authority, cannot receive an application from himself, and insure his own property so as to bind the company.^] § 10. The civil law recognized in the fullest manner the same doctrine. " Tutor rem pupilli emere non potest. Idemque porri- gendum est ad similia, id est, ad curatores, procuratores, et qui negotia aliena gerunt." * The reason is laid down in another pas- sage ; that there is a natural incompatibility between the interest of the buyer and that of the seller. " Quemadmodum in emendo et vendendo naturaliter concessum est, quod pluris sit, minoris emere ; quod minoris sit, pluris vendere ; et ita invicem se circum- scribere.5 Or, as it is elsewhere said ; In pretio emptionis et venditionis naturaliter licere contrahentibus se circumvenire." ® Cujacius has expounded the bearing of this doctrine on various occasions ; and more especially, where he says ; " Nee enim unquam aliquis quidquam vendibit sibi, sed alii. Denique idem homo emptoi-is et venditoris officio fungi non potest. Cum vero idem non esset constitutum de curatore, quia, rem adolescentis vel fu- riosi, vel prodigi, curatorem emere non posse. Nee de Procura- tore ncgotiorum constituo ex mandate, vel immiscente se negotiis sine mandatp, non posse hiinc quoque etiam quidquam emere de rebus domini, ad quern negotia pertinent.'^ ' 1 Story on Equity, §§ 308-328, and cases cited in Paley on Agency, by Lloyd (3d ed.), p. 33-37 ; 1 Liverm. on Agency, 416-483 (e.d. 1818). ' Wright V. Dannah, 2 Camp. 203 ; Dixon v. Bromfield, 2 Chitty, 205 ; Fairbrother v. Simmons, 5 B. & Aid. 333. ' Bentley v. Columbia Ins. Co. 19 Barb. 595. * Dig. Lib. 18, tit. 1, 1. 34, § 7 ; Post, § 213. •■ Dig. Lib. 19, tit. 2, I. 22, § 3 ; Post, § 210. « Dig. Lib. 4, tit. 4, 1. 16, § 4; Post, §§ 210, 213. ' Cujaoii Opera, Tom. 6, p. 90, ad Lib. 15, Dig. Salvii Juliani (ed. Neap. 1758); Id. Tom. 4, p. 963, C. Comm. in Lib. 3, Eesp. Papin. ; Id. Tom. 1, p. 968, C. ad tit. de minor. 25 annis ; Dig. Lib. 4, tit. 4. See also Dig. Lib. 26^ tit. 8, 1. 5, § 2. Mr. Livermore has cited another passage, 1 Liverm. on Agency,' 417, note (ed. 1818), from Cujacius ; as contained in Cujac. ad Dig. Lib 4* 4, 16. 4; Cujac. Opera, Tom. 1, p. 998 (ed. 1765). It is: Emptor emit § 12.] AGENTS, WHO MAT BE. 11 § 11. In the next place, as to the subject-matter of an agency. Although, in general, what a person sui juris may do himself, he may delegate authority to another to do for him ; yet there are exceptions to the doctrine. Thus, although a person may do an unlawful act, it is clear that he cannot delegate authority to another person to do it ; for it is against the policy of the law to allow any such authority, and therefore the appointment is utterly void. It imports neither duty, nor obligation, nor re- sponsibility, on either side ; although it may involve both in punishment ; " Consentientes et agentes pari poena plectentur." ^ And this is clearly the dictate of natural justice ; and as such is recognized in the civil law. " Rei turpis nullam mandatum est.^ Illud, quoque, mandatum non est obligatorium, quod contra bonos mores est ; veluti, si Titius de furto, aut de damno faciendo, aut de injuria faciendS, mandat tibi ; licet enim pcenam istius facti nomini prsestiteris, non tamen uUam habes adversus Titium actionem."^ § 12. But there are other exceptions of a different character, and standing upon different principles. They arise from this, that the act to be done is of a personal nature, and incapable of being delegated ; or that it is a personal trust or confidence, and therefore by implication prohibited from being delegated. Exam- ples of both sorts are to be found in the common law. Thus, a person cannot do homage or fealty by attorney ; for it is deemed inseparably annexed to the man doing it, as a personal service.* So, although, by the ancient common law, a lord might beat his quam minimo potest, venditor vendit quam maximo potest. I do not find the passage in the place cited. But in Cujac. Comm. in Lib. 3, Respons. Papin. Cujac. Opera, Tom. 4, p. 963 (ed. 1758), ad § Cum. Inter. [Dig. Lib. 46, tit. 1, L 61, § 4], is the following passage: " Hsec scilicet est natura con- tractus emptionis et venditionis, ut vendat unus quanto pluris, emat alter quanto minoris possit." Post, § 210 and note. • Fitzherbert's case, 5 Co. R. 80. [* So a deed executed in time of war within the United States lines to citizens of the United States by the attorney of the grantor, while the grantor is within the Confederate lines and an alien enemy, is void as a contract between enemies. Filor v. United States, 3 Nott & Huntington's, Court of Claims Rep. 25.] » Dig. Lib. 17, tit. 1, 1. 6, § 3 ; Post, § 20. ' Inst. Lib. 3, tit. 27, § 7. Mr. Livermore's remarks on this subject are worthy of the attention of the learned reader. 1 Liverm. on Agency, § 2, pp. 14-23 (ed. 1818). * Coombe's case, 9 Co. R. 76 a ; Com. Dig. Attorney, C. 3. 12 AGENCY. [CH. 11. villein for cause or without cause ; yet he could not delegate his authority to another to beat his villein without cause.^ § 13. For a like reason, one, who has a bare power or authority from another to do an act, must execute it himself, and can- not delegate his authority to another ; for this being a trust or confidence reposed in him personally, it cannot be assigned to a stranger, whose ability and integrity might not be known to the principal, or who, if known, might not be selected by him for such a purpose.^ Therefore, if a man has a power given to him by the owner to sell an estate,^ or to make leases for him, he can- not act by an attorney or agent ; for it is a personal trust. So, if, by a will, an executor has a power given to him to sell prop- erty ; * or a person is vested with a power of appointment or distribution of property among certain persons, according to his discretion ; in each case the power must be executed by him per- sonally, and cannot be delegated to another.^ So, a factor can- not ordinarily delegate his employment, as such', to another, so as to raise a privity between such third person and his principal, or to confer on him, as to the principal, his own rights, duties, or obligations.^ The same rule applies to a broker ; for he can- ' Coombe's case, 9 Co. R. 76 a; Com. Dig. Attorney, C. 3. On the same account, where an act is required by statute to be done by the party, if it can be fairly inferred from the nature of the act, that it was intended to be per- sonally done, it cannot be done by an attorney. Thus, for example, where a feme covert is authorized by the laws of a State to convey her right in any real estate by deed, duly acknowledged by her upon a privy examination of a magistrate, it may be presumed, that she cannot acknowledge the same by an attorney. ' Bacon, Abridg. Authority, D. ; Ersk. Inst. B. 3, tit. 3, § 34 ; 1 Liverm. on Agency, § 5, pp. 54^66 (ed. 1818) ; Com. f)ig. Attorney, C. 3 ; 2 Kent, Comm. Lect. 41 (4th ed.), 633 ; Coombe's case, 9 Co. B. 75 b ; Blore v. Sutton, 3 Meriv. 237, 246 ; Schmaling v. Thomlinson, 6 Taunt. 147 ; Soley v. Rath- bone, 2 M. & Selw. 298 ; Cockran v. Irlam, 2 M. & Selw. 301, 303, note ; 1 Bell, Comm. B. 3, Pt. 1, ch. 4, § 4, p. 388 (4th ed.) ; Id. p. 482 (6th ed.) ; Emerson u. Providence Hat Manuf. Co. 12 Mass. 241, 242 ; Tippets u. Walker, 4 Mass. 697 ; Commercial Bank of Lake Erie v. Norton, 1 Hill, 601 ; Lynn ». Burgoyne, 13 B. Monroe, 400. ' Bocock ». Pavey, 8 Ohio St. 270. * Com. Dig. Attorney, C. 3 ; Coombe's case, 9 Co. R. 75 ; 1 Roll. Abr. Au- thority, E. 1. 30 ; Bacon, Abridg. Authority, D. ' 1 Roll. Abridg. Authority, C. 1. 16 ; Ingram v. Ingram, 2 Atk. 88 ; Att.- Gen. K. Berryman, cited 2 Ves. 643. ' Catlin V. Bell, 4 Camp. 183 ; Soley u. Rathbone, 2 M. & Selw. 298 ; § 13] , AGENTS, WHO MAX BE. 13 not delegate his authority to another to sign a contract in behalf of his principal, without the asseiit of the latter.^ [So where the directors of a corporation liad power to execute a lease of certain premises, it was held they could not authorize a third person to execute a lease which should bind the corporation.^ So, where by a statute, a corporation was authorized to lay assessments on its members, it was considered that this power could not be delegated to the directors.^] 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.^ And the' like rule prevailed, to some extent, in the civil law ; Procuratorem alium procuratorein facere non posse? It seems also to be the general rule of the Scottish law.^ Cockran v. Irlam, 5 M. & Selw. 801, n. ; Schmaling v. Thomlinson, 6 Taunt. 146 ; 1 Bell, Comm. 388, § 412 (4th ed.) ; Id. p. 482 (6th ed.) See also Post, §§ 108, 110. ' Hendersons. Barnwell, 1 Y. & Jerv. 387 ; 1 Bell, Comm. 388, § 412 (4th ed.) ; Id. p. 482 (5th ed.) ; Post, § 109. [But it has been held that a broker may authorize his clerk to make and sign a memorandum of a contract, in his presence, and when the clerk acts merely ministerially and exercises no dis- cretion of his own. Williams v. Woods, 16 Md. 220.] ' Gillis V. Bailey, 1 Foster, 149. See also Despatch Line ». Bellamy Man. Co. 12 N. H. 226; Stoughton v. Baker, 4 Mass. 522; Emerson «. Providence Hat Co. 12 Mass. 237 ; Brewster v. Hobart, 15 Pick. 302, Wilde, J. ; Blore v. Sutton, 3 Merivale, 237. See Hoyt v. Thompson, 5 Smith, 216. ' Winsor, ex parte, 3 Story, 411. See Mayer v. McLure, 36 Miss. 394. * 2 Inst. 597 ; Branch's Maxims, 38 ; 2 Kent, Comm. Lect. 41, p. 633 (4th ed.) ; Catlin v. Bell, 4 Camp. 183. * See Dig. Lib. 49, tit. 1, 1. 4,*§ 5; Lib. 14, tit. 1, 1. 1, § 5; Id. Lib. 17, tit. 1, 1. 8, § 3 ; Cujacii Opera, Tom. 10, p. 797 (ed. Neap. 1758) ; Heinecc. ad Pand. P. 1, Lib. 3, tit. 3, §§ 419-433 ; Ersk. Inst. B. 3, tit. 3, § 34 ; 2 Kent, Comm. Lect. 41, p. 633 (4th ed.) ; 1 Domat, B. 1, tit. 16, § S, art. 3. This seems regularly true in the civil law, in cases of suits ante litem contestatam ; and perhaps there might be the like qualifications annexed to the rule in some other cases. Dig. Lib. 14, tit. 1, 1. 1, § 5; Dig. Lib. 17, tit. 1, 1. 8, § 3; Pothier, Pand. Lib. 14, tit. 1, u. 1, 2, 3; lb. Lib. 17, tit. 1, n. 23; 1 Domat, B. 1, tit. 16, § 3, art. 3. Erskine, in his Institutes (B. 3, tit. 3, § 34), says, that by the Roman law, a mandatary might have committed the execution of the mandate to any third person ; and for this he cites the Digest, Lib. 17, tit. 1, « 1 Stair, Inst, by Brodie, B. 1, tit. 12, § 7, p. 129 ; Ersk. Inst. B. 3, tit. 3, 34. 14 AGENCY. [CH. II. § 14. In general, therefore, when it is intended, that an agent shall have a power to delegate his authority, it should be given to him by express terms of substitution.^ But there are cases, in which the authority may be implied ; as where it is indispen- sable by the laws, in order to accomplish the end ; or it is the ordinary custom of trade ; or it is understood by the parties to be the mode, in which the particular business would or might be done 2 [or where from the nature of the agency a sub-agent is necessary .3] Thus, if a person should order his goods to be sold by an agent at public auction ; and the sale could only be made by a licensed auctioneer, the authority to substitute him in the agency, so far as the sale is concerned, would be implied.* So where, by the custom of trade, a ship-broker, or other agent, is usually employed to procure a freight or charter-party for ships, seeking a freiglit, the master of such a ship, who is authorized to let the ship on freight, will incidentally have the authority to em- ploy a broker, or agent for the owner, for this purpose. And the same principle will apply to a factor, where he is, by the usage of trade, authorized to delegate to another the authority to sub- 1. 8, § 3. The passage seems to prove, that the action, mandati actio, would lie against the second mandatary in cases where the agency was for the adminis- tration of private affairs. Did the rule as to substitution, apply to the case of an institor, or common clerk in a shop? See the Digest, Lib. 14, 1. 1, § 5; 1 Domat, B. 1, tit. 16, § 3, art. 8. ' See 1 Liverm. on Agency, 64-56, (edit. 1818) ; Commercial Bank of Lake Erie v. Norton, 1 Hill, 505. ' Coles V. Trecothick, 9 Ves. 234, 251, 252 ; 1 Bell, Comm. 387-391, § 412 (4th ed.); Id. p. 482 (5th ed.) ; 3 Chitty.on Com. & Manuf. 206; Shipley V. Kymer, 1 M. & Selw. 484; Cockran v. Irlam, 2 M. & Selw. 301, 303, note; Laussatt v. Lippincott, 6 Serg. & R. 386; Johnson v. Cunningham, 1 Ala. 249, N. s. See Appleton Bank v. McGilvray, 4 Gray, 522 ; Dorchester Bank v. New England Bank, 1 Cush. 177. ' See the Quebeo Railroad Co. v. Quinn, 12 E. F. Moore (Privy Council), 233. [An agent has no right to delegate his authority to a sub-agent, without the assent of his principal ; but, where from the nature of the agency, a sub- agent must necessarily be employed, the assent of the principal is implied; as, where a draft, payable at a distant place, is left with' a bank for collection, it must be presumed that it is intended to be transmitted to a sub-agent at the place where it is payable, and not that the bank is to employ its own officers to proceed there, to obtain payment. Dorch. & Milt. Bank v. New England Bank, 1 Cush. 177.] * See Laussatt v, Lippincott, 6 Serg. & R, 386. § 16.] DELEGATION OP AGENCY. 15 stitute another person to dispose of the property.^ In short, the true doctrine, wliich is to be deduced from the decisions is, (and it is entirely coincident with the dictates of natural justice), that the authority is exclusively personal, unless, from the express language used, or from the fair presumptions, growing out of the particular transaction, or of the usage of trade, a broader power was intended to be conferred on the agent.^ § 15. But although it is regularly true in our law (for it seems to have been otherwise in tlie civil law), that an agent cannot, without such express or implied permission, delegate his authori- ty, so far as the principal is concerned ; yet the substituted agent may still be responsible to the original agent for his acts under the substitution, inasmuch as the latter is, in some cases, respon- sible to the principal for the acts of the sub-agent.^ And this is upon the same enlarged principle, which governs in the civil law ; that the act is not to be treated as void between the agent and his substitute, unless, indeed, the principal should interfere and prohibit the substitute from acting. " Si quis mandaverit alicui gerenda negotia ejus, qui ipse sibi mandaverat, habebit mandati actionem, quia et ipse tenetur ; tenetur autem quia agere potest." * § 16. We have thus seen, that, for the most part, where a party is of ability to do an act himself, he may do it by an attor- ney or agent. But there are cases, in wliich tlie act miist be done by an agent or attorney, and cannot be done by the prin- cipal.^ Thus, for example, an aggregate corporation, being a mere artificial being, cannot act, except througli the instrumen- tality of an agent or attorney, either specially pointed out by the 1 See Cockran «. Irlam, 2 M. & Selw. 301, 803, note ; Goswell' v. Dunk- ley, 1 Str. 680, 681 ; Bromley v. Coxwell, 2 Bos. & Pull. 438 ; Gray v. Mur- ray, 3 John. Ch. 167, 178; Laussatt v. Lippincott, 6 Serg. & R. 386; Post, § 110. ' 1 Bell, Comm. 388 (4th ed.) ; Id. p. 482 (6th ed.) ; Ersk. Inst. B. 3, tit. 3, § 34; 2 Kent, Coinm. Lect. 41, p. 633 (4th ed.) ; Mark ». Bowers, 16 Martin, 95; 1 Domat, B. 1, tit. 16, § 3, art. 2,3; Cockran v. Irlam, 2 M. & Selw. 301, 303, note; Catlin v. Bell, 4 Camp. 188, 184; Commercial Bank of Lake Erie v. Norton, 1 Hill, 605. ' Post, §§ 201, 217, 321, 322. * Dig. Lib. 17, tit. 1, 1. 8, § 3; Ersk. Inst. B. 3, tit. 3, § 34; Pothier, Pand. Lib. 17, tit. 1, n. 23 ; Ante, § 13, and note. See also Murray v. Toland, 3 John. Ch. 573 ; Post, § 217. » Post, § 201. 16 AGENCY. [CH. II, act of incorporation, or specially authorized by the corporation to act in its behalf.^ And, therefore, such a corporation cannot levy a fine, or acknowledge a deed, or appear in a suit, except by an attorney or agent. ^ And the like rule existed in the civil law, for it was one of the privileges of a corporation (universitas) by the civil law, to act, by means of an agent or attorney, who was known by the name of actor, or procurator, or, more familiarly, by the name of syndic. " Quibus autem permissum est corpus habere collegii, societatis, &c., et actorem, sive syndicum, per quem, tamquam in republic^,, quod' commuuiter agi fierique opor- teat, agatur, fiat." ^ § 17. Let us, in the next place, proceed to the consideration of the nature and extent of the authority, which may be thus dele- gated to an agent. It is commonly divided into two sorts ; (1.) a special agency ; (2.) a general agency. A special agency properly exists, when there is a delegation of authority to do a single act ; a general agency properly exists where there is a delegation to do all acts connected with a particular trade, business or employ- ment.* Thus, a person, who is authorized by his principal to execute a particular deed, or to sign a particular contract, or to purchase a particular parcel of mercliandise, is a special agent. But a person, who is authorized by his principal to execute all deeds, sign all contracts, or purchase all goods required in a par- ticular trade, business, or employment, is a general agent in that trade, business, or employment. § 18. A person is sometimes (although perhaps not with entire accuracy) called a general agent, who is not appointed with powers so general, as those above mentioned; but who has a general authority in regard to a particular object or thing ; as, ' Co. Lite. 66 b. ^ Com. Dig. Attorney, C. 2. ' Dig. Lib. 4, tit. 4, 1. 1, § 1; Id. 1. 6, § 1; Pothier, Pand. Lib. 3, tit. 4. n. 3, 9 ; Vicat. VooabuL Syndicus ; Heineoc. ad Pand. P. 1 Lib 3 tit 3 § 419 ; Id. tit. 4, § 439 ; Pothier on Oblig. n. 49. ' ■ > * 3 Chitty on Com. & Mauuf. 198, 199; Paley on Agency, Lloyd (3d ed.), 2; Id. 199, 200; 2 Kent, Comm. Lect. 41, pp. 620, 621 (4th ed ) ■ Parker v. Kett, 1 Salk. 96, 97; Whitehead v. Tuekett, 16 East 408- An- derson V. Coonley, 21 Wend. 279; Farmers' & Mechanics Bank v Butchers & Drovers' Bank, 16 N. Y. 148; Tomlinson v. Collet, 3 Blackf. Ind 436- Walker v. Skipwith, Meigs's Tenn. 602; Savage v. Rix, 9 N. H 263- Post' §§ 126-134, especially notes to §§ 127-133. • «• ^oo , rost, § 20.] GENERAL AND SPECIAL. 17 for example, to buy and sell a particular parcel of goods, or to negotiate a particular note or bill ; his agency not being limited in the buying or selling such goods, or negotiating sucli note or bill, to any particular mode of doing it.^ So an agent, who is appointed to do a particular thing in a prescribed mode, is often called a special agent, as contradistinguished from a general agent.^ § 19. On the other hand (although this is not the ordinary commercial sense), a person is sometimes said to be a special agent, whose authority, although it extends to do acts generally in a particular business or employment, is yet qualified and restrained by limitations, conditions, and instructions of a special nature. In such a case the agent is deemed, as to persons deal- ing with him in ignorance of such special limitations, conditions, and instructions, to be a general agent ; although, as between himself and his principal, he may be deemed a special agent.^ In short, the true distinction (as generally recognized) between a general and a special agent (or, as he is sometimes called, a particular agent), is this: a general agency does not import an unqualified authority, but that which is derived from a multitude of instances, or in the general course of an employment or busi- ness ; whereas a special agency is confined to an individual trans- action.* § 20. The same distinction was well known in the civil law. Thus, it is said, " Procurator autem vel omnium rerum, vel unius rei esse potest." ^ And although it seems to have been at one time doubted, whether a procuration was properly created by the mere delegation of authority to do a single act, yet that doubt was ' Paley on Agency, by Lloyd (Sd ed.), 2; Id. 199; Whitehead w.Tuckett, 15 East, 408; 1 Domat, B. l,tit. 16, § 8, art. 10; Anderson v. Coonley, 21 Wend. 279. See Loudon Savings Society v. Hagerstown Bank, 36 Penn. St. 498. ' Andrews v. Kneeland, 6 Cowen, 354. ' See Fenn v. Harrison, 3 T. R. 757, 760, 762 ; Whitehead v. Tuckett, 15 East, 400, 408 ; 3 Chitty on Comm. & Manuf. 198, 199 ; 2 Kent, Comm. Lect. 41, pp. .620, 621 (4th ed.) ; Anderson v. Coonley, 21 Wend. 279; Bryant v. Moore, 26 Maine 84; Johnson v. Jones, 4 Barbour, Sup. Ct. (N. Y.) 369. " Whitehead v. Tuckett, 15 East, 400, 408 ; Paley on Agency, by Lloyd (3d edit), 199 and note ; Id. 200, 201 ; Andrews v. Kneeland, 6 Cowen, 354. 6 Dig. Lib. 3, tit. 3, 1. 1, § 1 ; 1 Domat, B. 1, tit. 16, § 1, art. 7 ; Pothier, Pand. Lib. 3, tit. 3, n. 3-8. AGENCY. 2 18 AGENCY. [CH. II. deemed to be unfounded ; " Sed verius est, eum quoque procu- ratorem esse, qui ad unam rem datus sit." ^ And a procuration might either be limited or unlimited ; conditional or absolute ; re- strictive or unqualified ; provided it was not unlawful ; " Item, Mandatum et in diem differi, et sub conditione contrahi potest. Rei turpis nullum mandatum est."^ § 21. At present it is not necessary to say moro upon the sub- ject of general agency and special agency, as contradistinguished from each other ; inasmuch as it will hereafter occur in other connections.^ But the distinction between them, as to tlae rights and responsibilities, the duties and the obligations, both of prin- cipals and agents, is very important to be carefully observed, as the doctrines applicable to the one sometimes totally fail in regard to the other .^ It may, perhaps, be well to add (what, indeed, has been already intimated), that general agents are to be care- fully distinguished from universal agents ; that is, from agents, who may be appointed to do all the acts, which the principal can personally do, and which he may lawfully delegate the power to another to do. Such an universal agency may potentially exist ; but it must be of the very rarest occurrence. And, indeed, it is difficult to conceive of the existence of such an agency practically, inasmuch as it would be to make such an agent the complete master, not merely dux facti, but dominus rerum, the complete disposer of all tlie rights and property of the principal. It is very certain, that the law will not from any general expressions, how- ever broad, infer the existence of any such unusual agency ; but it will rather construe them as restrained to the principal busi- ness of the party, in respect to which, it is presumed, his inten- tion to delegate the authority was principally directed.^ Thus, ' Dig. Lib. 3, tit. 3, 1. 7, § 1 ; 1 Domat, B. 1, tit. 16, § 1, art. 7 ; 1 Stair Inst, by Brodie, B. 1, tit. 12, § 11. Heineccius says : Et quia non ambigitur, vel omnium negotiorum bonorumque administrationem, vel unius rei, mandare posse; procuratores etiam in universales et singulares dividuntur. Heinecc. ad Pand. P. 1, Lib. 3, tit. 3, § 417. By universales in this passage, Heineccius means, what we are accustomed to call, general agents ; and by singulares, special agents. ' Dig. Lib. 17, tit. 1, 1. 1, § 3, 1. 6, § 3, Lib. 3, tit. 8, 1. 1 ; Id. Pothier, Pand. Lib. 17, tit. 3, n. 3, 19, 20. Note, § 11. ' Post, §§ 126-134. * See Post, §§ 126-134. ' See 3 Chitty on Comm. & Manuf. 198-200 ; Paley on Agency, by Lloyd 192-198 ; Post, §§ 62-68. <= )' 1 y. § 22.] GENERAL AND SPECIAL. 19 for example, if a merchant, about to go abroad for temporary purposes, should delegate to an agent his full and entire authority to sell any of his personal property, or to buy any property for him, or on his account, or to make any contracts, and also to do any other acts whatsoever, which he could, if personally present ; this general language would be construed to apply only to buying or selling, connected with his ordinary business as a merchant ; and would not, at least without some more specific designation, be construed to apply to a sale of his household furniture, or his library, or the common utensils, provisions, and other necessaries used in his family. Much loss would it be construed to authorize any contracts to be made, which would be of an extraordinary or personal character, such as a contract of marriage, or a marriage settlement, or a sale of such things, as would break up and destroy his business as a merchant in his particular trade.^ § 22. And in relation to general agency, one man may be a general agent for his principal in one business, and another may be his general agent in another business ; and in such case each agent will be limited in his authority to the particular business within the scope of his peculiar agency. Thus, for example, if a man should be at once a banker and a merchant, carrying on each business distinctly, with separate clerks and agents for each branch, an agent in the one would not be deemed to possess any authority to act in the other ; although each would, or might, in a legal sense, be deemed a general agent. 1 See 3 Chitty on Coram. & Manuf. 199, 200 ; Kilgour v. Finlyson, 1 H. Bl. 155 ; Havard v. Baillie, 2 H. Bl. 618 ; Hay v. Goldsmidt, 1 Taunt. 3i9 ; Atwood V. Munnings, 7 B. & Cressw. 278 ; Cochran v. Newton, 6 Denio, 49. See, when an agent has authority to borrow money or not, Hawtwayne v. Bourne, 7 Mees. & Wels. 695, 699 ; Kelley v. Lindsey, 7 Gray, 287. [* So a general agent to lease lands cannot by leasing his own land with that of his principal, make his principal, without his knowledge or assent, a joint lessor of the agent's lands so as to make the principal jointly liable with him upon the stipulations in the lease in reference to the agent's property as well as the prin- cipal's. La Point v. Scott, 36 Vt. 603.] 20 AGENCY. [CH. III. CHiLPTER III. . DIFFERENT KINDS OP AGENTS. [* § 23. Attention to the distinction between the different kinds of agents, important. 24. Attorneys in law, defined. 26. Attorneys in fact, defined. 26. Commercial agents enumerated. 27. Auctioneer, definition of, duties, authority, and rights, — for certain purposes agent of seller and buyer. 28. Broker, definition o^ duties and authority. 29. Broker cannot ordinarily delegate his authority. 30. Brokers well known in the civil law. 31. Primarily he is the agent of the party originally employing him. 32. Various classes of brokers enumerated. 32 a. Broker sometimes a factor also in the same transaction. 33. Factor, definition of duties and authority. 34. Eights and authority superior to a broker. 34 a. Cannot delegate his authority. 35. Ships'-Husbands, definition of, duties, generally the general agent of the owners in regard to all the affairs of the ship in the home port. 36. Masters of ships — duties of — may sometimes delegate' their authority — may also act as supercargo. 37. Partners — mutual agents of each other in all things which respect the partnership property.] § 23. In the next place, as to the different kinds or classes of Agents. It will be found very difficult to enumerate them all in detail ; but it may not be without use to state some of those which have acquired a distinctive appellation ; as it may serve to give us a more exact view of the nature of the rights, the obliga- tions, and the duties of each. For the want of a due discriinina- tiou in this respect, very erroneous inferences are frequently deduced from the reported decisions ; which decisions, however correct with reference to the class of agents embraced therein, will often be found to mislead, unless taken with the implied and tacit qualifications, applicable to that peculiar class of agency. § 24. First. Attorneys. This class is divisible into two kinds, differing very widely in their rights, duties, obligations, and responsibilities : (1.) Attorneys in law ; (2.) Attorneys in fact.i The former class includes those persons who are ordinarily intrusted with the management of suits and controversies in courts of law and other judicial tribunals ; answering to the Pro- ' Heinecc. ad Pand. P. 1, Lib. 3, tit: 3, § 416. § 24.] DIFFERENT KINDS OP AGENTS. 21 curatores ad litem of the civil law in many particulars, although not perhaps in all respects clothed with as extensive an aiithority.^ Among these are attorneys in courts of common law, solicitors in courts of equity, and proctors in courts of admiralty and in the ecclesiastical courts.^ These are wholly distinguishable from advocates or counsel in the Roman and English courts, although not generally in the American courts. In the Roman courts, the office of an advocate was, and in the English courts it is, purely honorary and gratuitous ; that is to say, he is not entitled to charge or recover against his client any compensation for his ser- vices ; as an attorney, solicitor, or proctor may. But whatever he receives for his services, is deemed to be an honorary dona- tion, — quiddam honorarium.^ Indeed, the Roman law, at least under the emperors, affected to treat it as a degradation of the order to serve for hire, or in any other manner than gratuitously and for reputation. " Apxid Urbem autem Romanam etiam honora- tis, qui hoc officium putarerint eligendum, eo usque liceat orare, quibus maluerint ; videlicet, ut non ad turpe compendium stipem- que deformem hsec arripiatur occasio ; sed laudis per eam angmenta quserantur. Nam si lucro pecuni§,que capiantur, veluti abjecti atque degeneres inter vilissimos numerabuntur."* The theory of the English law was, perhaps, originally the same ; but it has ceased to be known, except as a mere theory. As advocates are not in England entitled to recover their fees in a suit at law, they receive them in advance of their services, not indeed as a mere compensation pro opere et labor e; but as a liberal emolument Qquiddam honorarium') for the performance of the highest intel- lectual and moral duties for their clients in courts of justice ; ^ a ' 3 Black. Comm. 25 ; Co. Litt. 61, 52 a. In the civil law, no person could appoint a procurator ad litem, except he was the dominus litis. The plaintiff himself (actor) was, before the contestation of the suit (ante litem contestatam) , the sole dominus litis. But his procurator, after the contestation of the suit, became dominus litis ; and then, but not before, he could delegate his authority to another procurator. Quod quis sibi debitum exigere tibi mandavit ante litis contestationem, tu alii petendum mandare non potes. Cod. Lib. 2, tit. 13, 1. 8 ; Heinecc. ad Pand. P. \, Lib. 3, tit. 3, §§ 421-423, 431 ; Pothier, Pand. Lib. 3, tit. 3, n. 21. « 3 Bl. Comm. 25. ' 3 Bl. Comm. 27-29 ; Comm. Dig. Attorney, B. 18. * Cod. Lib. 2, tit. 6, 1. 6, § 5 ; Pothier, Pand. Lib. 3, tit. 1, n. 17. ' 3 Bl. Comm. 28 ; 2 Domat, Public Law, B. 2, tit. 6, § 2, art. 6. 2 22 AGENCY. [CH. III. trust, which, to the honor of the Bar, it may be said, they dis- charge with the most fearless and exalted ability and iudepen- dence.i Nor, indeed, can one easily forget the dignified admoni- tion of the Eoman law on the true duties of an advocate, an admonition which should be present to the thoughts of every per- son practising in any court of justice. " Ante omnia autem uni- versi Advocati ita prsebeant patrocinia jurgantibus, ut non ultra, quam litium poscit utilitas in licentiam conviciandi, et male dicendi temeritatem prorumpant. Agant, quod causa desiderat ; ■ temperent se ab injuria,. Nemo ex industriS, protrahat jurgium." ^ But, as it is not our design in the presenf work to consider the rights, powers, duties, and obligations of persons acting as attor- neys, or as advocates, in courts of justice, this subject will not be further pursued. ^ ' I cannot but quote here, with great pleasure, the remarks made upon a very recent occasion tjy Lord Langdale in Hutchinson v. Stephens (1 Keen, 668). "With respect to the task (said he), which I may be considered to have imposed upon counsel, I wish to observe, that it arises from the confidence, which long experience induces me to repose in them, and from a sense which I entertain of the truly honorable and important services which they constantly perform as ministers of justice, acting in aid of the judge, before whom they practise. No counsel supposes himself to be the mere advocate or agent of his client, to gain a victory, if he can, on a particular occasion. The zeal and the arguments of every counsel, knowing what is due to himself and his honorable profession, are qualified, not only by considerations aifecting his own character as a man of honor, experience, and learning, but also by considerations affect- ing the general interests of justice. It is to these considerations that I apply myself; and I am far from thinking that any counsel, who attends here, will knowingly violate, or silently permit to be violated, any established rule of the Court, to promote the purpose of any client, or refuse to afford me the assist- ance, which I ask in these cases." ■' Cod. Lib. 2, tit. 6, 1. 6, §§ 1, 4 ; Pothier, Pand. Lib! 3, tit. 1, n. 20 ; 2 Do- mat, B. 2, tit. 6, § 2, art. 1-5. ' See Coram. Dig. Attorney, B. 1-20. Domat has well remarked, that all these rules of the duties of advocates may be reduced to two maxims : one, never to defend a cause which is unjust ; and the other, not to defend just causes but by the way of justice and truth. And these two maxims are so essential to the duties of advocates, and so indispensably necessary, that, al- though they seem to be rather maxims of religion, they are, however, in proper terms, expressed in the Laws of the Code and the Digest. 2 Domat, by Strahan, B. 2, tit. 6, § 2, sub. fin. p. 620 (ed. 1822). Patroni autem causarum, &c., juramentum priEstent, quod omni quidem virtute sua omnique ope, quod verum et justum existimaverint, clientibus suis inferre procurabunt ; nihil studii relin- quentes, quod sibi possibile est. Kon autem credita sibi causa cognita, quod § 26.] DIFFERENT KINDS OP AGENTS. 23 § 25. Secondly. Attorneys in pact. These are so called in contradistinction to attorneys in law, or procuratores ad litem, and may include all other agents employed in any business, or to do any act or acts in pais for another.^ But it is sometimes used to designate persons, who act under a special agency, or a special letter of attorney, so that they are appointed in factum, for the deed, or act, required to be done.^ § 26. The most common classes of commercial agents are auc- improba sit, vel penitus desperata, et ex mendacibus allegationibus composita, ipsi scientes prudentesque mala consoientiS liti patrocinabuntur ; sed et si cer- tamine procedente aliquid tale sit cognitum fuerit, a causa reoedent, ab hujus- modi communione sese penitus separantes. Such is the oath and such the doctrine prescribed to lawyers in the days of Justinian. Cod. Lib. 8, tit. 1, 1. 14, § 1. How well worthy is the doctrine for the consideration of Christian lawyers in our day ! [The responsibility of attorneys is discussed in an inter- esting manner by Lord Campbell, in a case before the House of Lords. " In an action such as this," he says, " by the client against the professional adviser, to recover damages arising from the misconduct of the professional adviser, I apprehend there is no distinction whatever between the law of Scotland and the law of England. The law must be the same in all countries where law has been considered as a science. The professional adviser has never been sup- posed to guarantee the soundness of his advice. I am sure I should have been sorry, when I had the honor to practise at the bar of England, if barristers had been liable to such a responsibility. Though I was tolerably cautious in giving opinions, I have no doubt that I have repeatedly given erroneous opinions, and I think it was Mr. Justice Heath who said that it was a very difficult thing for a gentleman at the bar to be called upon to give his opinion, because it was calling, on him to conjecture what twelve other persons would say upon some points that had never before been determined. Well, then, this may happen in all grades of the profession of the law. Against the barrister in England, and the advocate in Scotland, luckily, no action can be maintained. But against the attorney, the professional adviser, or the procurator, an action may be main- tained. But it is only if he has been guilty of gross negligence, because it would be monstrous to say that he is responsible for even falling into what must be considered a mistake. You can only expect from him that he will be honest and diligent ; and if there is no fault to be found either with his integrity or dili- gence, that is all for which he is answerable. It would be utterly impossible that you could ever have a class of men who would give a guarantee binding them- selves, in giving legal advice and conducting suits at law, to be always in the right." Purves v. Landell, 12 Clark & Finnelly, 91. See also, Baikie v. Chandless, 3 Camp. 17 ; Pitt v. Holden, 4 Burr. 2060.] ' An act, in pais, is literally an act in the country ; but the phrase is tech- nically used to express any act done, which is not a matter of record or done in a court of record. 2 Black. Comm. 294. ' See Bacon's Abridg. Attorney. 24 AGENCY. [CH. III. tioneers, brokers, factors, consignees, supercargoes, ships'-hus- bands, masters of ships, and partners. Of each of these a few- words will be said in this place .^ § 27. First. Auctioneers.^ An auctioneer is a person, who is authorized to sell goods or merchandise at public auction or sale for a recompense, or (as it is commonly called) a commrssion. In two respects he differs from a mere broker. A broker may (as we shall presently see) buy, as well as sell ; ^ whereas an auc- tioneer can only sell. So, a broker cannot sell personally at pub- lic auction ; for that is the appropriate function of an auctioneer ; but he may sell at private sale, which power an auctioneer (as such) does not possess.* An auctioneer is primarily deemed to be the agent of the seller of the goods ; but for certain purposes he is also deemed to be the agent of both parties.^ Thus, by knocking down the goods sold to the person who is the highest bidder, and inserting his name in his book or memorandum, as such, he is considered as the agent of both parties ; and the mem- orandum so made by him will bind both parties, as being a mem- orandum sufficiently signed by an agent of both parties within the statute of frauds. Before the knocking down of the goods, he is, indeed, exclusively the agent of the seller ; but after the knocking down, he becomes also the agent of the purchaser, and the latter is presumed to give him authority to write down his name as pur- chaser.^ An auctioneer has also a special property in the goods ' Mr. Bell, in his Commentaries on the Laws of Scotland, has remarked, that " In mercantile agency there is a vast variety of forms, in which the au- thority of a principal is daily delegated to others. Besides the occasional authority, by proouratory, or procuration, to accept or draw bills of exchange, the charge given to a clerk to manage a store or shop, which is called Institorial power, the extensive trust given to a shipmaster, called Exercitatorial power, the powers of factors, agents, and brokers, are all included within the contract." 1 Bell, Comm. 885 (4th ed.) ; Id. p. 476 (5th ed.). ' As to powers of Auctioneers, see post, §§ 107, 108. » Post, § 28. ' Wilkes V. Ellis, 2 H. Bl, 555 ; Daniel v. Adams, Ambl. 496. Auctioneers were sometimes called Brokers in our old law. Spelman, in his Glossary, Auctionarii, defines them thus ; Qui publicis subhastatiouibus prsesunt, Propote, et quos, Angli, Brokers, dicimus. See also Jacob's Law Diet. Brokers. ' See Johnson v. Roberts, 30 Eng. Law and Eq. 234. ' Post, § 108 ; Simon v. Motives, 3 Burr. 1921 ; Emmerson «. Heelis, 2 Taunt. 38, 48; Keneys v. troctor, 1 Jao. & Walk. 350; 3 Ves. & B. 67, 68 ; White v. Proctor, 4 Taunt. 209, 211 ; McComb v. Wright, 4 John. § 28.J DIFFERENT KINDS OP AGENTS. 25 sold by him, and a lien on the same and the proceeds thereof, for his commissions ; and he may sue the purchaser at the sale in his own name,^ as well as in the name of his principal.^ An auction- eer is also deemed personally a Tendor to the purchaser at the sale, unless at the time of the sale he discloses the name of his principal, and the transaction is treated as being exchisively between the principal and the vendee.^ An auctioneer can sell only for ready money, unless there be some usage of trade to sell on credit.* § 28. Secondly. Brokers. The true definition of a broker seems to be, that he is an agent, employed to make bargains and contracts between other persons, in matters of trade, commerce, or navigation, for a compensation, commonly called brokerage.^ Or, to use the brief but expressive language of an eminent judge, " A broker is one, who makes a bargain for another, and receives a commission for so doing." ^ Properly speaking, a broker is a mere negotiator between the other parties, and he never acts in Ch. 659 ; Hinde v. Whitehouse, 7 East, 558, 669 ; Bird v. Boulter, 4 B. & Adolph. 443 ; Buckmaster v. Harrop, 13 Ves. 472, 473 ; Henderson v. Barnwall, 1 Y. & Jerv. 389 ; Fairbrother v. Simmons, 5 B. & Aid. 333. In Williams v. Millington (1 H. Bl. 85), Mr. Justice Heath said, "Though he (an auctioneer) is an agent to some purposes, he is not so to all. He is an agent for each party in different things ; but not in the same thing. When he prescribes the rules of bidding, and the terms of the sale, he is the agent for the seller. But when he puts down the name of the buyer, he is agent for him only." ' Robinson v. Butter, 30 Eng. Law and Eq. 401 ; 4 El. & Bl. 954. ^ WilUams V. Millington, 1 H. Bl. 81, 84, 85 ; 3 Chitty on Comm.& Manuf. 210; Girard v. Taggard, 6 Serg. & Rawle, 19, 27. ' Mills V. Hunt, 20 Wend. 431 ; Franklin v. Lamond, 4 Com. B. 637 ; Jones V. Littledale, 6 Ad. & Ell. 486 ; Post, §§ 160 a, 266, 269, 270. ' Post, §§ 108, 209. * Com. Dig. Merchant, C. Terms de la Ley, Broker; Malyne, Lex. Mercat. 143 ; 1 Bell, Comm. 347, 386, 386, (4th ed.) ; Id. pp. 477, 478, 481, 483 (5th ed.) ; Wilkes v. Ellis, 2 H. Bl. 655 ; Jannen v. Green, 4 Burr. 2103 ; 2 Kent, Comm. Lect. 41, p. 622, note (d), (4th ed.). Cowel, in his Interpreter, gives the etymology of the word from the French word Broceur, Tritor, a person who breaks into small pieces, as if to say, he is a dealer in small wares. " In Pott V. Turner, 6 Bing. 702, 706, Lord Ch. Justice Tindal said, " A broker is one who makes a bargain for another, and receives a commission for so doing ; as, for instance, a stock-broker. But in common parlance one who receives payment of freights for the ship-owner, and negotiates for cargoes, is a broker.'' 26 AGENCY. [CH. III. his own name, but in the names of those who employ him.^ Where he is employed to buy or to sell goods, he is not intrusted with the custody or possession of them, and is not authorized to buy or to sell them in his own name.^ He is strictly, therefore, a middle man, or intermediate negotiator between the parties ; and for some purposes (as for the purpose of signing a contract within the statute of frauds) he is treated as the agent of both parties.^ Hence, when he is employed to buy and sell goods, he is accus- tomed to give to the buyer- a note of the sale, commonly called a sold note, and to the seller a like note, commonly called a bought note, in his own name, as agent of each, and thereby they are respectively bound, if he has not exceeded his authority.* Hence ' Baring v. Corrie, 2 B. & Aid. 137, 143, 148, 149. See also Kemble ». Atkins, 7 Taunt. 260 ; 2 Kent, Comm. Lect. 41, p. 622, note (d) (4th ed.) ; 1 Bell, Comm. pp. 346, 347, § 379 (4th ed.) ; Id. p. 38.5, § 409 : Id. 477, 478, 481, 483 (5th ed.). Domat has given a very full and exact description ac- cording to the sense of our law. " The engagement (says he) of a broker is like to that of a proxy, a factor, and other agent ; but vpith this difference, that, the broker being employed by persons who have opposite interests to manage, he is, as it were, agent both for the one and the other, to negotiate the commerce and affair in which he concerns himself. Thus, his engagement is twofold, and consists in being faithful to all the parties, in the execution of what every one of them intrusts him with. And his power is not to treat, but to explain the intentions of both parties, and to negotiate in such a manner, as to put those who employ him in a condition to treat together personally." 1 Domat, B. 1, tit. 17, § 1, art. 1. ' Baring v. Corrie, 2 B. & Aid. 137, 143, 148. As to his powers and duties, see post, §§ 107, 108. ^ Rucker v. Cammeyer, 1 Esp. 106 ; Hinde v. Whitehouse, 7 East, 658, 569 ; Kemble v. Atkins, 7 Taunt. 260 ; Henderson v. Barnwall, 1 Y. '& Jerv. 387 ; Beal v. McKiernan, 6 Louis. 407 ; Post, §§ 107, 108 ; Hinckley v. Arey, 27 Maine, 362. *Ibid. ; Hicks c. Hankin, 4 Esp. 114; Heyman v. Neale, 2 Camp. 337; Dickinson v. Lilwal, 1 Stark. 128; Gale v. Wells, 1 Carr. & Payne, 888; Gumming v. Roebuck, 1 Holt's N. P. 172; Grant v. Fletcher, 6 B. & Cressw. 436 ; Thornton v. Kemster, 5 Taunt. 786 ; 1 Bell, 347 (4th ed.) ; lb. pp. 477, 478 (5th ed.) ; Goom v. Aflalo, 6 B. & Cressw. 117. The name of both the buyer and the seller ought to appear upon the sale note given to the parties, though in practice the name of one party is sometimes omitted in the note given to him. Champion v. Plummer, 4 Bos. & Pull. 252 ; Picks V. Hankin, 4 Esp. 114, 115. I have given in the text the ordinary designation of the sale notes, as bought and sold notes. There is, however, some confusion in the books in the use of the terms, probably arising from the words of the instrument itself. Thus, in Baring v. Corrie (2 B. & Aid. 144), Lord Ch. Justice Abbott, speaking of the buyers in that case, says, " that they received a sale note, and were not required to sign a bought note." In the § 31.] DIFFERENT KINDS OF AGENTS. 27 also it is, that if a broker sells the goods of his principal in his own name, (without some special authority so to do,) inasmuch as he exceeds his proper authority, the principal will have the same rights and remedies against the purchaser, as if his name had been disclosed by the broker .^ § 29. A broker, being personally confided in, cannot ordinarily delegate his authority to a sub-agent, or clerk under him, or to any other person. His authority, therefore, to delegate it, if it exists at all, must arise from an express or an implied assent of the principal thereto.^ § 30. Brokers were a class of persons well known in the civil law under the description of proxenetce. Their functions, among the Romans, were not unlike those which are performed by them among all modern commercial nations ; for in all these nations, they are a known, if not a necessary, order of agents.^ " Sunt," says the Digest, " enim hujusmodi hominum, ut tarn in magna civitate, officinae. Est enim proxenetarum modus, qui emptioni- bus, venditionibus, commerciis, contractibus Ileitis utiles, non adeo improbabili more se exhibent."* They were entitled to charge a brokerage compensation ; and were not treated as or- dinarily incurring any personal liability by their intervention, unless there was some fraud on their part. Proxenetica jure licito petuntur. Si proxeneta intervenit faciendi nominis, ut multi Solent, videamus, an possit quasi mandator teneri ? Et non puto teneri. Quia hie monstrat magis nomen, quam mandat, tametsi laudet nomen.^ § 31. It has been already suggested, that a broker is for some purposes treated as the agent of both parties. But primarily he same case, Mr. Justice Bayley says, " that the brokers delivered to the plain- tiffs (the sellers) a sold note, exactly in the proper form, supposing them to have sold in their character as brokers ; and they delivered to the defendants (the buyers) a bought note, exactly suited to the case of their having sold as brokers, without disclosing the name of the seller." See the distinction in Freeman v. Loder, 11 Adolph. & Ellis, 589 ; Higgins v. Senior, 8 Mees. & Wels. 834, 836. ' Baring v. Corrie, 2 B. & Aid. 137, 143-146. ' Henderson v. Barnwall, 1 Y. & Jerv. 387 ; Cochran v. Irlam, 2 M. & S. 301, note ; Post, § 108. ' See 1 Domat, B. 1, tit. 17, Introd. and § 1, art. 1 ; Goom v. Aflalo, 6 B. & Cressw. 117 ; Henderson v. Barnwall, 1 Y. & Jerv. 387, 393, 394; Beawes, Lex Merc. Brokers, Vol. 1, p. 464 (6th ed.). " Dig. Lib. 60, tit. 14, 1. 3; 1 Domat, B. 1, tit. 17, § 1, art. 1. ' Dig. Lib. 50, tit. 14, 1. 1, 2 ; 1 Domat, B. 1, tit. 17, § 1, art. 2. 28 AGENCY. [CH. HI. is deemed merely the agent' of the party by whom he is originally employed ; and he becomes the agent of the other party only when the bargain or contract is definitively settled, as to its terms, between the principals ; ^ for, as a middle man, he is not intrusted to fix the terms, but merely to interpret (as it is sometimes phrased) between the principals.^ It would be a fraud in a bro- ker to act for both parties, concealing his agency for one from the other, in a case where he was intrusted by both with a discretion, as to buying and selling, and of course where his judgment was relied on. Thus, if A should employ a broker to sell goods for him for the highest price he could get, and his judgment should be confided in ; and B should at the same time employ the same broker to purchase the like goods at the lowest price, for which they could be obtained ; it is plain, that, if this mutual agency were concealed, it might operate as a complete surprise upon the confidence of both parties, and would thus be a fraud upon them. Indeed, it would be utterly incompatible with the duties of a bro- ker to act for both under such circumstances ; since, for all real purposes, he would be both buyer and seller ; and the law will not tolerate any man in becoming both buyer and seller, where the interests of third persons are concerned.^ [And a broker who so acts without informing his principals cannot recover a commis- sion for his services ; and evidence of a custom among brokers to charge commissions in such cases is incompetent.*] • Kirmits v. Surry, Paley on Agency, by Lloyd, 171, note (p) ; Henderson V. Barnwall, 1 Y, & Jerv. 387, 393, 399 ; Hinckley v. Arey, 27 Maine, 362. = Dig. Lib. 50, tit. 14, 1. 1, 2 ; 1 Domat, B. 1, tit. 17, § 1, art. 1. ' See Wright v. Dannah, 2 Camp. 203 ; Fairbrother v. Simmons, 5 B. & Aid. 333; Paley on Agency, by Lloyd (3d ed.), 10; [Pugsley v. Murray, 4 E.D. Smith (N.Y.), 245.] ■* [Farnsworth v. Hemmer, 1 Allen 494 (Mass.), Bigelow, C. J., there said : " The principle on which rests the well-settled doctrine, that a man cannot become the purchaser of property for his own use and benefit which is intrusted to him to sell, is equally applicable when the same person, without the authority or consent of the parties interested, undertakes to act as the agent of both vendor and purchaser. The law does not allow a man to assume relations so essentially inconsistent and repugnant to each other. The duty of an agent for a vendor is to sell the property at the highest price ; of the agent of the purchaser to buy it for the lowest. These duties are so utterly irreconcilable and conflicting that they cannot beperformed by the same person without great danger that the rights of one principal will be sacrificed to promote the inter- ests of the other, or that neither of them will enjoy the benefit of a discreet and faithful exercise of the trust reposed in the agent. As it cannot be supposed that a vendor and purchaser would employ the same person to act as their § 32.] DIFFERENT KINDS OP AGENTS. 29 § 32. There are various sorts of brokers now employed in com- mercial affairs, whose transactions form or may form, a distinct and independent business. Thus, for example, there are exchange and money brokers, stock brokers, ship brokers, merchandise bro- kers, and insurance brokers, who are respectively employed in buy- ing and selling bills of exchange, or promissory notes, or goods, or stocks, or ships and cargoes ; or in procuring insurance and settling losses, or in procuring freights or charter-parties. ^ . § 32 a. The .character of a broker is also sometimes combined in the same person with that of a factor.^ In such cases we should carefully distinguish between his acts in the one character and in the other ; as the same rules do not always precisely apply to each. There is nothing in our law to prevent a broker from becoming also a factor in the same transaction, if he chooses to undertake the mixed character. It is not commonly the duty of agent to buy and sell the same property, it is clear that it operates as a surprise on both parties, and is a breach of the trust and confidence intended to be reposed in the agent by them respectively, if his intent to act as agent of both in the same transaction is concealed from them. It is of the essence of his contract that he will use his best skill and judgnjent to promote the interest of his employer. This he cannot do, where he acts for two persons whose interests are essentially adverse. He is therefore guilty • of a breach of his contract. Nor is this all. He commits a fraud on his principals in undertaking, without their assent or knowledge, to act as their mutual agent, because he conceals from them an essential fact, entirely within his own knowledge, which he was bound in the exercise of good faith to disclose- to them. Story on Agency, § 31; Copeland v. Mercantile Ins. Co. 6 Pick. 198, 204; Pugsley v. Murray, 4 E. D. Smith, 245 ; Rupp v. Sampson, 16 Gray (not yet published). " Such being the well-settled rule of law, it follows that the evidence offered by the plaintiff was inadmissible. A custom or usage, to be legal and valid, must be reasonable and consistent with good morals and sound policy, so that parties may be supposed to have made their contracts with reference to it. If such a usage is shown to exist, then it becomes the law by which the rights of the parties are to be regulated and governed. But the usage on which the plaintiff relied was wanting in these essential elements. It would be unreason- able, because, if established, it would operate to prevent the faithful fulfilment of the contract of agency. It would be contrary to good morals and sound policy, because it would tend to sanction an unwarrantable concealment of facts essential to a contract, and operate as a fraud on parties who had a right to rely on the confidence reposed in their agents."] ' See Beawes, Lex Merc. Vol. 1, pp. 466-467 (6th ed.) ; 1 Bell, Comm. 386, 386 (4th ed.) ; Id. pp. 477, 478, 481, 483 (6th ed.) ; 1 Liverm. on Agency, 60-77 (ed. 1818); Malyne, Lex Merc. 86, 91. = 1 Bell, Comm. B. 3, P. 1, ch. 4, art. 409, p. 386 (4th ed.) ; Id. pp. 477, 478 (5th ed.). 30 AGENCY. [CH, III. a broker, unless there are words importing that he is to perform such a duty, to see to the delivery of the goods on the payment of the price. But it may be the duty of a broker, under the employ- ment he has undertaken, to see to the delivery of the goods and the payment of the price.^ § 33. Tliirdly. Factors. A factor is commonly said to be an agent employed to sell goods or merchandise, consigned or deliv- ered to him by or for his principal, for a compensation, commonly called factorage or commission. ^ Hence he is often called a com- mission-merchant or consignee ; the goods received by him for sale are called a consignment ; ^ and when, for an additional com- pensation in case of sale, he undertakes to guarantee to his prin- cipal the payment of the debt due by the buyer, he is said to receive a del credere commission.* The phrase del credere, is • Brown V. Boorman, 11 Clarke & Fin. 1, 44. ' Com. Dig. Merchant, B. ; Mai. Lex Merc. 81 ; Beawes, Lex Merc. Fac- tors, Vol. 1, p. 44 (6th ed.) ; 3 Chitty on Comm. & Manuf. 193 ; 1 Liverm. on Agency, 68 (ed. 1818) ; 1 Domat, B. 1, tit. 17, Introd. ; 2 Kent, Comm. Lect. 41, p. 622, note {d), (Uh. ed.) ; 1 Bell, Comm. 385, §§ 408, 409 (4th ed.) ; Id. pp. 477, 478 (6th ed.) ; Post, § 110 to 114. In Baring v. Corrie, 2 B. & Aid. 143, Lord Chief Justice Abbott defines a factor thus : "A factor is a person, to whom goods are consigned for sale, by a merchant residing abroad, or at a distance from the place of sale." This is a correct definition, as to some sorts of factors. But a factor may be to buy, as well as to sell ; and he may reside in the same place with his principal as well as at a dis- tance. 1 Bell, Comm. 385, §409 ; Id. 386, § 410 (4th ed.) ; Id. pp. 477, 478 (6th ed.). " 1 Bell, Comm. 212 ; Id. 385, §§ 408, 469 ; Id. 386 ; § 410 ; Id. pp. 477, 478 (5th ed.). The description here given of a factor answers precisely to that of a commission merchant or consignee for sale. But it has been well observed, that there are different sorts of consignees ; some have a power to sell, manage, and dispose of the property, subject only to the rights of the con- signor. Others have a mere naked right to take possession. Per Lord Eldon, in Lucena v. Crawford, 4 Bos. & Pull. 324; De Forest ». Fulton Ins. Co. 1 Hall, Rep. 84; Post, §§ 112, 215, 328. * Chitty on Comm. & Manuf. 193, 194 ; Grove v. Dubois, 1 T. R. 112 ; 1 Bell, Comm. 289, § 313 ; Id. 387, § 411 (4th ed.) ; Id. pp. 477, 478 (6th ed.) ; Morris v. Cleasby, 4 M. & Selw. 676. It was laid down in Grove v. Dubois, 1 T. R. 112, 113, that a commission del credere amounts to an absolute engagement to the principal from the factor, and makes him liable in the first instance. But the doctrine of that case on this point seems incorrect. A factor, with a del credere commission, is liable to the principal, if the buyer fails to pay, or is incapable of paying. But he is not primarily the debtor. On the contrary, the principal may sue the buyer in his own name, notwithstanding the § 34. J DIFFERENT KINDS OF AGENTS. 31 borrowed from the Italian language, in which its signification is exactly equivalent to our word, guaranty, or warranty.^ A factor is called a home factor, when he resides in the same state or country with his principal ; and he is called a foreign factor, when he resides in a different state or country.^ Sometimes, in voya- ges abroad, an agent accompanies the cargo, to whom it is con- signed for sale ; and who is to purchase a return cargo out of the proceeds. In such cases the agent is properly a factor, .and is usually called a supercargo.^ A factor may now ordinarily sell goods on. credit, in all cases where there is no usage to the con- trary.* § 34. A factor differs from a broker in some important particu- lars. A factor may buy and sell in his own name, as well as in the name of his principal. A broker (as we have seen) is always bound to buy and sell in the name of his principal.* A factor is intrusted with the possession, management, control, and disposal of the goods, to be bought or sold, and has a special property in them, and a lien on them.^ A broker, on the contrary, usually del credere commission ; so that the latter amounts to no more than a guar- anty. See Gale v. Comber, 7 Taunt. 668 ; Peele v. Northoote, 7 Taunt. 478 ; Morris v. Cleasby, 4 M. & Selw. 666, 674, 675 ; Thompson v. Perkins, 3 Mason, 232; 2 Kent, Comm. Lect. 41, pp. 624, 626, note (e), (4th ed.) ; Holbrook «. Wight, 24 Wend. 169. ' Ibid. " 3 Chitty on Comm. & Manuf. 193, 194; 1 Beawes, Lex Merc. 44 (6th ed.) ; 1 Bell, Coram. 385, 386, §§ 408, 409 (4th ed.) ; Id. pp. 475, 478 (6th ed.) ; Ersk. Inst. B. 3, tit. 3, § 34. ' 1 Beawes, Lex Merc. 44, 47 (6th ed.) ; 1 Liverm. on Agency, 69, 70 ; 1 Bell, Comm. 386 (4th edit.) ; Id. pp. 477, 478 (5th ed.) ; 1 Domat, B. 1, tit. 16, § 3, art. 2. Beawes gives the following description of them: " Super- cargoes are persons employed by commercial companies, or private merchants, to take charge of the cargoes they export to foreign countries, to sell them there to the best advantage, and to purchase proper commodities to relade the ships on their return home. For this reason, supercargoes generally go out and return home with the ships on board of which they were embarked, and therein differ from factors, who reside abroad, at the settlements of the public companies, for whom they act." 1 Beawes, Lex Merc. 47 (6th ed.). * Post, §§ 60, 110, 209. » Ante, §§ 28, 31 ; Baring v. Corrie, 2 B. & Aid. 143, 147, 148 ; 3 Chitty on Comm. & Manuf. 193; Id. 210, 211, 241; 1 Bell, Comm. 212- Id. 385, 386, §§ 408, 409, 41P (4th ed.) ; Id. pp. 466, 478 (6th ed.) ; 3 Kent, Comm. Lect. 41, p. 622, note {d), (4th ed.) ; 1 Domat, B. 1, tit. 17, § 1, art. 1. « Post, §§ 111, 112, 374 ; Holbrook v. Wight, 24 Wend. 169 ; Bryce v. 32 AGENCY. [CH. III. has no such possession, management, control, or disposal of the goods, and consequently has no such special property or lien.^ § 34 a. A factor has not, any more than a broker, a power to delegate his authority to another person, unless it is conferred by the usages of trade, or by the assent of his principal, express or implied. And this also was a rule adopted to some extent, in the civil law, in relation to some classes of agents, such as clerks in warehouses and shops (institores') ; for although the master of a ship was permitted, for the benefit of trade, to substitute another person as master, the same rule did not apply to mere institorial agents.^ " Quippe res patitur, ut de conditione quis institoris dis- Brooks. 26 Wend. 367 ; Post, § 88i ; Jordan v. James, 5 Hamm. Ohio, 99 ; Marfield v. Douglas, 1 Sandford, Superior Ct. 360. ' Ibid. ; Paley on Agency, by Lloyd, 13 ; 1 Bell, Coram. 385, 386, §§ 408, 409, 410 (4th ed.) ; Id. pp. 477, 478 (5th ed.). When a broker is intrusted with negotiable securities, indorsed in blank, for sale, he becomes rather a factor than a broker ; for he is then intrusted with the disposal and control of them, and may, by his negotiation of them, pass a good title to them. Indeed, in practical business, the two characters are often confounded, and a broker is often a factor and a merchant, as well as a general agent. Paley on Agency, by Lloyd, 13, and note (a) ; Pickering v. Busk, 15 East, 38, 43 ; Ante, §§ 32, 33, note 4. When a broker becomes possessed of the thing, about which he is employed, he acquires equally with a factor a lien for his commissions ; as, for example, an insurance broker, having possession of a policy. 3 Chitty on Comm. & Manuf. 210, 211, 541 ; Blunt, Commercial Dig. ch. 15, p. 230. Mr. Bell has remarked, that "Sometimes agents or factors act as the ostensible vendors of property belonging to merchants residents in the same place, having warehouses and places fit for exhibiting the goods for sale. Sometimes they act as factors both for buyer and seller; the sale being perfected, and the delivery transferred, by delivery of the bills for the price, and an entry in the factor's books to the debit of the one party and the credit of the other. The character of factor and broker is frequently combined ; the broker having pos- session of what he is employed to sell, or being empowered to obtain possession of what he is employed to purchase. Properly speaking, in these cases, he is a factor." 1 Bell, Comm. 386, § 409 (4th ed.) ; Id. p. 478 (5th ed.). * Ante, 13 ; Catlin v. Ball, 4 Camp. 183 ; Bromley v. Coxwell, 2 Bos. & Pull. 438 ; Cochran v. Irlam, 2 M. & Selw. 301, n. ; Soley v. Rathbone, 2 M. & Selw. 298 a; Dig. Lib. 14, tit. 1, 1. 1 ; Pothier, Pand. Lib. 14, tit. 1, n. 2, 3 ; 1 Domat, B. 1, tit. 16, § 3, art. 3; 1 Liverm. on Agency, 66 (ed. 1818). Domat, after stating the right of the master to delegate his authority, adds, as his interpretation of the text of the Digest ; ' ' But this rule is not to be extended indifferently to factors and others, set over any commerce or business at land, where the necessity of treating with them is not the same, and where it is easier to learn who is the person employed as factor, and how far his power extends." 1 Domat, B. 1, tit. 16, § 3, art. 8, Strahan's translation. In the civil law, the § 35.] DIFFERENT KINDS OF AGENTS. 33 piciat, et sic contrahat. In navis magistro non ita, nam interdum locus, tempns, non potitur plenius deliberandi consilium." ^ § 35. Fourthly. Ships'-Husbands. A ship's-husband is a common expressive maritime phrase, to denote a peculiar sort of agency, created and delegated by the owner of a ship, in regard to the repairs, equipment, management, and other concerns of the ship.^ A ship's-husband is sometimes appointed merely for the pur- pose of conducting the ordinary and necessary concerns of the ship on her return to her proper home port; such as making the proper entries at the custom-house ; superintending the landing of the cargo ; procuring the proper surveys of damage ; settling the freight ; and other incidents connected with the discharge of the cargo, and the termination of the voyage. But, generally, the person, designated as ship's-husband, has a much larger author- ity, and is understood to be the general agent of the owners, in regard to all the affairs of the ship in the home port.^ As such general agent, he is intrusted with authority to direct all proper repairs and equipments, and outfits for the ship ; to hire the offi- cers and crew ; to enter into contracts for the freight or charter of the ship, if that is her usual employment ; and to do all other acts necessary and proper to dispatch her for and on her intended voyage.* But his authority does not extend to the procuring of any policy of insurance on the ship, either in port, or for the voy- age, without some express or implied assent of the owner .^ word institor was sometimes used for agent generally. Cuicunque igitur negotio prsepositus sit Institor recte appellabitur. Dig. Lib. 14, tit. 3, 1. 5, Prelim. ; Pothier, Pand. Lib. 14, tit. 3, n. 5. ' Dig. Lib. 14, tit. 1, 1. 1, Prelim. ^ Abbott on Shipp. P. 1, ch. 3, § 2, p. 69 (ed. 1829) ; 1 Bell, Comm. §§ 426, 428, p. 410 (4th ed.) ; Id. pp. 603, 504 (5th ed.) ; Story on Partner- ship, § 418. 5 See Abbott on Shipp. P. 1, ch. 3, § 2, p. 69 (ed. 1829) ; 1 Bell, Comm. §§ 426-429, pp. 410, 411 (4th ed.) ; Id. pp. 603, 504 (6th ed.). * 1 Bell, Comm. §§ 426, 427, 428, pp. 410, 411 (4th ed.) ; Id. pp. 603, 504 (6th ed.) ; 2 Kent, Comm. Lect. 45, p. 157 (4th ed.) ; 1 Liverm. on Agency, 72, 73 (ed. 1818). * French v. Backhouse, 5 Burr. 2127 ; Pale'y on Agency, by Lloyd, 23, note (8) ; Id. 108, 109 ; Abbott on Shipp. p. 1, ch. 3, § 2, p. 69 ; Id. § 8, pp. 76, 77; Marsh, on Ins. B. 1, ch. 8, § 2-; Beawes (Lex. Mercat. 47, 6th ed.) has the following description of the powers and duties of ships'-husbands : " Ships'-husbands (says he), a class of agents so called, whose chief employ- ment in capital seaport towns, particularly in the port of London, "is, to pur- AGENCT. 3 34 . AGENCY. [CH. III. § 36. Fifthly. Masters op Ships. This is a well known class of agents, possessing what some foreign jurists have called the exercitorial power, in relation to the equipment, outfit, repair, management, navigation, and usual employment of the ship com- mitted to their charge.^, The master of a ship is not, indeed, as the language of these jurists might at first sight be thought to chase the ship's stores for the voyage ; to procure cargoes on freight ; to settle the terms and obtain policies of insurance ; to receive the amount .of the freight both at home and abroad ; to pay the captain or master his salary, and disburse- ments for the ship's use ; and, finally, to make out an account for all these transactions for his employers, the owners of ships, to whom he is, as it were, a steward at land, as the officer bearing that name is, on board, when the ship is at sea." Mr. Bell gives the following description of their duties: "The duties of the ships'-husband are : 1. To see to the proper outfit of the vessel in the repairs adequate to the voyage, and in the tackle and furniture necessary for a sea-worthy ship. 2. To have a proper master,' mate, and crew for the ship, so that in this respect it shall be sea-worthy. 8. To see to the due furnishing of provisions and stores, according to the necessities of the voyage. 4. To see to the regularity of all the clearances from the custom-house, and the regularity of the registry. 5. To settle the contracts, and provide for the payment of the furnishings, which are requisite in the performance of those duties. 6. To enter into proper charter-parties, or engage the vessel for general freight, under the usual conditions ; and to settle for freight, and adjust averages with the merchant ; and 7. To preserve the proper certificates, surveys, and docu- ments, in case of future disputes with insurers or freighters, and to keep regu- lar books of the ship." 1 Bell, Comm. 410, § 428 (4th ed.-) ; Id. p. 504 (5th ed.). He then adds, " His powers, where not expressly limited, may be described generally as those requisite to the performance of the duties now enumerated. It may be observed, however, 1. That, without special powers, he cannot borrow money generally for the use of the ship ; though he may set- tle the accounts of the creditors for furnishings, or grant bills for them, which will form debts against the concern, whether he has funds in his hands or not, ■with which he might have paid them. 2. That, although he may, in the genferal case, levy the freight, which is, by the bill of lading, payable on the delivery of the goods, it would seem, that he will not have power to take bills for the freight, and give up the possession and lien over the cargo, unless it has been so settled by charter-party, or unless he has special authority to give such indulgence. 3. That, under general authority as ship's-husband, he has no power to insure or to bind the. owners for premiums ; this requiring a special authority. 4. That, as the power of the master to enter into contracts of affreightment is super- seded in the port of the owners, so is it by the presence of the ship's-husband, or the knowledge of the contracting parties that a ship's-husband has been appointed." 1 Bell, Comm. 411, § 429 (4th ed.) ; Id. pp. 604, 506 (6th ed.). ' Abbott on Shipp. P. 2, ch. 1, § 1 ; Id. ch. 2, §§ 1, 2, 4, 6, pp. 90-93 (ed. 1829) ; 1 Bell, Comm. 386, § 409 ; Id. pp. 605, 606 (5th ed.). § 36.] DIFFERENT KINDS OP AGENTS. 35 imply, for all purposes to be deemed, exercitor navis ; for that description properly applies only to the absolute owner, or to him who is the hirer or employer of the whole ship for the voyage, by a contract with the owner (dominus navis), or his agent, the mas- ter.^ The master of the ship in our law answers exactly to the description of the " magister navis " of the civil law. " Magistrum navis accipere debemus cui totius navis cura mandata est. Magis- trum autem accipimus, non solum, qiiem exercitor prseposuit, sed et eum quem magister." ^ And the master of the ship, by our law, as well as by the Roman law, possesses this power of appointing another person, as master, in his stead, and of delegating his authority, as master, to him, not indeed in all cases, nor in all places ; but in cases of necessity, or sudden emergencj' in a for- eign port, in the absence of the owner or employer or erf his authorized agent, whenever it may be necessary and proper for the welfare of the ship, and the due accomplishment of the voyage.^ ' Dig. Lib. 14, tit. 1, 1. 1 ; Dig. Lib. 4, 1. 9, §§ 1, 2 ; 1 Domat, B. 1, tit. 16, § 2, art. 1-4; Abbott on Shipp. P. 2, ch. 2, §3, and note {g), (ed. 1829). Exercitorem autem eum dicimus, ad quem obventiones et reditus omnes per- yeniunt, sive is dominus navis sit, sive a domino nayem per aversionem con- duxit, vel ad tempus, vel in perpetuum. Dig. Lib. 14, tit. 1, 1. 1, § 16 ; Pothier, Pand. Lib. 14, tit. 1, n. 1. Tlie words per aversionem conduxit, in this passage, mean a hiring of the whole ship. See Pothier, ubi supra, note (1). In the foreign laws, and especially in the early maritime Ordinances, the master of the ship is often designated as the patron of the ship. He is generally so called in the Consolato del Mare. See also 1 Bell, Comm. B. 3, P. 1, ch. 5, §§ 1, 432, p. 412 (4th ed.) ; Id. pp. 605, 606 (5th ed.) ; 1 Stair, Inst, by Brodie, B. 1, tit. 12, §§ 18, 19; Post, §§ 117-123, 294, 295, 315. " Dig. Lib. 14, tit. 1, 1. 1, § 1, 5 ; Pothier, Pand. Lib. 14, tit. 1, n. 1 ; Ab- bott on Shipp. P. 2, ch. 2, § 3, note {g), pp. 91, 92 (ed. 1829) ; 1 Liverm. on Agency, ch. 3, pp. 70, 71 (ed. 1818) ; 1 Domat, B. 1, tit. 16, § 3, art. 3 ; 3 Kent, Comm. Lect. 46, pp. 160, 161 (4th ed.). 3 See 1 Domat, B. 1, tit. 16, § 3, art. 3 ; 1 Bell, Comm. (4th ed.) B. 3, ch. 5, §§ 1, 433, p. 413 (4th ed.) ; Id. pp. 605-508 (5th ed.) ; Pothier Traits de Chart. Part. n. 48, 49. The Digest lays down the rule, that the owner or employer is bound by the act of substitution, notwithstanding he has privately prohibited the master from doing the act. Quid tamen, si sic magis- trum prasposuit, ne alium ei licerit prseponere ? An adhuc Juliani Sententiam ' admittimus, videndum est. Finge, enim et nominatim eum prohibuisse, Ne Titio magistro utaris. Dicendum tamen erit, eo usque producendam utilitatem navigantium. Dig. Lib. 14, tit. 1, 1. 1, § 5; Pothier, Pand. Lib. 14, tit. 1, n. 3. Pothier on Charter Parties lays down the same rule. See the excellent translation by Mr. Gushing of Pothier on Marit.Contr. p. 28, n. 49, and the note of the learned editor, id. 142, note 17, who cites Kuricke to the same 36 AGENCY. [CH. III. Sometimes the master is also appointed supercargo, or consignee of the cargo, in which case the rights and duties of the latter character are superadded to- his ordinary rights and duties as master. But his acts as master, are at the same time to be treated as distinct from those, as supercargo, as if the acts, appro- priate to each character, were confided to different perspns.^ Upon this subject we shall again touch hereafter.^ But the fuU consideration of the rights, powers, and duties of masters of ships appropriately belongs to the law of shipping and navigation. § 37. Sixthly. Partners. Partners are mutual agents of each other in all things which respect the partnership business. And, accordingly, we find that generally the act of any one, in the name of all, or for the benefit of all, in their common busi- ness, is deemed obligatory upon all the partners.^ But, here again, it may be remarked, that the proper consideration of this subject belongs to the law of partnership ; and it may, for the present, be passed over, as it will occur in another connection hereafter. However, the rules applicable to it will be found in most, if not in all respects, to be the same as those which govern in relation to other cases of general agency.* effect. Roccus also asserts the same doctrine. See Ingersoll's Eoecus, on Ships and Freight; note 4, p. 18 ; 1 Domat, B. 1, tit. 16, § 3, art. 3 ; 1 Bell, Comm. p. 413, § 434 (4th ed.) ; .Id. pp. 505-608 (8th ed.). We have al- ready seen (ante, § 34, and note) that a broad distinction is taken between the right of the master of a ship to delegate his authority, and certain other classes of agents, such as Institores and Factors. ' Abbott on Shipp. by Story, P. 2, ch. 4, § 1, b, note (1), p. 134 (ed. 1829) ; Kendriok v. Delafield, 2 Caines, 67 ; Earle v. Roworoft, 8 East, 126, 140; Cook V. Commerc. Ins. Co. 11 John. 40; Crousillat v. Ball, 4 Dall. 294 ; The Vrou Judith, 1 Rob. 150 ; The St. Nicholas, 1 Wheat. 417 ; 1 Liverm. on Agency, 72 (ed. 1818); 1 Bell, Comm. (4th ed.) B. 3, P. 1, ch. 5, § 433, p. 413; Id. p. 506 (5th ed.); 3 Kent, Comm. Lect. 46, pp. 159- 164 (4th ed.) ; 1 Domat, B. 1, tit. 16, § 3, art. 3 ; Williams v. Nichols, 13 Wend. 58. ' Post, §§ 116-123, 294-300, 497. ' The same rule was applied in the civil law. Si plures navem exerceant, cum quolibet eorum in solidum agi potest. Ne in plures adversaries distrin- gatur, qui cum uno oontraxerit. Dig. Lib. 14, tit, 1, 1. 1, § 26 ; Id. 1. 2 ; 1 Domat, B. 1, tit. 16, § 3, art. 6, 7; Pothier, Pand. Lib. 14, tit. 1,'n. 10; Bar- ing V. Lyman, 1 Story, 396. * See Gow on Partn. ch. 2, § 2, pp. 53-91 (ed. 1825) ; Collyer on Partn. B. 2, t ^' ^J'J-J^^l "• ^- ^' '^- ^' §§ ^-^' PP- 211-240; 3 Kent, Comm. Lect. 43, p. 40 (4th ed.) ; Story on Partn. §§ 101-126 ; Post, §§ 124, 125. §§ 36-38.] JOINT PRINCIPALS AND AGENTS. 37 CHAPTER IV. JOINT PRINCIPALS AND JOINT AGENTS. [* § 38. In cases of two or more principals with several interests, no one of thera can appoint an agent for the others without their concurrence. 39. But a partner, as to the partnership husiness, is treated as the a^ent of all and capa- ble of binding all ; may appoint an agent. 40. Part-owners of ships, agents for each other to a limited extent ; majority may employ ship in case minority dissent. 41. Civil law substantially the same. 42. Where an authority is given by act of the principal, to two or more to do an act, all must concur. 43. Same strictness in principle in civil law. 44. Rule of common law not inflexible, and in commercial transactions liberally inter- preted.] § 38. Let us, in the next place, proceed to the consideration of cases, where there are two or more principals and two or more agents. (1.) In regard to cases of two or more principals, it may be generally laid down, that if they have a several and distinct interest, no one of them can ordinarily appoint an agent for all the others, without the assent and concurrence of all of them. Thus, for example, if two persons, by a joint instrument, should consign two parcels of goods to a consignee for sale, the one being the owner of one parcel, and the other the owner of the other par- cel ; in such a case, no joint interest, or joint agency, would be created ; but the consignee would become the several factor of each owner ; and of course the owner of one parcel could not give instructions to the consignee, which would bind both, unless by the express or implied consent of the other.i But this is true only upon the supposition that the consignee knows the facts ; for otherwise, he is at liberty to treat it as a joint consignment for the benefit of both ; and then the instructions of either will, like the instructions of a partner, be binding upon the other ; and both" ' See Hoar «. Dawes, Doug. 371 ; Coope ». Eyre, 1 H. Bl. 37 ; United Ins. Co. ». Scott, 1 John. 106. In many cases where a factor becomes the agent of different owners, and upon the sales made by him there is a loss, it will be apportioned among them all. Some cases to this effect are stated in Malyne, Lex Merc. 80, 81 ; MoUoy, de Jure Marit. B. 3, ch. 8, § 4 ; 1 Liverm. on Agency, § 2, pp. 86, 86 (ed. 1818) ; Corlies v. Gumming, 7 Cowen, 154 ; Post, § 179, note. 38 AGENCY. [CH. IV. will become jointly liable to him for his commissions and dis- bursements.^ § 39. Upon the same ground, where different persons have sep- arate and distinct, although undivided, interests in the same per- sonal property, one of them cannot appoint an agent for all. Thus, for example, one tenant in common of a chattel cannot appoint an agent for both, to sell the property .^ The same doc- trine is equally true with regard to joint tenants of a chattel.^ But in cases of partnership the rule is different ; for, as has been already intimated, each partner is treated, as to the partnership business, as the agent of all, and capable of binding all.* And each partner has an implied authority, at least in cases where the business is ordinarily done through the instrumentality of agents, to appoint an agent for the firm; Thus, one partner may consign a cargo to an agent or factor, for sales and returns ; and his let- ter of consignment and instructions will bind the firm in that respect, although his partners may be ignorant of his acts. This expansion of the principle of the delegation of a partner's author- ity seems indispensable to the security and facility of commercial operations.^ § 40. In cases of part-owners of ships, there is some peculiarity in the law, growing out of the necessary adaptations of it to the exigencies and conveniences of commerce. Part-owners of ships are tenants in common, holding distinct but undivided interests ; and each is deemed the agent of the others, as to the ordinary repairs, employments, and business of the ship, in the absence of any known dissent.^ But if any part-owner dissents, the others cannot bind his interest by their acts as agents, at least where the other party has notice of the dissent. A majority of the owners in interest have, however, a right to employ the ship, in case the minority dissent ; and they may appoint a master of the ship, not- ' See 1 Domat, B. 1, tit. 15, § 2, art. 5. = See Abbott on Shipp. P. 1, ch. 3, §§ 2-7, pp. 68-76. " See Com. Dig. Estates, K. 1, 6. " Ante, § 37 ; Story on Partnership, §§ 1, 101. 125. ' » See 3 Kent, Comm. Lect. 43, pp. 41) 44, 45 (4th ed.) ; Story on Partn. ch. 7, §§ 101-125. « See 2 Bell, Comm. B. 7, ch. 2, §§ 4, 1222, 1223, p. 638 (4th ed.) ; Id. pp. 656, 656 (5th ed.) ; Story on Partn. §§ 412-440 ; Curling v. Robertson, 7 Mann. & Gr. 341. §§ 39-41.] JOINT PRINCIPALS AND AGENTS. 39 withstanding such dissent.^ And the master so appointed will, virtute officii, become entitled to bind all the owners by his acts in the ordinary business of the ship, unless the party dealing with him has notice of such dissent,^ or the dissenting owners have, by proper proceedings in the court of admiralty, placed themselves in a position not to be deemed owners for the voyage, undertaken by the majority.^ § 41. The civil law adopted a policy substantially the same. If there were several owners or employers of a ship, each of them was liable in solido, and not merely in proportion to his share, for all the acts of the others in relation to the common concerns of the ship ; and the master was treated as the common agent of all, and entitled to bind all. " Si plures navem exerceant, cum quoli- bet eorum in solidum agi potest. Nee quicquam facere, quotam quisque portionem in nave habeat ; eumque qui prsestiterit, societa- tis judicio a cseteris consecuturum.* Sed si plures exerceant,' unum autem de niimero suo magistrum facerint, hujus nomine in solidum poterunt conveniri." ^ And this rule applied not only in cases of ' Abbott on Shipp. P. 1, ch. 3, § 2-9, pp. 68-77, and notes to Amer. ed. 1829 ; Id. P. 2. ch. 4, ■§§ 1, 6, note to p. 133 ; 1 Bell, Comm. B. 3, P. 1, ch. 5, § 433, p. 412 (4th ed.) ; Id. pp. 506, 507 (5th ed.) ; Story on Partn. §§ 418- 452. « Ibid. ^ Abbott on Shipp. P. 1, ch. 3, § 4, pp. 70-72, 74, note (1), (Amer. ed. 1829) ; Id. P. 2, ch. 2, § 2, pp. 90, 91 ; Story on Partn. §§ 427-440. ■> Dig. Lib, 14, tit. 1, 1. 1, § 26 ; Id. 1. 2, 1. 3, 1. 4, § 1 ; Pothier, Pand. Lib. 14, tit. 1, n. 10 ; Pothier on Oblig. n. 450. ' Dig. Lib. 14, tit. 1, 1. 4, § 1 ; Id. tit. 3, 1. 13, § 2 ; Pothier, Pand. Lib.l4, tit. 1, n. 10, 11, 13 ; Id. tit. 3, n. 19 ; Heinecc. ad Pand. P. 4, Lib. 14, tit.. 1, § 140; 1 Voet, ad Pand. Lib. 14, tit. 1, § 6; 1 Domat, B. 1, tit. 16, § 3, art. ■6, 7 ; Ersk. Inst. B. 3, tit. 3, §§ 43, 45. There are some real or apparent exceptions to the generality of the rule ; for it is said, almost in the same con- nection ; Si tamen plures per se navem exerceant, pro portionibus exercitionis conveniuntur ; neque enim invicem sui magistri videntur. Dig. Lib. 14, tit. 1, 1. 4; 1 Domat, B. 1, tit. 16, § 3, art. 7. From this passage it would seem, that although each was liable for the whole charge, where the contract was made by a master appointed on behalf of all ; yet, where they all acted in the ship's business without any master, each was liable only for his share or propor- tion. Probably this was applied to cases, where the party, dealing with them, knew the several interest of each, and contracted with each in regard to his share only. Voet, in commenting upon this passage, uses the following lan- guage : Nisi singula per se navem exerceant sine magistri ministerio, tunc enim ; quia invicem sui magistri non sunt, pro portionibus Exercitionis singuli conve- 40 AGENCY. [CH. IV. contracts made by the master with strangers, but in contracts made with one of the owners or employers. " Si unus ex his exercitoribus cum magistro navis contraxerit, agere cum aliis exercitoribus poterit." ^ § 42. (2.) In regard to two or more agents. It is a general rule of the common law, that where an authority is given by the act of the principal ^ to two or more persons to do an act, the act is valid to bind the principal, only when all of them concur in doing it ; for the authority is construed strictly, and the power is understood to be joint and not several.^ Hence it is, that if a let- ter of attorney is made to two persons, to give or to'receive livery, both must concur in the act, or the- livery is void.* So, if an authority is given to two persons jointly to sell the property of the principal, one of them cannot separately execute the authority.^ Indeed, so strictly is the authority construed, that if it be given to three persons jointly and severally, two caimot properly execute it ; but it must be done by one, or by all.^ However, the rule of niendi forent. 1 Voet, Comm. Lib. 14, tit. 1, § 6. See also Pothier, Pand. Lib. 14, tit. 1, n. 10, 11 ; Ersk. List. B. 8, tit. 3, § 46, n. 13. Among the maritime nations of the continent, Heineccius seems to think that the rule, that all the employers shall be liable in solido, does not prevail (vix datur) ; at least that it does not prevail in Holland. Heinecc. ad Pand. P. 3, Lib. 14, tit. 1, § 142. See Pothier on Oblig. n. 450, 451 ; Ersk. Inst. B. 3, tit. 3, §45. ' Dig. Lib. 14, tit. 1, 1. 6, § 2 ; Pothier, Pand. Lib. 14, tit. 1, n. 9-11, 13. " It is otherwise as to an authority conferred by law. Jewett v. Alton, 7 N. H. 253 ; Scott v. Detroit Society, 1 Dougl. (Mich.) 119 ; Caldwell v. Har- rison, 11 Ala. 755. [* Generally, where power for a public purpose is delegated to a certain number, the decision of the majority governs, though it is otherwise in the case of private trusts. Soens v. Racine, 10 Wis. 271.] ' Inhab. of Parish in Sutton v. Cole, 3 Pick. 232 ; Damon v. Inhab. of Granby, 2 Pick. 345; Kupferu. Inhab. of South Parish in Augusta, 12 Mass. 185 ; Low V. Perkins, 10 Verm. 532 ; Despatch Line of Packets v. Bellamy Manufact. Co. 12 N. H. 226 ; Post, § 139 a ; Woolsey v. Tompkins, 23 Wend. 324 ; Johnston v. Bingham, 9 Watts & Serg. 66 ; Heard v. March, 12 Cush. 580 ; Cross v. The United States, 24 Boston Law Rep. 224 ; [* Rol- lins V. Phelps, 6 Min. 463.] * Co. Litt. 49 b, 112 b, 413, and Harg. n. 2, id. 181b; Com. Dig. AUomey, C. 11 ; Green v. Miller, 6 John. 39. ' Copeland v. Merch. Ins. Co. 6 Pick. 198; Post, § 139 a. « Co. Litt. 181 b ; Com. Dig. Attorney, C. 11 ; 2 Roll. Abridg. Feoffment, p. 8, B. 1. 40 ; Bacon, Abridg. Authority, C. See Guthrie v. Armstrong, 6 B. & Aid. 628. This doctrine is regularly true in relation to private agencies only ; for in public agencies an authority executed by a majority would be held §§ 41-44.J JOINT PRINCIPALS AND AGENTS. 41 interpretation is not so. rigid, as to overcome tiae apparent intent of tlie party, if the words can be so construed, as to reach the case. Thus, if an authority be given to A. and B., or either of them, a joint execution, or a several execution by either of tliem, will be a valid execution of it.^ So, a power of attorney by a party to fifteen persons named therein, as his attorneys, "jointly and separately for him and in his name, to sign and order all such policies as they, his said attorneys, or any of them" should jointly and separately think proper, has been held to make a policy, executed by four of these persons, binding upon the principal.^ [But an authoTity to B. and A. B. to use the principal's name as an indorser, can be executed only by the two persons jointly.^] § 43. The same strictness in principle, although not perhaps the same strictness in the construction of the language of the authority, prevailed in the - civil law ; for in that law the agent was bound to follow the terms of the agency. " Diligenter fines mandati custodiendi sunt.* Conditio autem prsepositionis servanda est. Quid enim, si certa lege, vel interventu cujusdam personse vel sub pignore, voluit cum eo contrahi, vel ad certam rem ; aequissi- mum erit,id servari,in quo prsepositus est."^ And if the author- ity was delegated to several,' care was to be taken to ascertain whether all were reqiiired to act together, or whether one alone might act ; for otherwise the act of one would be void. " Item, si plures habuit Institores ; vel cum omnibus simul contrahi voluit, vel cum uno solo." ^ § 44. But although the rule of the common law is thus strict, obligatory, and a good execution of it. Lord Coke (Co. Litt. 181 b) takes noticfe of this distinction and says, "Secondly, there is a diversity between authorities created by the party for private causes, and authority created by law, for execution of justice." 1 Roll. Abridg. 329, 1. 5 ; Com. Dig. Attorney, C. 16 ; Bac. Abridg. Authority, C. See also Green v. Miller, 6 Johns. 39 ; Grindley v. Barker, 1 Bos. & Pull. 229, 234; The King v. Beeston, 3 T. E. 692 ; Sprague v. Bailey, 19 Pick. 436 ; Williams v. Lunenburgh, 21 Pick. 76 ; Martin v. Lemon, 26 Conn. 192 ; People v. Batehelor, 28 Barb. 311. ' Co. Litt. 49 b ; Dyer, 62. = Guthrie v. Armstrong, 6 B. & Aid. 628. ' Union Bank v. Beirne, 1 Grat. 226. * Dig. Lib. 17, tit. 1, 1. 6 ; Post, §§ 70, 87, 88, 174. = Dig. Lib. 14, tit. 3, 1. 11, § 5; Pothier, Pand. Lib. 14, tit. 3, n.l6; Post, §§ 70, 174. « Dig. Lib. 14, tit. 3, 1. 11, § 6 ; Pothier, Pand. Lib. 14, tit. 3, n. 16 ; 1 Do- mat, B. 1, tit. 15, § 3, art. 14; 1 Stair, Inst, by Brodie, B. 1, tit. 12, § 13. 42 AGENCY. [CH. T. yet it is not inflexible, and in commercial transactions a more lib- eral interpretation in favor of trade is admitted, as thereby public confidence, as well as general convenience, is best consulted.^ Hence it is, that, in cases of a joint consignment of goods for sale to two factors (whether they are partners or not) , each of them is understood to possess the whole power over the goods for the purposes of the consignment ; for it has been well said, that every consignment to two factors jointly, imports a consent by the con- signor for them to trust one another ; and to deliver over the goods from one to the other for the purpose of sale.^ On the other hand, such joint factors are co-obligors, or co-contractors, and, as such, are jointly accountable, and answerable for one another for the whole.^ And this rule is in entire coincidence with the civil law, which makes joint factors and other agents responsible in solido for each other. " Duobus quis mandavit nego- tiorum administrationem. Quassitum est, an unusquisque man- dati judicio in solidum teneatur ? Respondi, unumquemque pro solido conveniri debere, dummodo ab utroque non amplius debito exigatur." * CHAPTER V. APPOINTMENT OP AGENTS. [* § 45. Agency may be created by express words, or may be implied from acts of principal. 46. Appointment of attorney or agent not necessarily by deed. 47. General rule that agent or attorney may be appointed by parol. 48. Few exceptions in reference to transfer of real estate and creation of covenants under seal. ' See French v. Price, 24 Pick. 13. An authority to several assignees to receive money on a debt due to their assignor may be exercised by one assignee in behalf of all. Heard v. Lodge, 20 Pick. 69. " Godfrey v. Saunders, 3 Wils. 94, 114. See Willett v. Chambers, Cowp.' 814. See 1 Stair, Inst, by Brodie, B. 1, tit. 12, § 13. = Godfrey v. Saunders, 3 Wils. 94, 114. * Dig. Lib. 7, tit. 1, 1. 60, § 2; Pothier, Pand. Lib. 17, tit. 1, n. 24; 1 Doraat, B. 1, tit. 15, § 3, art. 13 ; 1 Stair, Inst, by Brodie, B. 1, tit. 12, §§ 13, 14. §§ 44-47.] APPOINTMENT OP AGENTS. 43 49. Generally, to do an act in the name of the principal, under seal, the authority must he under seal. 50. But it is not requisite that the authority to sign an unsealed writing should be by writing. 51. Parol authority to agent sufficient to enable him to execute deed in name of princi- pal if principal is present. 52. Authority of agent of a corporation implied from the adoption or recognition of his acts by the officers of the corporation. 53. Parol contracts of authorized agents, within legitimate purposes of corporation, are express contracts of corporation, and implied promises of corporation are enforced at law. 54. Various modes of appointing an attorney or agent; most usual by unwritten request, or by implication from acts. 55. Letter mode very frequent in all the comirum business of life and trade. 56. Nature and extent of agent's authority often wholly deduced from nature and extent of his usual employment.] § 45. In the next place, let us proceed to the consideration of the various modes in which agents may be appointed, and the nature and extent of the authority, whicli is, or may be, conferred on them. An agency may be created by the express words or acts of the principal, or it may be implied from his conduct and acquiescence. So, also, the nature and extent of the authority of an agent may be expressly given by a solemn, or an unsolemn instrument, or it may be implied or inferred from circumstances. § 46. First. As to the modes of appointment of an agent. It is sometimes laid down in our books, that the delegation of authority to an attorney, or agent, should be by a deed or instru- ment under seal, for the reason, that it may appear, that the attorney or substitute had a commission or power to represent the party ; and also, that it may appear, that the authority has been well pursued.! -q^^ i}\\s, as a general rule, is manifestly incor- rect ; and especially in regard to commercial transactions, where most matters of agency are transacted by informal instruments, or by verbal or implied delegations of authority.^ § 47. The general rule may, indeed, be laid down the other way ; that an agent or attorney may ordinarily be appointed by parol, in the broad sense of that term at the common law ; that is, by a verbal declaration in writing, not under seal, or by acts ' Bac. Abridg. Authority, A. See also Co. Litt. 62 a ; Com. Dig. Attorney, C. 5. = 3 Chitty on Com. & Manuf. 194, 195 ; 1 Liverm. on Agency, ch. 2, § 3, pp. 35-37 (ed. 1818) ; Long v. Colburn, 11 Mass. 97, 98 ; Post, §§ 54, 55, 84-106. 44 AGENCY. [CH. V. and implications.^ And it is absolutely indispensable for the exi- gencies of commercial business, that the rule should be so ; for otherwise, the most ordinary transactions, as well between per- sons in the same country, as between persons in foreign countries, would be greatly embarrassed, if not entirely obstructed. Thus, for example, if no one could sign or negotiate a promissory note, or bill of exchange, or sell or buy goods, or write a letter, or pro- cure a policy for another, unless by a formal authority under seal, the occasions for the multiplication of such instruments would be almost innumerable ; and would retard, at eyery step, the operations of merchants, and their factors, and clerks and other agents. The wisdom of the common law, therefore, has adopted and followed the rule on this subject prescribed in the civil law ; and has allowed the authority to be conferred by verbal delegations, by informal writings, and by implication as well as by deeds. " Procurator constitutus vel coram, vel per nuncium, vel per epistolam."^ The plain reason is, that all, which ought to be required in ordinary cases, is the proof of the consent of the principal. " Obligatio mandati consensu contrahentium con- sistit." 3 § 48. There are a few exceptions to the rule, proper to be con- sidered, which seem, however, to have their true foundation in the strict principles and solemnities, required by the common law in regard to the transfer of real estate, and to the creation of for- mal obligations and covenants under seal, rather than in any enlarged public policy, applicable to the business and concerns of modern society. § 49. One exception is, that, 'whenever any act of agency is required to be done in the name of the principal under seal, the authority to do the act must generally be conferred by an instru- ment under seal.* Thus, for example, if the principal should ' 3 Chitty on Com. & Manuf. 5; Id. pp. 194, 195 ; Rann v. Hughes, 7T.K. 350. ' Dig. Lib. 3, tit. 8, 1. 1, § 1 ; Pothier, Pand. Lib. 3, tit. 3, n. 3 ; 1 Domat, B. 1, tit. 16, § 1, art. 5. ' Dig. Lib. 17, tit. 1, 1. 1 ; Post, § 87 ; 1 Stair, Inst, by Brodie, B. 1, tit. 12, § 12. * Co. Litt. 48 b, and Harg. note (2); 2 Roll. Abridg. 8, pi. 4; Coombe's case, 9 Co. R. 75, 77 ; Harrison v. Jackson, 7 T. R. 207 ; Paley on Agency, by Lloyd, 157, 158 ; 3 Chitty on Com. and Manuf. 195 ; Damon v. Inhab. of Granby, 2 Pick. 346 ; 3 Kent, Comm. Lect. 41, p. 613 (4th ed.) ; Ban- §§ 47-49.] APPOINTMENT, HOW MADE. 45 authorize an agent to make a deed in his name, he must confer the authority on the agent by a deed.^ A mere unsealed writing orgee v. Hovey, 6 Mass. 11 ; Keed v. Van Ostrand, 1 Wend. 424 ; Hanford V. McNair, 9 Wend. 64 ; Blood v. Goodrich, 9 Wend. 68 ; Blood v. Good- rich, 12 Wend. 625 ; Cooper v. Rankin, 5 Binn. 613 ; Gordon v. Bulkley, 14 Serg. & Rawle, 331 ; Hunter v. Parker, 7 Mees. & Wels. 322, 343 ; Wells V. Evans, [20 Wend. 251 ; McNaughton v. Partridge, 11 Ohio, 223 ; Gum- mings V. Cassilly, 5 B.Monroe (Ken.), 75; post, §§ 242,262; Hibblewhite V. McMorine, 6 Mees. & Wels. 200, 214, 216. In this last case, the instru- ment was executed by the -grantor, and a blank was left for the name of the grantee, whose name was inserted by an agent appointed by parol ; and it was held, that the instrument was void, because the appointment was not made by deed. Mr. Baron Parke, in declaring the opinion of the court, said, "As- suming, then, the instrument to be a deed, it was wholly improper, if the name of the vendee was left out ; and to allow it to be afterwards filled up by an agent appointed by parol, and then delivered in the absence of the principal, as a deed, would be a violation of the principle, that an attorney, to execute and deliver a deed for another, must himself be appointed by deed. The only case cited in favor of the validity of a deed in blank, afterwards filled in, is- that of Texira v. Evans, where Lord Mansfield held, that a bond was valid, which was given, with the name of the obligee and sum in blank, to a broker to obtain money upon it, a,nd he borrowed a sum from the plaintiff, and then inserted his name and the sum. But this case is justly questioned by Mr. Preston, in his edition of Shepp. Touch. 68, ' as it assumes there could be an attorney without deed ; ' and we think it cannot be considered to be law. On the other hand, there are several authorities, that an instrument, which has a blank in it, which prevents it from having any operation, when it is sealed and delivered, cannot become a valid deed by being afterwards filled up. In Com. Dig. Fait, A. 1, it is said, ' If a deed be signed and sealed, and afterwards written, it is no deed.' To the same effect is Shepp. Touch. 64. In Weeks V. Maillardet, the instrument had nothing to operate upon, as it referred to a schedule as annexed, which was not annflxed at the time of execution ; and it was held, that the subsequent annexation, in the absence of one of the parties, did not give it operation as part of the deed. So, where a bail bond was executed, and a condition afterwards inserted, it was held bad as a bail bond. Powell V. Daff. The cases cited on the other side were all of them distinguish- able. In one, Hudson v. Revett, a blank in a part material was filled up ; but having been done in the presence of the party, and ratified by him, it was held that there was evidence of redelivery. In another. Doe v. Bingham, the blanks filled up were in no respect material to the operation of the deed, with respect to the party who executed before they were filled up, — as to him the deed was ' Worrall v. Munn, 1 Selden, 229. [But the authority of an agent to make a contract that his principal will convey land need not be under seal, nor even in writing. Eiley v. Minor, 29 Missouri, 439.] 46 AGENCY. [CH. V. ■vrill not be sufficient to make the execution of the deed by the agent valid at law ; although a court of equity might, in such a case, compel the principal to confirm and give validity to the deed.i The ground of this doctrine seems to be, that the power complete. In a third, Matson v. Booth, the point decided was, that a complete bond -was not rendered void by the subsequent addition of another obligor with the assent of all parties. It is unnecessary to go through the others which were cited on the argument. It is enough to say that there is none that shows that an instrument, which, when executed, is incapable of having any operation, and is no deed, can afterwards become a deed, by teing completed and deliv- ered by a stranger in the absence of the party who executed, and unauthorized by instrument under seal. In truth, this is an attempt to make a deed trans- ferable and negotiable like a bill of exchange or exchequer bill, which the law does not permit." In America, there has been some diversity of opinion ex- pressed on this latter point ; and it has been held in some of our courts, that a subsequent parol ratification would give validity to a deed, either executed in blank and filled up by the agent, or executed by an agent without authority, and then ratified by the principal by parol. See Skinner u. Dayton, 19 John. 512; Cady u. Shepherd, 11 Pick. 400; Gram v. Seton, 1 Hall, 262. See these cases cited more fully in Story on Partn. § 122, note ; Post, §§ 242, 252. But in every such case it is still held to be indispensable, that the instrument should be expressed in apt words so as to bind the principal ; for if it purports to be the deed of the agent in his own name, acting for his prin- cipal, no ratification, either by parol or otherwise, will make it the deed of the principal. Wells v. Evans, 20 Wend. 251 ; Post, §§ 264 a, 450. [* The effect of the negotiation of shares of joint stock companies, on the stock- exchange, with blank indorsements, has, first and last, been a good deal dis- cussed, both in the English and American courts. There is now no question but the name of the transferors in blank, will justify the transferee in writing a valid transfer of the shares over the signatures. But there has been an efltbrt made, by those most interested in stock speculations, to have such transfer convey a clean title, the same as the transfer of negotiable securities. But the courts have steadily resisted that doctrine, and generally hold that such transfer only conveys the title of the transferor, subject to all outstanding equities in others, the same as in the transfer of other securities, not negotiable. Athe- nsEura Life Ins. Co. v. Pooley, 3 De G. & G. 294; Agar v. Ath. Life Ins. Co. 6 W. K. C. B. 277 ; Tayler v. The Great Indian Peninsula Railw. Co. 4 De G. & G. 559 ; s.c. 5 Jur. n. s. 1087. And the same rule obtains in this country. Mechanics Bank v. N. Y. & N. H. Railw. Co. IS N. Y. 599 ; s. c. 4Duer, 480; Bridgeport Bank v. ST. Y. & N. H. R. Co. 30 Conn. 231; Sewall v. Boston Water Power Co. 4 Allen, 277. Shaw v. Spencer, 99 Mass.] . ' Harrison v. Jackson, 7 T. R. 208 ; Horsley «. Rush, cited ibid. ) Williams V. Walsby, 4 Esp. 220; Steiglitz v. Egginton,, Holt, N. P. 141; Berk- ley V. Hardy, 5 B. & Cressw. 355; Hanford v. McNair, 9 Wend. 64; McNaughten v. Partridge, 11 Ohio, 223; Ledbetter v. AValker, 31 Ala. 176. § 49. J APPOINTMENT, HOW MADE. 47 to execute an instrument under seal should be evidenced by an instrument of equal solemnity ; ^ by analogy to the known maxim of the common law, that a sealed contract can only be dissolved or released ^ by an instrument of as high a dignity or solemnity ; — " Eodem mode, quo oritur, eodem modo dissolvetur." ^ [Whether ' Ibid ; 3 Chitty on Com. & Manuf. 195. - ' [In Brookshire v. Brookshire, 8 Iredell, 74, it was Beld that a power of attorney, although under seal, might be revoked by parol. Nash, J., said, " It is not denied by the plaintiff, that, in this case, it-was within the power of the defendant to put an end to his agency, by revoking his authority. Indeed, this is a doctrine, so consonant with justice and common sense, that it requires no reasoning to prove it. But he contends, that it is a maxim of the common law, that every instrument must be revoked by one of equal dignity. It is true an instrument under seal cannot be released or discharged by an instrument not under seal or by parol, but we do not consider the rule as applicable to the revocation of powers of attorney, especially to such an one as we are now con- sidering. The authority of an agent is conferred at the mere will of his prin- cipal, and is to be executed for his benefit ; the principal, therefore, has the right to put an end to the agency whenever he pleases, and the agent has no right to insist upon acting, when the confidence at first reposed in him is with- drawn. In this case, it was not necessary to enable the plaintiff to execute his agency, that his power should be under seal ; one by parol, or by writing of any kind, would have been sufficient ; it certainly cannot require more form to revoke the power than to create it. Mr. Story, in his Treatise on Agency, page 606, lays it down that the revocation of a power may be, by a direct and formal declaration publicly made known, or by an informal writing, or by parol ; or it may be implied from circumstances ; and he nowhere intimates, nor do any of the authorities we have looked into, that when the power is created by deed, it must be revoked by deed. And, as was before remai-ked, the nature of the connection between the principal and the agent seems to be at war with such a principle. It is stated, by Mr. Story, in the same page, that an agency may be revoked by implication, and all the text-writers lay down the same doctrine. Thus, if another agent is appointed to execute pow- ers, previously intrusted to some otherperson, it is a revocation, in general, of the power of the latter. For this proposition, Mr. Story cites Copeland v. The Marine Insurance Company, 6 Pick. 199. In that case, it was decided that a power, given to one Pedrick to sell the interest of his principal in a vessel, was revoked by a subsequent letter of instruction to him and the master to sell. As then, an agent may be appointed by parol, and as the appointment of a subse- quent agent supersedes and revokes the powers previously granted to another, it follows, that the power of the latter, though created by deed, may be revoked by the principal, by parol. But the case in Pickering goes further. The case does not state, in so many words, that the power granted to Pedrick was under seal, but the facts set forth in the case show that was the fact ; and, if so, is a direct authority in this case."] ' Bac. Abridg. Bdease, A. 1 ; Neal v. SheaflSeld, Cro. Jac. 254 ; 2 Saund. 48 AGENTS. [CH. T. an instrument, to which an agent has unnecessarily affixed a seal, is binding upon the principal, when the agent's authority is not under seal, is left in some doubt upon the authorities ; but the reason of the thing seems to be in favor of its validity as a simple contract.^] § 50. The common law, however, has not entirely followed out the principle of this exception ; for it does not require, that an authority to an agent to sign an unsealed paper, or a written con- tract, should also be by a writing. Thus, for example, an agent may, by a verbal authority, or by a mere implied authority, sign or indorse promissory notes for another.^ And, even where a statute, such as the statute of frauds, requires an instrument to be in writing, in order to bind the party, he may, without writing, authorize an agent to sign it in his behalf, unless the statute posi- tively requires that the authority also should be in writing.^ So, R. 47; Williams's note (1.) ; Hayford v. Andrews, Cro. Eliz. 697. The civil law seems to have acted throughout upon this principle, as to the dissolution of contracts, although not as to the creation of agencies. Nihil (says the Digest), tarn naturile est, quam eo genere quidque dissolvere, quo coUigatum est. Ideo verborum obligatio verbis toUitur ; nudi consensus obligatio contrario consensu dissolvitur. Dig. Lib. 60, tit. 17, 1. 36. See also Pothier on Oblig. by Evans, n. 571-580. Prout quidque contractum est, ita et solvi debet; ut cum re contraxerimus, re solvi debet. Dig. Lib. 46, tit. 3, 1. 80. Pothier, Pand. Lib. 60, tit. 17, n. 1388. Et cum verbis aliquid contraximus, vel re, vel verbis, obligatio solvi debeat ; verbis, veluti cum acceptum promissori fit ; re, veluti cum solvit, quod promisit. Mque cum emptio, vel venditio, vel locatio con- tracta est; quoniam consensu nudo contrahi potest, etiam dissensu contrario dissolvi potest. Dig. Lib. 46, tit. 3, 1. 80; Post, §§ 51, 125. ' See Cooper v. Kankin, 5 Binney, 613 ; Worrall v. Munn, 1 Selden, 229 ; Despatch Line v. Bellamy Man. Co. 12 N. H. 205 ; Hunter v. Parker, 7 Mees. & Wels. 322 ; Randall v. Van Vechten, 19 John. 61 ; Mitchell v. St. Andrew's Bay Land Co. 4 Florida, 200 ; Wood v.'Auburn & Rochester Railroad, 4 Seld. 167; Ledbetter v. Walker, 31 Ala. 176; Bates v. Best, 13 B. Monr. 216. But see Baker v. Freeman, 35 Maine, 486; Wheeler v. Nevins, 34 Maine, 64. ' Paley on Agency, by Lloyd, 160, 161; Anon. 12 Mod. 564; Rawson v. Curtis, 19 111. 466. In Vanhorne v. Frick, 6 Serg. & Rawle, 90, the Supreme Court of Pennsylvania held, that a sale of lands, made by an agent under a parol authority, is void. ^ Coles V. Trecothiek, 9 Ves. 250; 2 Kent, Comm. Lect. 41, pp. 613, 614 (4th ed.); Higgins v. Senior, 8 Mees. & Wels. 844; Post, §§ 269, 270; Brookshire v. Brookshire, 8 Ired. 74. In the work of Mr. Paley on Agency, as edited by Mr. Lloyd, the rule and the distinction are stated in very clear terms. "For the purposes described in the 1st, 2d, and 3d sections of the statute of frauds, that is, for the purpose of making and creating leases, estates, § 51. J APPOINTMENT, HOW MADE. 49 where an agreement is in writing not under seal, it may be dis- solved by parol.^ § 51. And this very exception, as to instruments under seal, has an exception introduced into its generality ; for although a person cannot ordinarily sign a deed for and as the agent of another, without an authority given to him under seal ; ^ yet this is true only in the absence of the principal ; for if the principal is present, and verbally or impliedly authorizes the agent to fix his name to the deed, it becomes the deed of the principal ; and it is deemed, to all intents and purposes, as binding upon him, as if he had personally sealed and executed it.^ The distinction interests of freehold, or terms for years, or any uncertain interest, other than leases under three years, in messuages, manors, lands, tenements, or heredita- ments, by an agent, or for surrendering the same (except copyhold interests), the authority of the agent must be in writing. But for the purposes described by the fourth section, viz., 'to charge executors or administrators out of their own estates ; or to charge any for the debt or default of another ; or upon an agreement in consideration of marriage ; or upon any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them ; or upon any agreement not to be performed within a year ; ' although the several agree- ments recited must be in writing, signed by the party, or his agent thereunto by him lawfully authorized, the authority is not required to be in writing. And therefore the authority to contract for a lease, or other interest in land, need not be in writing, though the authority to sign the lease, or instrument, by which the interest passes, must be so. Neither does the 17th section, relating to the sale of goods above £10, which requires a note or memorandum in writ- ing, signed by the parties to be charged, or their agents thereunto lawfully authorized, make it necessary, that the authority should be in writing." Paley on Agency, ch. 3, pt. 1, § 1, n. 3, p. 168-260 (ed. 1833), by Lloyd; 2 Kent, Comm. Lect. 41, p. 614 (4th ed.). ' Legal V. Miller, 2 Ves. 299; Coles v. Trecothick, 9 Ves. 250; Mortlock V. Buller, 10 Ves. 311 ; Shaw v. Nudd, 8 Pick. 9 ; Botsford v. Burr, 2 John. Ch. 416; Clinan v. Cooke, 1 Sch. &.Lef. 22; Ante, § 49; Post, §§ 242, 262; Story on Partn. §§ 117-122; Gow on Partn. ch. 2, § 2, pp. 58-60, (3d ed.). ' But see Cady v. Shepherd, 11 Pick. 400, cited ante, § 49 ; and post §§ 242, 252, which is the other way. The doctrine, however, in Hibblewhite v. M'Morine, 6 Mees. & Wels. 200, 214, 216, is strongly in support of the text, and indeed seems firmly established, not only in England, but in most of the states of the union. 2 Kent, Comm. Lect. 41, p. 614 (4th ed.). [*But see Baum V. Dubois, 43 Penn. St. 260, where it is held that a contract in writing for the sale of land, signed and sealed by one as agent for the grantor, is valid though the agent's warrrmt is not sealed.] ' Ball V. Dunsterville, 4 T. K. 313,314; Lord Lovelace's case, W. Jones, 268; Hibblewhite v. M'Morine, 6 Mees. & Wels. 200, 214, 216; Gardner 50 AGENCY. [CH. V. may seem nice and refined ; but it proceeds upon the ground, that where the principal is present, the act of signing and sealing is to be deemed his personal act, as much as if he held the pen, and another person guided his hand and pressed it on the seal. § 52. Another exception founded upon the strict notions of the old common law, is, that the agent of a corporation must ordina- rily receive his appointment to do any act for the corporation by an instrument under the common seal of the corporation ; for (it has been said) a corporation cannot otherwise signify its assent to the agency, or the act, than under its common seal.^ But this doctrine, although perhaps regularly true under the old common law, in regard to the solemn acts of corporations, which by that law, are incapable of acting, except by some consent or act made known through its common seal, has been greatly modi- fied in modern times, and especially in relation to corporations created by charters of the crown or government, or by statutes. In cases of this sort, as the powers of the corporation to act depend essentially upon the modes pointed out by the charter, it is very clear, that an agent, appointed by the trustees, or directors, or other functionaries of the corporation, pursuant to the charter, would have full capacity to bind the corporation by a written vote.2 And as the appointment of an agent may not always be evidenced by the written vote of such functionaries, it is now the settled doctrine, at least in America, that it may be inferred and implied from the adoption or recognition of the acts of the agent by such functionaries, or by the corporation.^ Thus, for example, V. Gardner, 6 Cush. 488 ; King v. Longnor, 4 B. & Adolph. 647 ; 1 Nev. & Man. 576. » Comyn's Dig. Franchise, F. 12, F. 13 ; Paley on Agency, by Lloyd (3d ed.), 155, 156; East London Water "Works Co. ii. Bailey, 4 Bing. 283 286, 287. « See Smith v. Birmingham Gas Co. 1 Adolph. & Ellis, 526 ; Bates v. Bank of State of Alabama, 2 Ala. 245, n. s. ; Osborn v. Bank of United States, 9 Wheat. 738 ; 2 Kent, Comm. Lect. 33, pp. 288-291 (4th ed.) ; East London Water Works Co. v. Bailey, 4 Bing. 283; Slark v. Highgate Archway Co. 5 Taunt. 792; Broughton v. Manchester Water Works Co. 3 B. & Aid. I2; Murray v. East India Co. 6 B. & Aid. 204; Mayor, &c., of Ludlow v. Charlton, 6 Mees. & Wels. 815; London & Birm. Railway Co. v. Winter, 1 Craig & Phillips, 57; Hall v. Mayor, &c., of Swansea, 5 Adolph. & Ellis, N. s. 526. • Bank of United States «. Dandridge, 12 Wheat. 64, 69,70-72,74; Tarbor- ough V. Bank of England, 16 East, 6 ; Roe v. Dean, &c., of Rochester, 2 Camp. §§ 51-53.] APPOINTMENT, HOW MADE. 51 if the cashier of a bank should openly act as such in all the com- mon transactions of the bank, with the full knowledge and assent of the directors, his acts would be obligatory upon the bank, although there might be no written vote on record to establish his appointment.^ § 63. Indeed, in England, the rule itself has been subject to some relaxations from very early times. Thus, for example, it has been held, that for conveniency's sake, a corporation might act, in some ordinary matters, without seal ; as to retain a butler, or a cook, or a servant.^ And the courts have recently said that in cases of great necessity, they will imply an exception to the common rule ; as for example, where a corporation has wrong- fully received the plaintiff's money .^ So an agent, by an author- ity under seal, might bind the corporation by his agreement not under seal, if the agreement were within ihe scope of his author- ity.* In America, the general doctrine is now firmly established, that, wherever a corporation is acting within the scope of the 96; 2 Kent, Comm. Lect. 33, pp. 288-291 (4th ed.) ; Essex Turnpike Corpor. V. Collins, 8 Mass. 299 ; Clark v. Corporation of Washington, 12 Wheat. 40 ; Bank of the Metropolis v. Guttohliok, 14 Peters, 19 ; Fleck- ner v. Bank of the United States, 8 Wheat. 338 ; Danforth v. Schoharie & Duane Turnpike Co. 12 John. 227; Flint v. Chilton Co. 12 N. H. 430; Goodwin V. Union Screw Co. 34 N. H. 380. [ * A committee empowered by vote of a corporation to authorize the treasurer to convey real estate may communicate such authority orally. Hutchins v. Byrnes, 9 Gray, 367. See also, New York, &c., Telegraph Co. v. Dryburg, 35 Penn. St. 298.] ' Ibid. " Bank of Columbia v. Patterson's Adm'r. 7 Cranch, 299, 306 ; Bank of United States V. Dandridge, 12 Wheat. 69-71 ; Rex v. Biggs, 3 P. Will. 419, 424 ; Anon. 1 Salk. 191 ; Harper v. Charlesworth, 4 B. & Cressw. 690, 591 ; Yarborough V. Bank of England, 16 East, 6; Viner, Abridg., Corporation, K. ; Smith B.Birmingham Gas Co. 1 Adolph. & Ellis, '626; Paley on Agency, by Lloyd, 156, 156 ; East London Water Works Go. v. Bailey, 4 Bing. 283, 287 ; Comyn's Dig. F. 12, F. 13; Mayor, &c., of Ludlow v. Charlton, 6 Mees. & Wels. 815. ^ Hall V. Mayor, &c., of Swansea, 5 Adolph. & Ellis, n. s. 626. * Ibid. ; Murray v. East India Co. 5 B. & Aid. 204; Paley on Agency, by Lloyd (3d ed.), 165, 156; Bank of Columbia v. Patterson's Adm'r, 7 Cranch,' 299, 30"5, 306; Bank of United States v. Dandridge, 12 Wheat. 64, 67 75 ; Fleckner v. Bank of United States, 8 Wheat. 338 ; Danforth v. Sco- harie & Duane Turnpike Co. 12 John. 227; Mayor, &c., of Ludlow v. Charlton, 6 Mees. & Wels. 815. See also Metcalf & Perkins's Digest, title Corporation, ch. 1, § 146, (fee. ; Angell & Ames on Corporations, ch; 8, pp. 162-j 209 (2d ed.). 62 AGENCY. [CH. V. legitimate purposes of its institution, all parol contracts, made by its authorized agents, are express contracts of the corporation ; and all duties imposed upon it by law, and all services rendered, and benefits conferred at the request of its agents, raise an implied promise, for the enforcement of which an action will lie against the corporation.^ The same doctrine seems gradually to have found favor in England, and may now be deemed, after repeated and well considered adjudications, to be fully established, as the common law, at least, where the nature and business of corporations, created by charter or statute, constantly, if not daily, require contracts to be made to carry on its corporate opera- tions. Indeed, the doctrine seems almost indispensable to meet the common duties and exigencies of corporations, created by charters or by statutes in modern times ; and it affords a beauti-. ful illustration of the expansive power of the common law, which acquires flexibility, and moulds itself from time to time, so as to a^ccomplish the various ends of modern society.^ ^ Bank of Columbia v. Patterson's Adm'r. 7 Cranch, 299, 305, 306, and cases there cited; Bank of United States v. Dandridge, 12 Wheat. 64, 67, 68-75, and cases there cited : Mott v. Hicks, 1 Cowen, 613 ;' 2 Kent, Comm. Lect. 83, p. 288 ; Kortright v. Buffalo Bank, 20 Wend. 91 ; Fleckner v. Bank of United States, 8 Wheat. 338 ; 2 Kent, Coram. Lect. 33, p. 291 (4th ed.), and the cases there cited in the note; Angell & Ames on Corporations, ch. 8, pp. 162- 209 (ed. 1843) ; Att.-Gen. v. Life & Fire Ins. Co., 9 Paige, 470 ; Murray V. East India Co. 5 B. & Aid. 204, 210. The present doctrine in England seems to be, that an agent of a corporation need not be appointed under the seal of the corporation for acts, which are of an ordinary nature, and do not affect the interests of the corporation. Mr. Justice Taunton, in Smith v. Birmingham Gas Co. 1 Adolph. & Ellis, 530, said, " The distinction is between matters which do, and matters which do not, affect the interest of the corporation." See also Bast London Water Works Co. v. Bailey, 4 Bing. 283. The Ameri- can doctrine seems to have proceeded upon a much broader ground ; and to embrace all exercises of authority, which are in any way sanctioned by the cor- poration itself, or by its delegated directors, in regard to the rights, interests, or duties of the corporation, which are not, by the general laws of the land, required to be under seal, such as the passing of the title to real estate. See also Edwards v. Grand Junction Canal Co. 1 M. & Craig, 659, 672 ; Murray ». East India Co. 5 B. & Aid. 204, 209, 210, and cases cited ; Ante, § 53, notes. [ * Municipal corporations are not principals, but themselves agents, answera- ble to their constituents, and are not to be presumed to recognize and inci- dentally ratify and confirm the acts of their officers done beyond the scope of their authority. Ma:yor, &c., «. Reynolds, 20 Md. 14.] ' Without going to an earlier period, we may trace the gradual development and advancement of this doctrine from Eex v. Biggs, 3 P. Will. 419 ; Rex v. §§ 53, 54.J APPOINTMENT, HOW MADE. 53 § 64. In regard to the mode of appointment of an agent in cases not required by law to be under seal, it may be either express or implied. An express appointment may be by a formal Bank of England, Doug. 524; Bank of England v. Moffat, 3 Bro. Ch. 262; Murray v. The East India Co. 5 B. & Aid. 204; East London Water Works Co. 4 Bing. 283 ; Mayor of Stafford v. Till, 4 Bing. 75 ; Tilson v. Warwick Gas Light Co. 4 B. & Cressw. 962 ; until we come to the case of Beverley v. The Lincoln Gas Light & Coke Co. 6 Adolph. & Ellis, 829, where the doctrine was examined with great learning and ability by Mr. Justice Pat- teson, in delivering the opinion of the court. On that occasion he said, " This therefore, brings us to the second question, which is, whether an action of as- sumpsit can be maintained against a corporation aggregate without a head, on an executed parol contract ? It is well known that the ancient rule of the com- mon law, that a corporation aggregate could speak and act only by its common seal, has been almost entirely superseded in practice by the courts of the United States in America. The decisions of those courts, although intrinsically entitled to the highest respect, cannot be cited as direct authority for our proceedings ; and there are obvious circumstances which justify their advancing with a some- what freer step to the discussion of ancient rules of our common law than would be proper for ourselves. It should be stated, however, that, in coming to the decision alluded to, those courts have considered themselves, not as altering the law, but as jtistified by the progress of previous decisions in this country and in America. We, on our part, disclaim entirely the right or the wish to innovate on the law upon any ground of inconvenience, however strongly made out ; but, when we have to deal with a rule established in a state of society very different from the present, at a time when corporations were comparatively few in number, and upon which it was very early found necessary to engrafb many exceptions, we think we are justified in treating it with some degree of strictness, and are called upon not to recede from the principle of any relaxa- tion in it which we find to have been established by previous decisions. If that principle, in fair reasoning, leads to a relaxation of the rule, for which no prior decision can be found expressly in point, the mere circumstance of novelty ought not to deter us ; for it is the principle of every case, which is to be regarded ;, and a sound decision is authority for all the legitimate consequences which it involves. Several cases have determined that corporations aggregate may main- tain actions on executed parol contracts. In the Dean and Chapter of Rochester V. Pierce, Lord EUenborough first at Nisi Prius, and this Court afterwards, held that they might sue in debt for use and occupation of their lands ; and the court of common pleas, in The Mayor of Stafford v. Till, held the same as to assump- sit. This establishes that, where a benefit has been enjoyed, such as the occijr- pation of their lands, by their permission, the law will imply a promise to make them compensation, which promise they are capable of accepting, and upon which they may maintain an action. The action for use arid occupation is estab-i lished by stat. 2, G. II. ch. 19, § 14; and according to the words of the statute, may be maintained " where the agreement is not by deed." Some agreement seems to be implied as the foundation ; though it is well established that it need 54 AGENCY. [CH. T. written instrument ; as by a power of attorney. A more com- mon mode is by some informal written instrument, as by a let- ter of instructions, or by a written request, or by a memoran- not amount to a formal demise, or even be express. To hold, then, that a cor^ poration is within this statute, is to hold that it may be a party to an agreement not under seal, at least for the purpose of suing on it ; and it would be rather strong to deny, at the same time, that it could be a party to it for the purpose of being sued on it. Lord EUenborough, indeed, says, in the Dean and Chap- ter of Rochester v. Pierce, that the action for use and occupation does not necessarily suppose any demise. ' It is enough that the defendant used and occupied the premises by the permission of the plaintiff; and a corporation, as well as an individual, may without deed, permit a person to use and occupy premises of which they are seised.' But call it by whatever name we please, permission or demise, it clearly binds the corporation ; the party occupying and paying rent under it acquires rights from the corporation, becomes their tenants • from year to year, and can be ejected only by the same means as would be available for an individual landlord. Here, then, the law implies that the cor- poration has acted as a contracting party, and that, too, in a contract to the validity of which, for the purposes of this action, the absence of any deed is essential. If, in that case, an express agreement not under seal had been ten- dered in evidence to prove the terms on which the defendant held, it must have been received ; and if, on the face of it, it had appeared that the plaintiffs had come under any conditions precedent to the recovery of rent on their part, such conditions would surely have been binding on them though not under seal ; and the non-performance of them would have been in answer to the action. In The Southwark Bridge Company v. Sills, the contract for letting was proved by a series of letters. We agree that the relation between the corporation and the occupier of its land, may commence without express contract ; that it may, in the first instance, appear to want many of the legal incidents of the relation between landlord and tenant ; but add the fact of payment of rent for one year, and acceptance by the corporation, and you add nothing of express contract on the part of the corporation ; it has apparently done no more than acquiesce in the receipt of a certain compensation for the occupation of its land for a year ; and yet by the addition of that fact, the corporation and the occupier are demonstrated to be landlord and tenant. This appears to us to show that, in the eye of the law, the relation between them commenced in contract, though it wanted at first the evidence from which it might be inferred. But, if this be a contract to which a corporation may be a party, though not under seal, and any rights resulting from that agreement come to be enforced, may not that form of action be applied, which is appropriate to parol agreements ? Is it not unreasonable to hold, that a corporation may make a binding promise, and yet that assumpsit shall not be maintainable against it, if the promise be broken? If, then, it be established that, upon the same contract, the remedies are mutual, that if the corporation may sue its tenant in assumpsit on a parol demise, the tenant may in turn sue it in the same form of action, we do not see how it can be denied, that a corporation, occupying land, may be sued in assumpsit gener- § 54.] APPOINTMKNT, HOW MADE. 55 dum for a sale or a purchase, or for some other act of agency. But the most usual mode of appointment Is by an unwritten request, or by implication from the recognition of the principal, or from his acquiescence in the acts of the agent.^ ally. We may suppose two contracts entered into at the same moment in writ- ings not under seal ; by the one, a corporation professes to demise its lands to A. B., by the other A. B. demises his land to the corporation ; an enjoyment of the premises is had under both. . It would be surely an unsatisfactory state of the law, which should compel us to hold that, if the corporation sued A. B. in assumpsit for his rent, A. B. might not set off or sue in the same form for that which was due from the corporation. We have been thus minute in examining the case of use and occupation, because it appears to us very fairly to open the principle, on which this matter ought to stand. The same point has been ruled in an action for goods sold and delivered. The City of London Gas Light and Coke Co. V. NichoUs, was assumpsit for gas supplied; the objection was taken, that the contract was not under seal. Best, C. J., overruled it at once, saying, ' It is quite absurd to say, that there is any necessity for a contract by- deed in such a case.' If, in that case, a set-off had been pleaded for metres supplied to the company, could evidence in support of it have been rejected because there was no contract under seal for the supply ? Yet, if it could not, upon what principle can it be maintained, that that supply might not have been made the ground of an action of indebitatus assumpsit ? We have not over- looked the technical difficulty, which has been alleged upon the form of the declaration, in which a mere promise is stated. Part of our argument has already been addressed to meet it ; it seems to us that it rests on no solid foun- dation. When the question is, whether a particular party can sue or be sued by a particular writ or count, or be counted against in any particular form ? the true answer is to be found by putting another question: Can he enter into the contract, or bring himself, or be brought, within the special circumstances, which form essential parts of the statement in such writ or count ? That this is the principle may be seen conclusively in the history of our forms of action, ancient and modern, given in the third volume of Blackstone's Commentaries. If, therefore, it be asked, whether a corporation can be sued in assumpsit ? we ask, in return, can it bind itself by a parol contract? Can it make a promise? If it can, the former question must be answered in the affirmative. We, there- fore, agree with the court of common pleas in The Mayor of Stafford v. Till, that there is no substantial difference in this respect between assumpsit and ■ • 2 Kent, Comm. Lect. 41, pp. 613-616 (4th ed.) ; 1 Bell, Comm. B. 3, Pt. 1, ch. 4, § 4, art. 410 ; Id. pp. 478-481 (5th ed.) ; American Ins. Co. v. Oakley, 9 Paige, 496; Pickett v. Pearsons, 17 Vermont, 470; Post, §§84- 288 ; Farmers and Mechanics' Bank v. Butchers and Drovers' Bank, 16 N. Y. 145; Summers v. Solomon, 7 El. & Bl. 879. See Burton v. Furnis, 3 Huri. & Nor. 926 (Am. ed.) ; Eamozotti v. Bowring, 7 J. Scott, K. s. 871. 66 AGENCY. [CH. V. § 55. Cases of this latter description, arising from the grant of an agency by an unwritten or Terbal request, or by implica- tion, are very familiar in all the common business of life, and debt. Every count, indeed, in debt for goods sold and delivered, charges a contract ; ' the words " sold and delivered," ' says BuUer, J., in Emery v. Fell, ' imply a contract ; for there cannot be a sale, unless two parties agree.' De Grave v. The Mayor and Corporation of Monmouth, was debt against a corpo- ration for the price of weights and measures. It was contended that the action could not be maintained, as a corporation cannot contract unless by some instrument under the common seal. The delivery had been proved, an exami- nation of the goods at a full meeting of the corporation, and subsequent use of them; the order for them was by the mayor de facto, who was afterwards ousted. Lord Tenderden thought the examination was the exercise of an act of ownership, ' and that, by so doing, the corporation have recognized the con- tract.^ The verdict passed for the plaintiffs, and was not disturbed. The recognition of a contract is its adoption, — the taking it to be the contract of the party so recognizing it ; but that assumes it to be a contract, which the party was capable of entering into. Lord Tenterden, therefore, must have considered the corporation as capable of contracting for the purchase of goods without a deed. And in Dunstan v. The Imperial Gas Light Co., where the plaintiff failed on another ground, he carefully guards himself from being supposed to decide the contrary. We certainly have not found any decided case, in which it has been held that a corporation may be sued in assumpsit on an executed parol contract, a circumstance of great, but not conclusive, weight. For (not to mention that there is no case in which the contrary has been ex- pressly decided upon argument), if it be remembered what the course of the law has been on this subject, we shall find that circumstance not unnatural, and that some deduction must be made from the weight of dicta unfavorable to our pres- ent view, which may be found here and there in the books upon this subject. At first, the rule appears to have been exclusive, as indeed its principle required it to be. A corporation, it was said, being merely a body politic, invisible, sub- sisting only by supposition of law, could only act or speak by its common seal ; the common seal, in the words of Peere Williams, in Rex v. Bigg, was the hand and mouth of the corporation. The rule therefore stood, not upon policy, but on necessity, and was of course equally applicable to small as to great matters ; to acts of daily or of rare occurrence ; to what regarded personal as well as real property. But this, though true in theory, was intolerable in practice ; the very act of affixing the seal, of lifting the hand, or opening the mouth, could only be done by some individual member, in theory quite distinct from the body politic, or by some agent ; the management of the corporate property, the daily susten- tation of the members, the performance of the very duties for which the corpo- ration was created, required incessantly that acts should be done, sometimes of daily recurrence, sometimes entirely unforeseen, yet admitting of no delay, sometimes of small importance, or relating to property of little value. The same causes also required that contracts to a small amount should often be entered into. In all these cases, to require the affixing of the common seal was impos- § 55.] APPOINTMENT, HOW MADE. 57 the common departments of trade. Thus, the appointment, by which the relation of master and servant is created, and the extent of the authority conferred on the latter, are ordinarily sible ; and therefore, from time to time, as the exigencies of the case have re- quired, exceptions have been admitted to the rule ; and what we desire to draw attention to is this, — that these exceptions are not such as the rule might be sup- posed to have provided for, but are in truth inconsistent with its principle and justified only by necessity. As each exception of this kind was made, it was not unnatural that the rule in all other yet unforeseen cases should receive confirma- tion, though it would be hardly fair to anticipate thence what the opinion of the judges would have been, if the cases had been presented before them and re- quired their decision. In the progress, however, of these exceptions, it has been decided, that a corporation may sue in assumpsit on an executed parol contract; it has also been decided, that it may be sued in debt on a similar contract ; the question now arises on the liability to be sued in assumpsit. It appears to us, that what has been already decided in principle, warrants us in holding that this action is maintainable. It seems clear that, for a matter of such constant requirement to a gas company as gas metres, and to so small an amount as £15, the company, whether with or without a head, might contract without affixing the common seal ; see Bro. Abridg. Corporations and Capacities, pi. 56, Horn v. Ivy ; and it is clear, that they might have been sued in debt for goods sold and delivered. For the reasons given, we think they are equally liable in assumpsit; and consequently, this rule will be discharged." This was followed up by the decision in Church v. The Imperial Gas Light and Coke Co. 6 Adolph. & Ellis, 846, where the court held, that it makes no differ- ence as to the right of a corporation to sue on a contract entered into by them not under seal, whether the contract be executed or executory. On that occa- sion, Lord Denman, in delivering the opinion of the court, expounded the reasons of the doctrine in a very clear and satisfactory manner. He said, " Assuming it, therefore, to be now established in this court, that a corporation may sue or be sued in assumpsit upon executed contracts of a certain kind, among which are included such as relate to the supply of articles essential to the purposes for which it is created, the first question will be, whether, as affect- ing this point and in respect of such contracts, there is any sound distinction between contracts executed or executory. Now, the same contract, which is executory to-day, may become executed to-morrow ; if the breach of it, in its latter state, may be sued for, it can only be on the supposition, that the party was competent to enter into it in its former ; and, if the party were so com- petent, on what ground can it be said that the peculiar remedy, which the law gives for the enforcement of such a contract, may not be used for the purpose ? It appears to us a legal solecism to say, that parties are competent, by law, to enter into a valid contract in a particular form, and that the appropriate legal remedies for the enforcement or on breach of such a contract, are not available between them. Where the action is brought for the breach of an executed con- tract, the evidence of the contract, if an express one, must be the same as if the action were brought while it was executory. An oral or written agreement, or 68 AGENCY. [CH. T. known and ascertained only by implication from the recognition, or conduct, or acquiescence of the master.^ As, where a clerk is employed in a shop or warehouse to sell goods, his authority a series of letters, might be produced to prove the fact, and the terms of the contract. Could it be contended that these would be evidence of a valid con- tract after execution, but of a wholly inoperative one before ? Unless positions such as these can be maintained, we do not see how to support any distinction between express executory and executed contracts of the description now under consideration. A distinction, however, seems to be intimated, in some cases, between the express contract of the parties, and that which the law will imply for them from an executed consideration. And a validity is attributed to the latter, which is denied to the former. But there is no foundation for this ; the diifefence between express and implied contracts, is merely a dilFerence in the mode of proof. On the one hand, a plaintiff, who should sue on a contract to be implied from certain acts done, must be nonsuited if those acts were shown tj be in compliance with stipulations antecedently entered into, unless he was prepared with evidence of all the stipulations. On the other hand, no contract can be implied from the acts of parties, or result by law from benefits received, but such as the same parties were competent expressly to enter into. And this is important in the present argument, because it makes the decisions on implied contracts authority for our decision upon an express one. Upon these grounds, we are prepared to decide that the present action was maintainable. So far, therefore, as the decision of the court of common pleas in East London Water Works Co. V. Bailey, proceeded on the distinction between contracts executed and executory, we are compelled, after consideration, to express our opinion that it was wrongly decided. The case may be sustained, however, on another ground consistent with our previous remarks, and which affords another reason for our present decision. The general rule of law is, that a corporation contracts under its common seal ; as a general rule, it is only in that way, that a corporation can express its will or do any act. That general rule, however, has from the earliest traceable periods been subject to exceptions, the decisions as to which furnish the principle on which they have been established, and are instances illustrating its application, but are not to be taken as so prescribing in terms the exact limit, that a merely circumstantial difference is to exclude from the exception. This principle appears to be convenience amounting almost to necessity. Wherever to hold the rule applicable would occasion very great inconvenience, or tend to defeat the very object for which the corporation was created, the exception has prevailed.' Hence the retainer, by parol, of an inferior servant, the doing of acts very frequently recurring, or too insignificant to be worth the trouble of affixing the common seal, are established exceptions. Oh the same principle, stands the power of accepting bills of exchange, and issuing promissory notes, by companies incorporated for the purposes of trade, with the rights and liabilities consequent thereon. These principles were, it is ' 1 Domat, B. 1, tit. 16, § 3, art. 1 and 4. § 55.] APPOINTMENT, HOW MADE. 59 to make a particular sale is implied from his ordinary occupa- tion, and the acquiescence of the master.^ So, where a clerk is usually intrusted to sign notes, or usually does sign notes for his evident, present to the attention of the court of common pleas when the case in question was decided; and they might reasonably have held, that a contract with a water company, for the supply of iron pipes, was neither one of so fre- quent occurrence, or small importance, or so brought within the purpose of incorporation, that the principle of convenience above established, required it to be taken out of the general rule. See also, London and Birmingham Rail- way Co. V. Winter, 1 Craig & Phillips, 57. A later case on the subject is that of The Mayor of Ludlow ». Charlton, 6 Mees. & Wels. 815, where it was held, that a municipal corporation cannot enter into a contract to pay a sum of money out of the corporate funds for the making improvements in the borough, except under the common seal. On that occasion, Mr. Baron Kolfe, in delivering the opinion of the court, said, "The rule of law on -this subject, as laid down in all the old authorities, iS, that a corporation can only bind itself by deed. See Comyn's Digest, tit. ' Franchise,' (F) 12, 13, and the authorities there referred to. The exceptions pointed out rather confirm than impeach the rule. A corporation, it is said, which has a head, may give a personal com- mand, and do small acts ; as it may retain a servant. It may authorize another to drive away cattle damage feasant, or make a distress, or the like. These are all matters so constantly recurring, or of so small importance, or so little admitting of delay, that to require in every such case the previous affixing of the seal, would be greatly to obstruct the every-day ordinary convenience of the body corporate, without any adequate object. In such matters, the head of the corporation seems, from the earliest time, to have been considered as dele- gated by the rest of the members to act for them. In modern times, a new class of exceptions has arisen. Corporations have of late been established, sometimes by royal charter, more frequently by act of parliament, for the pur- pose of carrying on trading speculations ; and where the nature of their con- stitution has been such as to render the drawing of bills, or the constant making of any particular sort of contracts necessary for the purposes of the corporation, there the courts have held that they would imply in those, who are, according to the provisions of the charter or act of parliament, carrying on the corpora- tion concerns, an authority to do those acts, without which the corporation could not subsist. This principle will fully warrant the recent decision of the court of queen's bench, in Beverley v. Lincoln Gas Light and Cqke Co. The present case, however, was argued at the bar, as if, by the decision in that last case, the old rule of law was to be considered as exploded, and as if, in all cases of executed contracts, corporations were to be deemed bound in the same manner as individuals. But this would be pressing the decision in question far beyond its legitimate consequences ; and that the court of queen's bench had no ' See Kent v. Tyson, 20 N. H. 121 ; Eobinson v. Green, 6 Hairing. (Del.) 115. 60 AGENCY. [CH. Y. master, which are afterwards paid, or recognized to be valid, he is presumed to possess a rightful authority to do so in other instances, within the scope of the same business.^ such meaning, is plain from the subsequent case of Church v. Imperial Gas Light Co. Lord Denman, in delivering the judgment of the court in that case, says [Here the learned judge quoted the words of Lord Denman, already cited in this note, beginning with the words : " The general rule of law is, that a corporation contracts under its common seal ; as a general rule it is only in that way that a corporation can express its will, or do any act. That general rule, however, has from the earliest traceable periods, been subject to exceptions," &e. &c.] : To every word of this we entirely subscribe, and, apply- ing the language of Lord Denman to the present case, it is quite clear, that there was nothing to enable the corporation of Ludlow to contract with the defendant otherwise than in the ordinary mode, under the corporate seal. In contracting without a seal, there was no paramount convenience so great as to amount almost to necessity. To have required a seal, would certainly not have tended to defeat the object for which the corporation was formed, nor was the subject-matter of the contract one either of frequent ordinary occurrence, or of urgency admitting no delay. Before dismissing this, case, we feel ourselves called upon to say, that the rule of law requiring contracts entered into by corporations to be generally entered into under seal, and not by parol, appears to us to be one by no means of a merely technical nature, or which it would be at all safe to relax, except in cases warranted' by the principles to which we have already adverted. The seal is required, as authenticating the concurrence of the whole body corporate. If the legislature, in erecting a body corporate, invest any member of it, either expressly or impliedly, with authority to bind the whole body by his mere signature, or otherwise, then, undoubtedly, the adding a seal would be matter purely of form, and not of substance. Every one becoming a member of such a corporation, knows, that he is liable to be bound in his corporate character by such an act ; and persons dealing with the corporation know, that by such an act the body will be bound. But in other cases, the seal is the only authentic evidence of what the corporation has done, or agreed to do. The resolution of a meeting, however numerously attended, is, after all, not the act of the whole body. Every member knows he is bound by what is done under the corporate seal, and by nothing else. It is a great mistake, therefore, to speak of the necessity for a seal, as a relic of ignorant times. It is no such thing ; either a seal, or some substitute for a seal, which by law shall be taken as conclusively evidencing the sense of the whole body corporate, is a necessity inherent in the very nature of a corporation ; and the attempt to get rid of the old doctrine, by treating as valid contracts made with particular members, and which do not come within the exceptions to which we have adverted, might be productive of great inconvenience." In the still more ' See Smith on Merc. Law, 106 (3d ed.), 1843 ; Dows v. Green, 16 Barb. 72 ; Chidsey v. Porter, 9 Harris (Penn.), 390. § 56.] APPOINTMENT, HOW MADE. 61 § 56. And the nature and extent of the authority of the ser- vant or agent, are often wholly deduced from the nature and extent of his usual employment. Hence it is (as we shall pres- recent case of The Fishmonger's Company v. Robertson, 5 Mann. & Gr. 131, the whole subject was elaborately discussed, and it was held, that a con- tract not under seal, which bad been executed on the part of the corporation, and for which the defendants had received a full consideration, bound the other party. On that occasion. Lord Chief Justice Tindal said, "Upon the present state of the pleadings, the defendant Robertson has undoubtedly the right to raise any objection to the declaration which could have been made available on a general demurrer thereto ; and it has accordingly been contended, on his behalf, that it may be assumed, from the declaration itself, that the contract, upon which this action is brought, was not sealed on the part of the plaintiffs with the common seal of the corporation ; that, by the general rule of law, the plaintiffs, being a body corporate, cannot bind themselves by an agreement which is not under their common seal ; that, although there are certain admitted and well-known exceptions to this general rule, yet that the present case does not fall within any of siich exceptions ; and, lastly, that if the agreement be such that the corporation-is not bound thereby, and cannot be sued thereon, so neither can the other party be bound thereby, nor can the corporation sustain an action, as plaintiffs, upon such an agreement. " We concur_^with some of the positions above laid down on the part of the defendants. From the statement of the contract itself on the face of the dec- laration, and the mode of its execution by an agent on behalf of the corporation, as there described, we think it may be inferred, that the defendants' counsel is entitled to assume, that the common seal of the corporation was never affixed thereto. We agree, also, in the general rule of law as above stated, and that the case now under consideration does not fall within any of those exceptions which are so well known as to require no enumeration ; but, whatever may be the consequences, where the agreement is entirely executory on the part of the corporation, yet, if the contract, instead of being executory, is executed on their part, — if the persons, who are parties to the contract with the corporation, have received the benefit of the consideration moving from the corporation, — in that case, we think, both upon principle and decided authorities, the other parties are bound' by the contract, and liable to be sued thereon by the corpo- ration. Even if the contract put in suit by the corporation had been, on their part, executory only, not executed, we feel little doubt but that their suing upon the contract would amount to an admission on record by them that such contract was duly entered into on their part, so as to be obligatory on themselves ; and that such admission on the record would estop them from setting up as an objection, in a cross-action, that it was not sealed with their common seal; on the same principle as it was held by Holt, C. J., and the court, in The Mayor of Thetford's case, ' that, though a corporation cannot do an act in pais without their common seal, yet they may do an act upon record; and that is the case of the city of London every year, who make an attorney by warrant of attorney in this court without either sealing or signing ; and the reason is, because they 62 AGENCY. [CH. V. ently more fully see ^) that the master is bound by the acts of the servant, within the scope of the usual business confided to him ; for the master is presumed to authorize and approve the known are estopped by the record to say that it is not their act. So, if an action be brought against a corporation for a false return, they are estopped to say it is not their return, for, it is responsio majoris et communitatis upon record. And in the present case, the direct allegation by the corporation upon this record, that the agreement was made by Towse on their behalf, would, as we think, amount to an estoppel to the corporation from denying the obligatory force of the agreement in a subsequent action against themselves. But it is unncessary to determine this point on the present occasion, because, on the face of the declaration, there is, as we apprehend, an averilient of the performance by the coiporation, of every matter which amounts to a condition precedent on their part ; at least, we so assume in the present stage of the argument, and before considering the pleas of the defendant. The question, therefore, be- comes this, whether, in the case of a contract executed before action brought, where it appears that the defendants have received the whole benefit of the consideration for which they bargained, it is an answer to an action of assumpsit by the corporation, that the corporation itself was not originally bound by such contract, the same not having been made under their common seal. " Upon the general ground of reason and justice, no such answer can be set up. The defendants having had the benefit of the performance by the cor- poration, of the several stipulations into which they entered, have received the consideration for their own promise ; such promise by them is therefore not nudum pactum ; they never can want to sue the corporation upon the contract, in order to enforce the .performance of those stipulations which have already been voluntarily performed ; and therefore no sound reason can be suggested why they should justify their refusal to perform the stipulations made by them, on the ground of inability to sue the corporation, which suit they can never want to sustain. It may possibly be the case, that, up to the time of the cor- poration adopting the contract by performing the stipulations on their part, there was a want of mutuality, from the corporation not being compellable to perforip their contract; and that the defendants might, during that interval, have the power to retract, and insist that their undertaking amounted to a nudum pactum only. But, after the adoption of the contract by the corporation, by performance on their part, upon general principles of reason, the right to set up this defence appears altogether to fail. " Independently, however, of the reasonableness of such construction, there appears authority in law to support the position. In the case of The Barber Surgeons of London v. Pelson, — assumpsit for a forfeiture under a by-law,— where the objection was expressly taken, that a promise cannot be made to a corporation aggregate without deed, the court held that the action will lay, and that the objection had been overruled in The Mayor, &c., of London v. Goree. Post, §§ 84-106. § 56.] APPOINTMENT, HOW MADE. 63 acts, that are incident to such an enaployment. Thus, if a master usually intrusts his servant to buy goods upon credit, he will be bound by his acts of this sort even when he has prohibited him Again, in The Mayor, &c., of London v. Hunt, assumpsit was held to be main- tainable by a corporation for tolls. In The Mayor, &c., of Stafford v. Till, use and occupation was held to be maintainable by a corporation aggregate, though there was no demise under seal, the tenant having occupied, and paid rent ; and the same point was ruled in the case of The Dean and Chapter of Rochester v. Pierce. The case of The East India Company v. Glover, carries the law further ; for the action in that case was not upon a promise implied by law on an executed consideration, as for goods sold, but was assumpsit by a corporation for not accepting and taking away coffee within the time mentioned by an agreement for sale. The objection, indeed, was not raised ; but we cannot but suppose it would have been made, if thought maintainable ; for, when the defendant wanted to show fraud upon the sale, on the execution of the writ of inquiry before Pratt, C. J., he refused to let in the evidence, saying, the defendant had ad- mitted the contract to be as the plaintiff had declared, by suffering judgment by default, instead of pleading non assumpsit. And, again, the judgment of the court of error in Bowen v. Morris, although not directly an authority upon the point, shows a strong indication of the opinion of Mansfield, C. J., in sup- port of the present action. In that case, the mayor of a corporation had signed a contract to sell landed property belonging to the corporation ' on behalf of himself and the rest of the burgesses and commonality,' and the action was brought in the name of the mayor, who had signed the contract, to recover damages. The Lord Chief Justice, in giving judgment that the action was not maintainable in the name of the. mayor, observes, 'that, although the corpora- tion have not constituted the mayor their bailiff or agent by an instrument under seal, so that he was not competent by that contract to bind the corpora- tion, yet as the mayor signed it, perhaps the corporation might have sustained an action on the contract.' And the cases referred to on guarantees (see particularly the judgment in Kennaway w. Treleavan), and on the statute of frauds, where the contract has been signed by the defendant only, and not by the plaintiff, but allowed to be enforced by action, notwithstanding the objection of a want of mutuality, tend strongly to support the principle on which we consider the present action maintainable. And the earlier case of Cooper v. Gooderick, may be adverted to, as showing the opinion of the court upon the legal consequence of bringing an action by a body corporate. In that case, the defendant, as bailiff of Emanuel College, made conusance for rent granted to them in fee by indenture. The issue was non concessit ; and the jury found that the grantor granted it by the deed, and delivered that deed to a stranger to their use, and they sealed the counterpart of that indenture ; the question was whether a stranger, without letter of attorney from them to receive it, might receive the deed to their use ; and it was held by all the court that he might, and that the sealing of the counterpart was a suflScient agreement, and as well if they had made a letter of attorney ; ' and, if they had not sealed the counterpart, but had brought an action upon it, that had made the grant per- fect ; ' and judgment was given for the plaintiff. " We therefore think the present action is maintainable by the corporation, 64 AGENCY. [CH. V. specially from buying upon credit ; for the other party trusts to him, on account of the general habit of his employment, and the presumed assent of the master, who has held him out as having- unless some sufficient answer appears on the pleas, which we now proceed to consider.'' [See further on this subject, Mayor of Ludlow v. Charlton, 6 Mees. & Wels. 823 ; Church v. Imperial Gas Co. 6 Adolph. & Ellis, 861 ; Williams v. Chester RailwayCo. 5Eng.LawandEq. 497 ; Diggle ». Loudon Railway, oExch. 442; Denton v. East Anglican Railway Co. 3 C. & K. 17 ; Clark ». Guardians of Cuckfield Union, 11 Eng. Law and Eq. 442 ; Paine v. Strand Union, 8 Q. B. 326, 810 ; Lamprell v. Billericay Union, 3 Exch. 283 ; Homersham v. Wolver- hampton Waterworks Co. 4 Eng. Law and Eq. 426. One of the most recent cases on this subject, decided June 23, 1855, is that of Henderson v. The Au- stralian Royal Mail Steam Nav. Co. 32 Eng. Law and Eq. 167. Wightman, J., said, " This is an action against the Australian Royal Mail Steam Navigation Company, which is a company constituted expressly for the purpose of carrying on a trade by vessels ; it is incorporated ' 'for the purpose of undertaking the establishment and maintenance of a communication, by means of steam naviga- tion or otherwise, and the carrying of the royal mails, passengers, and cargo, between Great Britain and Ireland, and the Cape of Good Hope and Australasia,' and for that purpose it must maintain and employ many vessels. Can it be doubted that, amongst the ordinary operations of the company, there would arise a necessity for employing persons to navigate or bring home vessels which met with accidents abroad ? The words of the contract, as set out in the dec- laration, show an employment directly within the scope of the objects for which the company was incorporated. It is true that there is a conflict of authorities which it is difficult to reconcile. Two or three cases in the court of exchequer, Lamprell v. The Billericay Union, 3 Exch. 283, and the Mayor of Ludlow v. Charlton, 6 Mees. & Wels. 815, and Arnold v. The Mayor of -Poole, 4 Mann. & Gr. 863, in the court of common pleas, appear to militate against the view taken by this court. But those decisions proceeded upon a principle adapted to municipal corporations, which are created for other objects than trade ; and the court of exchequer applied that principle to modern trading companies, which are of an entirely different character. In early times, there was a great relaxa- tion of the rule which required that the contracts of corporations should be under seal, and that relaxation has been gradually extended. At iirst, the relaxation was made only in those cases mentioned by Mr. Lush, where the subject-matter of the contract was of small moment and frequent occurrence, which, in the case of municipal corporations, might be the only exceptions necessary. But in the later cases, there was a further relaxation, especially in the case of corporations created by charter for trading purposes, and other like corporations. The general result of the cases mentioned in Clark v. The Guardians of the Cuckfield Union, 16 Jur. 686 ; s. c. 11 Eng. Rep. 442, is, that in the case of trading corporations, wherever the contract relates, and is essential to the purpose for which the company was incorporated, it may be enforced, though not under seal. In deciding that case, I reviewed all the cases, and adhere to the opinion which I then expressed, that in such a case as the present, where the contract is essentially necessary to the objects of the company, and directly within the scope of their charter, it may be enforced, § 56,] APPOINTMENT, HOW MADE. 65 a competent authority for this purpose.^ And it is a general rule, which will be abundantly illustrated in the course of these com- •mentaries, that where one of two innocent persons must suffer by though made by parol." And Erie, J., added, " I am of opinion that the contract is binding on the corporation, though not under seal, on the ground that it is directly within the scope of the company's charter. The authorities are apparently conflicting, but none conflict with the principle laid down by my brother Wightman, in which I concur. In Beverley v. The Lincoln Gas Light and Coke Co. 6 Adolph. & Ellis, 829, the supply of gas was directly incident to the purpose for which the company was incorporated. So also in Church v. The Imperial Gas Light and Coke Co. 6 Adolph. & Ellis, 846 ; and in Sanders V. The Guardians of the St. Neot's Union, 8 Q. B. 810; and in the elaborate judgment of Wightman, J., in Clark v. The Guardians of the Cuckfield Union, 16 Jur. 686 ; s. c. 11 Eng. Rep. 442, it was assumed that the matter was within the scope of the company's charter. The judgment, delivered by Lord Camp- bell, C. J., for this court, in the Copper Miners' Co. v. Fox, 16 Q. B. 229 ; S. C. 3 Eng. Rep. 420, enunciated the principle. The principle affirmed by this series of cases, does not conflict with the two leading cases in the court of exchequer, which were cases of municipal corporations. Neither building, which was the matter in The Mayor of Ludlow u. Charlton, 6 Mees. & Wels. 816 ; nor litigation, tvhich was the matter in Arnold v. The Mayor of Poole, 4 Mann. & Gr. 860, was incidental directly to the purposes for which the corporations of those towns were constituted. The other cases to which I adverted, were corporations for trading purposes, and it is difficult to reconcile them. In Lamprell v. The Guardians of the Billericay Union, 3 Exch. 283, the action related to the building of a workhouse, with which the defendants were, as a corporation, connected. Diggle V. The London and Blaekwall Railway, 5 Exch. 442, is that which to the greatest degree conflicts, unless it can be distinguished, or explained on the ground that it was a unique contract ; if it cannot, I do not agree to it ; and in this conflict of authorities, I adhere to those which oppose it. The notion that a set of contracts shall have their validity depending on the frequency and insignificancy of the subject-matter, is of such extreme perniciousness, that I do not think that it can be adhered to, and must be considered as applicable only to municipal corporations. It has been so held as to contracts for servants, but I do not think that it was meant to be said, that the contract was valid if the matter was of small importance, and invalid if the matter was of great im- portance; and indeed, in the case of trading companies, which it is allowed ' 1 Livermore on Agency, pp. 37-41 (ed. 1818) ; 2 Kent, Comm. Lect. 41, pp. 614, 616, 626, 627 (4th ed.) ; Anon. 1 Shower, 95 ; Paley on Agency, by Lloyd, P. 1, ch. 3, § 2, pp. 161-175 ; Nickson v. Brohan, 10 Mod. 109- 111 ; Pickering v. Busk, 15 East, 38 ; Barber v. Gingel, 3 Esp. 60 ; Rusby V. Scarlett, 5 Esp. 76, 77. See Wayland's case, 3 Salk, 234; Bolton v. Hillersden, 1 Ld. Raym. 225 ; Hazard v. Treadwell, 1 Str. 506 ; Williams v. Mitchell, 17 Mass. 98. AGBNCT. 5 66 AGENCY. [CH. V. the misconduct of a third person, that party shall suffer, who, by his own acts and conduct, has enabled such third person, by giv- ing him credit, to practise a fraud or imposition upon tlie otlier« party .1 And this is in perfect coincidence with the rule of the civil law, wherein it is said : " Semper, qui non prohibet pro se intervenire, mandare creditur.^ Qui patitur ab alio mandari, ut sibi credatur, mandare intelligitur." ^ But of this more will be said under the next head. may draw and accept bills of exchange not under seal, it is obvious that ' insignificancy is no element ; neither is the frequency or rarity of the contract an element. The nature of the contract, and the subject-matter of it,, must be the principle which governs the question whether it is valid, though not under seal. It would be pernicious to the law of the country, that, under the sem- blance of a contract, parties should obtain goods or services, and not be com- pellable to pay for them. The court of exchequer had an opinion that it would be important that the rule should be certain ; but their resort to the rule, that the contract in all cases, with the above-mentioned exceptions, should be under seal, cannot be acted upon."] It is very certain, that no such distinction between contracts made by munici- pal corporations and other corporations, exists in America ; but the general rule, as laid down in the text, is generally, if not universally, established. Indeed, in New England, our municipal corporations rarely, if ever, use any corporate seal : and all their multifarious business is transacted by the town officers, who are annually chosen by the votes of the inhabitants, and who act, virtuie officii as agents of the town, and in almost all cases, except of the conveyance of the real estate of the town, act by unsealed instruments and contract, either verbally or by unsealed writings, on behalf of the town. See Angell & Ames on Cor- porations,ch. 8, pp. 162-209 (2d ed.). ' Baring v. Corrie, 2 ,B. & Aid. 143 ; Paley on Agency, by Lloyd (3d ed.), p. 201. See Hazard v. Treadwell, 1 Str. 606 ; Post, § 264. = Dig. Lib. 60, tit. 17, 1. 60; Dig. Lib. 14, tit. 1, 1. 1, § 5; Post, § 89; 2 Kent, Comm. Lect. 41, pp. 614-616 (4th ed.) ; Pothier, Pand. Lib. 17, tit. 1, n. 19. ' Dig. Lib. 17, tit. 1, 1. 18 ; Pothier, Pand. Lib. 17, tit. 1, n. 19 j Post, §89. § 56.] NATURE AND EXTENT OP AUTHORITY. 67 CHAPTER YI. NATURE AND EXTENT OP AUTHOBITT. [* § 57. Recapitulation. 58. Authority of agent, unless the contrary manifestly appears to be the intent of the principal, always construed to include all the necessary and usual means of execu- ting it with effect. Illustrations. 59. Further illustrations. . 60. Authority includes also all the various means which are justified or allowed by the usages of trade. 61. Same doctrine in the civil law. 62. General language used in connection with » particular subject-matter, presumed to be used in subordination to that matter. 63. General authority to receive moneys, no authority to negotiate bills received in payment. 63 a. General authority to arrange, settle, &c., all disputes, does not authorize agent to confess judgment in name of principal. 64. Construction of general letter of attorney by an executrix. 65. A general authority limited by preceding clauses in same power of attorney. Illus- tration. 66. Power to indorse does not include authority to accept bills. 67. Authority to accept bills of exchange limited to those drawn upon him individually. 68. Formal powers of attorney subject to a strict interpretation. Illustrations. 69. Less formal instruments never construed to authorize acts not obviously within the scope of the particular matter to which they refer. Illustrations. 70. 71. Similar principles in the Roman law. 72. When agent signs contract " by procuration," or his authority purports to be derived from a written instrument, party contracting is put upon his inquiry as to con- tents of instrument. 73. But where there is a written authority, no duty exists to make inquiries as to pri- vate instructions to agent. 74. Written authority of agent, in cases of doubt, to be construed most strongly against writer. 75. In other respects, orders and letters of instructions construed liberally. Interpreta- tion of mercantile phrases often left to the jury. 76. Doctrine that an implied authority cannot exist with an express authority must be received with qualifications. 77. Usages of a particular trade or business, or of a particular class of agents, admissible for the purpose of interpreting the authority actuiilly given. 78. Illustrations of foregoing principles. 79. Maxim that an express power conferred by writing, cannot be enlarged by parol evidence — how far applicable. 80. 81. Cases of admission of parol evidence. 82. General rule that informal instruments are more liberally construed than formal and deliberate ones. , 83. Further rules of construction. 84. Most numerous cases of agency are those created by verbal authorizations or implied from circumstances. 86. In all such cases, agency includes all the usual modes and means of accomplishing the ends of the agency, imless expressly excluded. 68 AGENCY. [CH. TI. 86. Authority to transact business in foreign country presumes to include authority to transact it according to forms and laws of such country. 87. Authority implied from circumstances construed as to its extent and nature in same manner as an express contract. 88. Eoman law recognized same limitations. 69, 90. Examples illustrating foregoing principles. Authority results from the tacit con- sent or acquiescence of the principal. 91. Doctrine of courts of equity goes further. 92. Payment of bills accepted or indorsed by clerk, affirms authority of clerk. 93. Person authorized to assume the a^arent ownership of property will be presumed to have the real. 94. Authority of agent may be implied from the nature of the particular act done by the principal. ^ 96. Also from usual habits of dealing between the parties. 96. Known usages of business often true exponents of the nature and extent of an im- plied authority. 97. Every kind of authority to an agent embraces the appropriate means to accomplish its ends. 98. Nature and extent of incidental authority often depends on nice considerations of usage or implications of law. Illustrations. 99. An agent simply authorized to receive payment cannot commute or compromise the debt. 100. Incidental powers, how deduced. 101. By inference or intendment of law. 102, 103. Illustrations of same. 103 a. When a payment to an agent would be good payment, a tender to him would be good tender. lOi. Cases of incidental authority as a mere inference of fact from the pecnliarcircum- stances of the case. 105. Cases in which the question of incidental authority is a mixed question of law and fact. 106. Largest portion of incidental powers is deduced from the particular business or character of the agents themselves. 107, 108. Illustrations in the case of auctioneers. 109. In the case of brokers. 110. In the case of factors. 111. Factors may insure both for themselves and for their principals. 112. Much of the authority of factors due to the consideration that they are treated as the owners of the property consigned to them. 113. Factors have no authority to pledge the goods of their principal, on their own ac- count, beyond their lien upon them. 114, 115. Authority of cashiers of banks. 116. Incidental powers of masters of ships; treated as having a special property in ship, and not as having the mere charge of it as servant. 117. Possessed similar powers under the Eoman law. 118. Ordinarily, authority of ship-master over the cargo, limited to transportation and preservation of it. In cases of emergency, has the entire disposition of it. 119. These incidental powers ordinarily belong to ship-master only in absence of owner. Powers in home port from usage. 119 a. When he can use the credit of the owner. 120. Authority as to hiring officers and men for ship. 121. Incidental powers of master restricted to those which belong to the usual business of the ship. 122. Authority as to repairs limited to necessary repairs. 123. Doctrine of the civil law similar. §§ 57, 58.] NATURE AND EXTENT OP AUTHORITY, 69 123 a. General duty of master of ship to employ his whole time and attention in the service of his employer. 124. How far partners may bind the partnership. 125. How far restricted. 126. Distinction between general and special agent. Principal bound by acts of general agent, within the scope of general authority, though he violates private instructions. 127. Ground of this distinction is the public policy of preventing frauds upon innocent persons, and promotion of coniidence in dealings with agents. " 128. Same rule very strictly enforced in Roman law. 129. Example of distinction in civil law. 130. Rule as laid down by Pothier. 131. Case of factors, known to be such, a familiar illustration of distinction between gen- eral and special agents. 132. Illustration in case of sale of horse by agent of livery stable keeper. 133. Same principle governs both the cases of general and special agencj'. 134, 135. Where the act of an agent will bind his principal, there his representations, declarations, and admissions, respecting the subject-matter, made at the time of the contract, will also bind him and constitute a part of the res gestce. 136. Reasoning of Sir William Grant in support of this distinction. 137, 138. Illustrations of this subject. 139. Fraudulent or negligent statements and concealments of agent, bind the principal when part of the res gestce. 139 a. Effect of acts, &^', of one joint agent, discussed. 140. Notice of facts to agent, when constructive notice to the principal. 140 a, 6, c. How far notice to an officer of a bank is notice to the bank. 140 d. Notice of facts to the principal is .ordinarily notice to the agent. 141. Agents, sometimes in extraordinary circumstances, justified in assuming extraor- dinary powers. 142. Same doctrine applies to mere stranger acting for principal, without any authority, in cases of positive necessity. 143. Similar cases in equity.] § 57. Let us next consider the nature and extent of the author- ity conferred on an agent. It may, as we have already seen, be a general authority, or it may be a special authority. It may be express, or it may be implied. In regard both to a general and to a special express authority, it may be conferred by a forinal in- strument, as by a letter of attorney, under seal ; or it may be by a writing of an informal and loose character, such as a letter, or a memorandum, or it may be by parol or oral declarations.^ § 58. But whether it is conferred in the one way, or in the other, it is, unless the contrary manifestly appears to be the in- tent of the party, always construed to include all the necessary and usual means of executing it with effect.^ Thus, for example. ' Ante, §§ 46-66. ' Howard V. Baillie, 2 H. Bl. 618 ; 3 Chitty on Com. & Manuf. 200, 201; Withington v. Herring, 6 Bing. 442; 1 Bell, Comm. 387, art. 412 (4th ed.) ; Eogers v. Kneeland, 10 Wend. 218 ; Peck v. Harriott, 6 Serg. & 70 AGENCY. [CH. VI. if a general authority is given to collect, receive, and pay all the debts due by, or to, the principal, it will occur to every one, who reflects upon the nature of such a trust, that numberless arrange- ments may be required fully to accomplish the end proposed ; such as settling accounts, adjusting disputed claims, resisting unjust claims, answering or defending suits ; and these subordi- nate powers (or, as they are sometimes called, mediate powers) are therefore, although not expressly given, understood to be included in, and a part of, or incident to, the primary power.^ So, an authority given to recover and receive a debt, will author- ize the attorney to arrest the debtor.^ So, an authority given to a broker to effect a policy, will authorize him to adjust a loss under the policy, and adopt all the means necessary to procure an adjustment.^ So, an authority to settle losses on a policy, will include a power to refer the matter to arbitration.* So, an authority to sell and convey lands for cash, includes an authority K. 146 ; Denman u. Bloomer, 11 111. 177 ; Barnett v. Lambert, 15 Mess. & Wels. 489 ; Post, §§ 97, 101-106. [*Payne v. Potter, 9 Iowa, 649.] ' Howard v. Baillie, 2 H. Bl. 618-620 ; Com. Dig. Attorney, C. 15, citing Palmer, 394; Sprague v. Gillett, 9 Met. 91 ; Fowler v. Bledoe, 8 Humphreys, 609 ; Post, §§ 101-106. " Ibid. ; Post, § 108 and note. ■■' Richardson v. Anderson, 1 Camp. 43, note ; 1 Emerig. Assur. ch. 5, § 4, p. 141 ; Post, §§ 103, 109, 191. [*A general agent of the insurer may waive a condition in the policy that no insurance should be considerea as binding until actual payment of the premium. Sheldon v. Atlantic, &c., Ins. Co. 26 N. Y. Ct. Ap. 460. In Connecticut, the local agents of insurance companies, in ren- dering aid in the issuing of policies are regarded as the agents of the insurance companies rather than of the applicants. Woodbury Sav. Bank v. Charter Oak Ins. Co. 31 Conn. 626. In New England F. & M; Ins. Co. v. Schettler, 38 m. 167, it is held that an insurance agent having power to receive premiums, will be presumed to have authority to give permission to the holder of a policy to remove the property insured to another locality ; and the case of Spitzer V. St. Marks Ins. Co., 6 Duer, 7, dissented from.] ■• Goodson V. Brooke, 4 Camp. 163. But see contra, Huber v. Zimmer- man, 21 Ala. 488. [ * But authority in an agent to receive payment of a note, does not necessarily include power to make any arrangement with regard to it, of benefit to the owner, Woodbury v. Lamed, 6 Mm. 339. After a broker had prepared a slip, and the proposed insurer had accepted it, and had prepared a policy in accordance with it, a desire was expressed by him and assented to by the underwriter, that the policy should be cancelled, on which a cancellation was in form effected. It was held that this was not effectual as to the assured who had not in fact given the broker any authority to cancel the policy. Xenos V. Wickham, Law Rep. 2 H. Lords, 296.] § 58.] NATURE AND EXTENT OF AUTHOEITT. 71 to receive the purchase-money.^ So, an authority to make and enter into contracts for the purchase of grain, has been held to include the power to modify or waive a contract made by the agent in respect to grain.^ So, an authority given by vote to the treasurer of a corporation to hire money, not exceeding a fixed sum, and for a term not less than eiglit or more than twelve months " on such terms and conditions as he may think most conducive to the interests of the company," for the purpose of meeting certain drafts of the company, as they shall fall due, has been held to authorize the treasurer to raise money by drafts on one of the directors, payable to his own order, and indorsed by him, and to be charged by the acceptor to the company.^ So, an authority to make contracts for the sale of lands, will authorize the agent [to make a deed,* and] to receive so much of the pur- chase-money as is to be paid in hand on the sale, as an incident to the power to sell.^ [So, a power to an agent to sell lands, on such terms in all respects as he might deem most advantageous, and to execute deeds of conveyance necessary for the full and perfect transfer of the title, authorizes the agent to insert in the deed the usual covenants of warranty.^] ' Peck V. Harriott, 6 Serg. & R. 149 ; Hoskins v. Johnson, 5 Sneed, 469. ^ Anderson jj.^Coonley, 21 Wend. 279. ' Belknap v. Davis, 1 Appleton, 456. * Valentine v. Piper, 22 Pick. 85. ' Johnson v. McGruder, 15 Miss. 365 ; Yerby v. Grisby, 9 Leigh, Va. 387 ; Higgins v. Moore, 6 Bosw. 344 ; Goodale v. Wheeler, 11 N. H. 424. See Lathrop v. Blake, 3 Foster, 46. [^ Le Roy v. Beard, 8 How. 451. Woodbury, J., said, "This po-wer of attorney is given in extenso in the case. It appears from its contents, that Le Roy, after authorizing Starr (the agent) to invest certain moneys in lands and real estate in some of the Western States and Territories of the United States, at the discretion of the said Starr, empowered him ' to contract for the sale of, and to sell, either in whole or in part, the lands and real estate so pur- chased by the said Starr,' and ' on such terms in all respects as the said Starr shall deem most advantageous.' Again, he was authorized to execute ' deeds of conveyance necessary for the full and perfect transfer of all our respective right, title,' &c., ' as sufficiently in all respects as we ourselves could do personally in the premises,' ' and generally, as the agent and attorney of the said Jacob Le Roy,' to sell ' on such terms in all respects as he may deem most eligible.' It would be difficult to select language stronger than this to justify the making of covenants without specifying them eo nomine. When this last is done, no ques- tion as to the extent of the power can arise, to be settled by any court. But 72 AGENCY. [CH. VI. § 59. Upon the same ground, an agent, who is employed to procure a note or bill to be discounted, may, unless expressly restricted, indorse it in the name of his employer, and bind him when, as here, this last is not done, the extent of the power is to be settled by the language employed in the whole instrument (4 Moore, 448), aided by the situation of the parties and of the property, the usages of the country on such subjects, the acts of the parties themselves, and any other circumstance having a legal bearing and throwing light on the question. That the language above quoted from the power of attorney is sufficient to cover the execution of such a covenant would seem naturally to be inferred, first, from its leaving the terms of the sale to be in all respects as Starr shall deem most advantageous. ' Terms ' is an expression applicable to the conveyances and covenants to be given, as much as to the amount of, and the time of paying, the consideration. ■ Roger v. Kneeland, 10 Wend. 218. To prevent misconception, this wide discretion is reiterated. The covenants, or security as to the title, would be likely to be among the terms agreed on, as they would influence the trade essentially, and in a new and unsettled country must be the chief reliance of the purchaser. To strengthen this view, the agent was also enabled to execute conveyances to transfer the title ' as sufficiently in all respects as we ourselves could do person- ally in the premises.' And it is manifest, that inserting certain covenants which would run with the land might transfer the title in some events more perfectly than it would pass without them ; and that, if present ' personally,' he could make such covenants, and would be likely to if requested, unless an intention existed to sell a defective title for a good one, and for the price of a good one. It is hardly to be presumed that any thing so censurable as this was contem- plated. Again, his authority to sell, ' on such terms in all respects as he may deem most eligible,' might well be meant to extend to a term or condition to make covenants of seisin or warranty, as without such he might not be able to make an eligible sale, and obtain nearly so large a price. Now all these expres- sions, united in the same instrument, would primd facie, in common accepta- tion, seem designed to convey full powers to make covenants like these. And although a grant of powers is sometimes to be construed strictly (Com. Dig. Poiar, B. 1, and c. 6 ; 1 Bl. R. 283), yet it does not seem fit to fritter it away in a case like this, by very nice and metaphysical distinctions, when the general tenor of the whole instrument is in favor of what was done under the power, and when the grantor has reaped the benefit of it, by receiving a large price that otherwise would probably never have been paid. Nind v. Marshall, 1 Brod. & Bing. 319; 10 Wend. 219, 252. This he must refund when the title fails, or be accessory to what seems fraudulent. 1 J. J. Marsh. 292. Another circumstance in support of the intent of the parties to the power of attorney to make it broad enough to cover warranties, is their position or situation as dis- closed in the instrument itself Solly v. Forbes, 4 Moore, 448. Le Roy resided in New York, and Starr was to act as attorney in buying and selling lands in the • Western States and Territories,' and this very sale was as remote as Mil- waukie, in Wisconsin. For aught which appears, Le Roy, Beard, and Starr were all strangers there, and the true title to the soil little known to them, and § 59.] NATURE AND EXTENT OF AUTHORITY. 73 by that indorsement ; for he may well be deemed as incidentally clothed with this authority, as a means to effectuate the dis- count.i So, an agent, employed to procure a bill or note to be discounted for his principal, may, if it be necessary or proper to accomplish the end, indorse the same in his own name, although not indorsed by his principal ; and in such a case he will be enti- tled to be indemnified by his employer.^ [But an agent author- hence they would expect to be required to give warranties when selling, and would be likely to demand them when buying. The usages of this country are believed, also, to be very uniform to insert covenants in deeds. In the case of The Lessee of Clarke «. Courtney, 6 Peters, 349, Justice Story says, ' This is the common course of conveyances ; ' and that in them' covenants of title are usually inserted.' See also, 6 Hill, 338. Now, if in this power of attorney no expression had been employed beyond giving an authority to sell and convey this land, saying nothing more extensive or more restrictive, there are cases which strongly sustain the doctrine, that, from usage as well as otherwise, a warranty by the agent was proper, and would be binding on the principal. It is true, that some of these cases relate to personal estate, and some perhaps should be confined to agents who have been long employed in a particular busi- ness, and derive their authority by parol, no less than by usage ; and conse- quently may not be decisive by analogy to the present case. 3 D. and E. 757 ; Helyear v. Hawke, 5 Esp. Ca. 72, note; Pickering v. Busk, 15 East, 46; 2 Camp. N. P. 655 ; 6 Hill, 338 ; 4 D. and E. 177. So of some eases which relate to the quality and not the title of the property. Andrews v. Kneeland, 6 Cowen, 354 ; The Monte AUegre, 9 Wheat. 648 ; 6 Hill, 338. But where a power to sell or convey is given in writing, and not aided, as here, by. language conferring a wide discretion, it still must be construed as intending to confer all the usual means, or sanction the usual manner, of performing what is in- trusted to the agent. 10 Wend. 218; Howard v. Baillie, 2 H. Bl. 618; Story on Agency, p. 68 ; Dawson v. Lawly, 6 Esp. Ca. 65 ; Ekins v. Macklish, Ambler, 186 ; Salk. 283 ; Jeffrey v. Bigelow, 13 Wend. 521 ; 6 Cowen, 369. Not is the power confined merely to ' usual modes and means,' but, whether the agency be special or general, the attorney may use appropriate modes and rea- sonable modes ; such are considered within the scope of his authority. 6 Hill, 338 ; 2 Pick. 345 ; Bell on Com. L. 410 ; 2 Kent's Comm. 618 ; Vanada v. Hopkins, 1 J. J. Marsh. 287 ; Sandford v. Handy, 23 Wend. 268. We have already shown, that, under all the circumstances, a covenant or warranty here was not only usual, but appropriate and reasonable."] [ * But gucere, whether an agent having authority to let land, can bind his principal by a stipulation, that in certain events the tenant shall have a lease upon certain terms. Rams- den V. Dyson, Law Rep. 1 H. Lords, 129.] ' Fenn v. Harrison, 4 T. R. 177 ; Nickson v. Brohan, 10 Mod. 109 ; Hicks V. Hankin, 4 Esp. 116 ; Paley on Agency, by Lloyd, 209, 210 (3d ed.) ; Mer- chants' Bank v. Central Bank, 1 Kelly, 418. * Ex parte Robinson, 1 Buck, 113 ; Bayley on Bills (6th ed.), ch. 2, § 7. 74 j\GBNCT. [CH. YI. ized to draw and indorse bills in the name of his principal^ has no power to draw or indorse a bill in his own name, or in the joint name of himself and his principal.^] So, a servant, intrusted to sell a horse, is clothed by implication (unless expressly forbidden) to make a warranty on the sale.^ [But this has been said to apply only to a servant of a professed horse dealer .3] So, an agent or broker, having power to sell goods without any express restriction as to the mode, may sell by sample or with warranty.* § 60. And not only are the means necessary and proper for the accomplishment of the end included in the authority, but also all the various means which are justified or allowed by the usages of trade.^ Thus, if an agent is authorized to sell goods, this will be construed to authorize the sale to be made upon credit, as well as for cash, if this course is justified by the usages of trade, and the credit is not beyond the usual period ; for it is presumed, that the principal intends to clothe his agent with the power of resort- ing to all the customary means to accomplish the sale, unless he ' Stainbaok «. Read, 11 Grattan, 281. = PoEt, § 132. Fenn v. Harrison, 3 T. K. 757 ; Helyer v. Hawke, 5 Esp. 72; 3 Chitty, Com. & Manuf. 200, 201; Alexander v. Gibson, 2 Camp. 656; Paley on Agency, by Lloyd, 209, 210 (3d ed.) ; 1 Bell, Comm. 387, art. 412 (4th ed.) ; Id. pp. 477-479 (5tli ed.) ; Nelson v. Cowing, 6 Hill, 336 ; Hunter J). Jameson, 6 Iredell, 252 ; Woodford v. McClenahan, 4 Gilman, 85 ; Skinner «. Gunn, 9 Porter, 306 ; Bradford v. Bush, 10 Ala. 386 ; Cooke «. Campbell, 13 Ala. 286 ; Ezell v. Franklin, 2 Sneed, 236 ; Franklin u. Ezell, 1 Sneed, 497.' But see Seignor & Walmer's case, Godbolt, 360; Post, § 421, note. Whether a power to sell land includes an authority to convey it with covenants of gen- eral warranty, is a point upon which there are contradictory decisions. In Vanada v. Hopkins, 1 J. J. Marsh. 293, the court of appeals of Kentucky held the affirmative. See also Peters ». Farnsworth, 16 Vt. 165: Taggart V. Stanberry, 2 McLean, 643; Le Roy «. Beard, 8 How. 441. In Nixon «. Hyserott, 5 John. 68, the Supreme Court of New York decided in the nega- tive. The same court, in Gibson w. Colt, 7 John. 890, held, that a power to sell does not include a power to warrant the title ; and that a master of a ship, authorized to sell the ship, had no authority to represent that she was a regis- tered ship. [This last case was overruled in 6 Hill, 336.] ' See Coleman v. Riches, 29 Eng. Law and Eq. 826. « Andrews v. Kneeland, 6 Cowen, 854. But see Nixon v. Hyserott, 5 John. 58; Gibson v. Colt, 7 John. 390. Ekins V. Macklish, Ambler, 184-186; Paley on Agency, by Lloyd (Bd ed.), 198, note; 1 Livermore on Agency, 103, 104 (ed. 1818); Post, §§ 77, 98, 101-106. §§ 59, 60.] NATUEE AND EXTENT OP AUTHORITY. 75 expressly restricts him.i In other words, he is presumed to authorize him to sell in the usual manner, and only in the usual manner, in which goods or things of that sort are sold.^ [Thus, a general selling agent has no implied authority to bind his prin- cipals by a warranty that flour sold by him on their account will keep sweet during a sea voyage, in the absence of any usage of business to that effect.^] ' Anon. 12 Mod . 614 ; Scott v. Surman, Willes, 407 ; Hovgtton v. Matthews, 3 Bos. & Pull. 489; Newsome v. Thornton, 6 East, 17; Paley on Agency, by Lloyd, 26, 198, 212-214 (3d ed.) ; 2 Kent, Comm. Lect. 41, pp. 622, 623 (4th ed.) ; MeKinstry v. Pearsall, 3 John. 319 ; Van Allen v. Vanderpool, 6 John. 69.; Goodenow v. Tyler, 7 Mass. 36 ; Clark «. Van Northwick, 1 Pick. 343 ; Laussatt o. Lippincott, 6 Serg. & R. 386 ; Gerbier v. Emery, 2 Wash. Cir. 413 ; post, §§ 108, 226 ; Greeley v. Bartlett, 1 Greenl. 172 ; Forrestier c. Boardman, 1 Story, 43. ' Wiltshire v. Sims, 1 Camp. 258 ; James v. McCredie, 1 Bay, 294 ; Delafield «. Illinois, 26 Wend. 228; Ives «. Davenport, 3 Hill, 374; 2 Kent, Comm. Lect. 41, pp. 622, 623 (4th ed.); 3 Chitty on Com. & Manuf. 205; Laussatt V. Lippincott, 6 Serg. & R. 386 ; post, § 110 ; Fisk v. Offit, 15 Martin, 656 ; Reano u. Magee, 11 Martin, 637. [•■' Upton V. Suffolk County Mills, 11 Gush. 586. Metcalf, J., there said, "The single question which we have examined is, what is the extent of the implied authority of a general selling agent.' The answer is, it is the same as that of other general agents. And it is an elementary principle that an agent, employed generally to do any act, is authorized to do it only in the usual way of business. Smith's Merc. Law (Am. ed. 1847), 105 (5th ed.), 129; Wool- rich on Com. & Merc. Law, 319; Jones v. Warner, 11 Conn. 48. A general agent is liot, by virtue of his commission, permitted to depart from the usual manner of effecting what he is employed to effect. 3 Chit. Law of Com. & Manuf. 199. When one authorizes another to sell goods, he is presumed to authorize him to sell in the usual manner, and only in the usual manner, in which goods or things of that sort are sold. Story on Agency, § 60. See also Shawt). Stone, 1 Cush. 228. The usage of the business in which a general agent is em- ployed furnishes the rule by which his authority is measured. Hence, a general selling agent has authority to sell on credit, and to warrant the soundness of the article sold, when such is the usage. Goodenow v. Tyler, 7 Mass. 36 ; Alexander ». Gibson, 2 Camp. 565 ; Nelson v. Cowing, 6 Hill, 336 ; 2 Kent, Comm. (6th ed.) 622 ; Russell on Factors, 68 ; Smith on Master and Servant, 128, 129. But as stocks and goods sent to auction are not usually sold on credit, a stock broker or auctioneer has no authority so to sell them, unless he has the owner's express direction or consent. Wiltshire v. Sims, 1 Camp. 268; 3 Chit. Law of Com. & Manuf. 206; 1 Bell, Comm. 388. And it was said by Mr. Justice Thomp- son (9 Wheat. 647), that auctioneers have only authority to sell, and are not to warrant unless specially instructed so to do. As there is no evidence nor suggestion of a usage to sell flour with the hazardous warranty that it shall keep sweet during a sea voyage, in which it 76 AGENCY. [CH. VI. § 61. The same doctrine is recognized in the civil law ; for by that law agents might do whatsoever is comprehended within their letter of procuration and the intentions of the principal, deducible therefrom, and whatever naturally follows from the authority given to them, or is necessary for the execution of it.^ And this, especially, was deemed to belong to a procurator, having what was called a liberal administration. " Procurator, cui generaliter libera administratio rerum commissa est, potest exigere, aliud pro alio permutare." ^ Thus, an agent appointed to demand per- sonal property, might institute an action therefor. " Ad rem mobilem petendam datus procurator, ad exhibendam recte aget." ^ Domat has expounded the true doctrine of the civil law in expressive, but at the same time in exact, terms. " If," says he, " the order or power given marks precisely what is to be done, he, who accepts and executes it, ought to keep close to what is prescribed in it. And if the order or power be indefinite, he may set such bounds to it, or give to it such extent, as may reasona- bly be presumed to be agreeable to the intention of the person, who makes the order, or bestows the power ; whether it be with regard to the thing itself, which is to be done, or the way of doing it." * " Igitur commodissime ilia forma in mandatis servanda est, ut quotiens certum mandatum sit, recedi a formS, non debeat ; at quotiens incertum vel plurium causarum, tunc licet aliis prsesta- tionibus exsoluta sit causa mandati, quam quae ipso mandate inerant, si tamen hoc mandatori expedierit, mandati erit actio." * § 62. On the other hand, language, however general in its form, when used in connection with a particular subject-matter, will be presumed (as we have already seen ^} to be used in sub- must twice cross the equator, we deem it quite clear that nothing short of an express authority, conferred on the agent by the defendants, would empower him to bind them by such a warranty. See Cocks v. Midland Counties Railway Co. 3 Welsb. Hurlst. & Gord. 278.] [* But the agent or servant of a horse dealer has an implied authority to bind his principal or master by a war- ranty, even though (unknown to the buyer) he has express orders not to warrant. Howard v. Sheward, 2 Law Rep. Com. Pleas, 148.] ' Domat, B. 1, tit. 15, § 3, art. 10, by Strahan. « Dig. Lib. 3, tit. 3, 1. 58; Pothier, Pand. Lib. 3, tit. 8, n. 8. » Dig. Lib. 3, tit. 3, 1. 56, 57; Pothier, Pand. Lib. 3, tit. 3, u. 29. * 1 Domat, B. 1, tit. 15, § 3, art. 3, by Strahan. <■ Dig. Lib. 17, tit. 1, 1. 46; Pothier, Pand. Lib. 17, tit. 1, n. 45. « Ante, § 21. §§ 61-63.] NATURE AND EXTENT OP AUTHORITY. 77 ordination to that matter ; and therefore it is to be construed and limited accordingly. And it will make no difference in the con- struction, that this general language is found in very formal in- struments, such as a letter of attorney. Thus, where a power of attorney authorized an agent " to ask, demand, and receive from the Bast India Company, or whom it should, or might concern, all money that might become due to the principal, on any account whatsoever, and to transact all business," ^ and, on non-payment, to use all lawful means for the recovery, and, on payment, to give proper receipts and discharges, with power to appoint substitutes, and giving his (the principal's) full power and authority in the premises, with the usual clause of ratification ; it was held, that the words " to transact all business," did not authorize the agent to indorse an East India bill, received under the letter of attorney in the name of the principal, and to procure a discount thereon, on such indorsement ; for the words " all business " must be construed to be limited to all business neces- sary for the receipt of the money. § 63. So, a letter of attorney to receive from the commissioners of the navy, or whom it may concern, all salary, wages, &c., and all other money due to the principal, with a general power to receive all demands from all other persons, to appoint substitutes, and to make due acquittances and discharges, has been held not to authorize the agent to negotiate any bills received in payment, or to indorse them in his own name, even although there was evi- dence of a usage among agents of the like sort to negotiate such bills ; for the authority conferred did not include any such power of negotiation ; and parol evidence is not admissible to control or enlarge the language of a written instrument.^ * Hay V. Goldsmidt, cited 1 Taunt. 349, 350 ; Murray v. East India Co. 6 B. & Aid. 204, 210, 211 ; Esdaile v. La Nauze, 1 Y. & Col. 394. ' Hogg V. Snaith, 1 Taunt. 347 ; Murray k. East India Co. 5 B. & Aid. 204, 210, 211. See Ekins v. Maeklish, Ambler, 184, 186. It is said by Mr. Lloyd; ' in his' notes to Paley on Agency (3d ed.), p. 198, that " the construction of a written instrument, whether mercantile or otherwise, is for the court, and not for the jury. The court, however, may, where the construction is doubtful, receive evidence in aid of its judgment." Lord Hardwicke, in Ekins v. Maeklish, Am- bler, 184, 185, thought that the evidence of the custom among merchants was admissible, to explain a letter, at least, if it could not be well otherwise under- stood, in courts of equity, even if not admissible in courts of law. See also Mechanics' Bank v. Bank of Columbia, 6 Wheat. 326 ; Morrell v. Frith, 3 Mees. & Wels. 402 ; Neilson v. Harford, 8 Mees. & Wels. 806, 823 ; Kean v. Davis, Spencer, 426. 78 AGENCY. [CH. VI. § 63 a. So, a letter of attorney empowering an agent to nego- tiate, compromise, adjust, determine, settle, and arrange all dif- ferences and disputes between the principal and all persons what- ever, and to execute and sign in the name of the principal any release, covenant, or conveyance of any part of the principal's estate, and to give and receive discharges, receipts, &c., has been held not to authorize the agent to confess a judgment in the name of the principal. 1 [So, a letter of attorney authorizing an agent to "collect a debt," does not empower. him to give a discharge upon receipt of the debtor's note.^ Nor can an agent authorized to settle a claim against a carrier for the loss of goods give a dis- charge without receiving any consideration.^] § 64. So, a letter of attorney given by an executrix, authoriz- ing an agent to receive all sums of money due to the testator, or to her as executrix, to adjust all accounts and differences, to sub- mit the same to arbitration, to execute assignments, receipts, and releases, to pay all debts due by her as executrix, in due course of law, and generally to do all acts for receiving debts, and dis- charging the powers given by the letter of attorney, with full power " to do and act touching and concerning all or any of the premises, as effectually to all intents, constructions, and purposes whatsoever, as she as executi-ix could," .has been held not to authorize the agent to accept bills of exchange to charge her in her own right for the debts of the testator.* § 65. So, a power of attorney to secure, demand, and sue for all sums of money then due, or thereafter to become due, to the principal in certain countries, and to discharge and compound the same, to execute deeds of land then, or thereafter, owned by the principal, in a particular state, " and to accomplish, at his discre- ' Lagow V. Patterson, 1 Blackford, 252. « Corning v. Strong, 1 Carter, 329 ; Kirk u. Plyatt, 2 Carter, 322 ; Ward v. Evans, 2 Ld. Kaym. 928; Sykes v. Giles, 5 Mees. & Wels. 646; Miller v. Ed- monston, 8 Blackford, 291. [* Where a depositor in a savings bank left her bank book with her mother, with instructions that "she wanted to leave the bank book with her, and have her do -her business, so that when she wanted money she could get it by sending orders to her," and afterwards sent money to her mother to deposit, it was held that the mother was not an agent to receive payment of a debt due to the depositor. Butman v. Bacon, 8 Al- len, 25.] 3 Patterson v. Moore, 85 Penn. St. 69. * Gardner v. Baillie, 6 T. R. 591. But see Howard v. Baillie, 2 H. Bl. 623, which seems contra. §§ 63a-66.J NATURE and extent of authority. 79 tion, a complete adjustment of all the concerns of the principal, in the State of New York, and to do any and every act in his name, which he would do in person," has been held not to author- ize the agent to give a promissory note in the name of the princi- pal, upon the ground, that making an adjustment of his concerns did not include any incidental authority to give the note, for the authority, notwithstanding these general words, was to be con- strued to be limited to the business referred to in the preceding clauses, and not include a general authority to adjust all the other concerns of the principal.^ § 66. So, a letter of attorney, given to certain persons, jointly and severally, to sue for and get in moneys and goods, to take proceedings and bring actions, to enforce payment of moneys due, to defend actions, settle accounts, submit disputes to arbi- tration, sign receipts for money, accept compositions, " indorse, negotiate, and discount, or acquit and discharge bills of exchange, promissory notes, or other negotiable securities, which were or should be payable to the principal, and should need and require his indorsement ; " to sell his ships, execute bills of sale, hire on freight, effect insurances, " buy, sell, barter, exchange, and import all goods, wares, and merchandise ; and to trade and deal in the same, in such manner as should be deemed most for his interest ; and generally to make, do, execute, transact, perform, and accom- plish all and singular such further, and other acts, deeds, matters, and things, as should be requisite, expedient, and advisable to be done in and about the premises, and all other his affairs and con- cerns, as he might or could do, if personally acting therein ; " has been held not to authorize the agent to accept a bill in the name of the principal ; especially if drawn in relation to concerns in which he had a partnership interest only. The language of the instrument, although general, was thought rather to import a power to take for the defendant, than to bind him ; and the acts were to be done for the defendant singly. An express power was given to indorse, but none to accept, bills ; so that if any inference ' Rossiter v. Kossiter, 8 Wend. 494. This case certainly stands upon very nice principles of construction ; for giving the note might be the only effectual means of adjusting the principal's concerns if the power was applicable to all the principal's concerns in the State of New York, instead of being limited to the preceding special authorizations. See Taylor v. Robinson, 14 CaL 899 , Heffer- man v. Adams, 7 Watts, 716 ; Wood v. McCain, 7 Ala. 800, 80 AGENCY. [CH. V was to be drawn from the omission, it was an inference against, and not in favor of, any intention to confer the latter. Such instruments do not give general powers, speaking at large ; but only where they are necessary to carry the purposes of the special powers into effect.^ § 67. For the same reason, a power of attorney by a principal to another person, " for him, and on his behalf, to pay and accept such bill or bills of exchange as should be drawn or charged on him by his agents or correspondents, as occasion should require ; and generally to do, negotiate, and transact the affairs and busi- ness of him (the principal) during his absence, as fully and effect- ually as if he were present and acting therein," has been held not to authorize the agent to accept bills drawn on him upon account of a partnership, in which the principal was a partner ; but only to accept bills drawn on him upon his individual account. Tlie language of the instrument conferred an authority to accept bills for the principal, and on his behalf. No such power was requisite, as to partnersliip transactions ; for the other partners might bind the firm by their acceptance ; and, therefore the words of the instrument might well be confined to their obvi- ous meaning ; namely, an authority to accept in those cases where it was right for the principal to accept in his individual capacity.^ ' Atwood V. Munnings, 7 B. & Cressw. 278. " Atwood V. Munnings, 7 B. & Cressw. 278, 283, 284. The authority con- ferred by written instruments of Agency of this sort, is to be carefully dis- tinguished from a class of cases closely resembling them, that is, powers of appointment created by deeds, or last wills. In this class of cases, courts of equity have indulged themselves in a very liberal interpretation of the words, and have held many executions of such powers valid, which would per- haps scarcely be allowed in the construction of letters of attorney. Thus, a power to appoint land has been held to include a power to charge it with a sum- of money for the same objects as the appointment. Roberts v. Dixall, 2 Eq. ■Cas. Abridg. 668 ; Thwaytes v. Dye, 2 Vern. 80. So a power to charge has been held to authorize a sale, and appointing the money to the objects of the charge. Long v. Long, 5 Ves. 445 ; Kenworthy v. Bate, 6 Ves. 793. So a power to raise money out of an estate, has been held to authorize a sale thereof. Bateman v. Bateman, 1 Atk. 421 ; 2 Story, Eq. Jurisp. §§ 1063, 1064. So a power to pay debts out of rents and profits, has been held to authorize a sale or mortgage of the estate. Bootle v. Blundell, 1 Meriv. 193, 232 ; 2 Story, Eq. Jurisp. §§ 1064, 1064 a. In Williams v. Woodward, 2 Wend. 487, it was held that a power of attorney to sell an estate included a power to make a lease for life, which was a lesser estate. And the court greatly relied on cases .arising under powers of appointment. It may, however, deserve consideration, §§ 66-69.] NATUEE AND EXTENT OP AUTHOEITT. 81 § 68. Indeed, formal instruments of this sort are ordinarily subjected to a strict interpretation, and the authority is never extended beyond tliat, which is given in terms, or which is neces- sary and proper for carrying the authority so given into full effect.^ Thus, a'power of attorney to sell, assign, and transfer stock, will not include a power to pledge it for the agent's own debt.^ So, a power of attorney, given by a mill company to their agent to man- ufacture logs into lumber at their mills, and transport them to market, and sell and dispose thereof for the company's benefit, will not authorize the agent, without the knowledge of the directors of the company, to deliver over the lumber at the com- pany's mills in payment of securities given by the agent, on behalf of the company, in the course of his agency .^ So, a power to bargain and sell land will not include an authority [to mortgage the same,* nor] to grant a license to the purchaser, previous to a conveyance, to enter and cut timber on the land, although done bond fide with a view to eflfect the sale." § 69. In written instruments also of a less formal character, the like rule of interpretation generally prevails ; and they are never interpreted to authorize acts not obviously within the scope of the particular matter to which they refer. Thus, where, upon the dissolution of a partnership, notice was published by the partners, that all demands upon the firm would be paid by a par- whether the analogy can be safely relied on. See Hubbard v. Elmer, 7 Wend. 446. ' Atwood V. Munnings, 7 B. & Cressw. 278, 283, 284 ; Paley on Agency, by Lloyd (3d ed.), 192; Ducarrey v. Gill, 1 Mood. & Malk. 450; Withington ». Herring, 6 Bing. 442 ; Wood v. Goodridge, 6 Gush. 117. " De Boilchout v. Goldsmid, 5 Ves. jr. 211 ; Post, § 78. ' Lombard v. Winslow, 1 Kerr (New Bruns.), 327. And see Hazeltine v. Miller, 44 Maine, 177. *~Wood V. Goodridge, 6 Gush. 117. ' Hubbard & Elmer, 7 Wend. 446. [* An authority under letters of attorney "to attend to the business of the principal, generally," or "to act for him with reference to all his business," does not authorize the agent to sell real estate, or to sell or dispose of the personalty of his principal, unless as a means necessary and proper to carry on the business to which the agency applies. Coquillard v. French, 19 Ind. 287. If one person constitutes another his " general and special agent to do and transact all manner of business," this does not necessarily authorize the agent to sell stocks or other property of the principal. Hodge v. Coombs, 1 Black (U. S.), 192. See also De Kutte v. Mul- drow, 16 Cal. 605 ; Mott o. Smith, ib. 533.] AGENCY. 6 82 AGENCY. [CH. VI. ticular partner, " who is empowered to receive and discharge all debts due to the said copartnership ; it was held, that this did not authorize the partner, after the dissolution, to indorse a bill of exchange in the name of the firm, although drawn by him in that name, and accepted by a debtor to the firm.^ So, the resident agent of a mining company, who is appointed by the directors to manage the mine, has not in virtue of such an agency, an implied authority from the shareholders to borrow money upon their credit in order to pay the arrearages of wages due to the laborers, however urgent the necessity may be, in order to avoid a distress upon the materials of the mine therefor.^ [So also, the station- ' Kilgour V. Finlyson, 1 H. Bl. 166 ; Paley on Agency, by Lloyd, 192. ' Hawtyne v. Bourne, 7 Mees. & Wels. 595. Mr. Baron Parke, in deliver- ing his opinion on the case, said, "This is an action brought by the plaintiffs, who are bankers, to recover from the defendant, as one of the proprietors of the Trewolves Mine (a mine carried on in the ordinary way), the balance of a sum of £400, advanced by them to the agent appointed by the company of pro- prietors for the management of the mine. Now, the extent of the authority conferred upon the agent by his appointment was this only, — that he should conduct and carry on the affairs of the mine in the usual manner. There is no proof of express authority to borrow money from bankers for that purpose, or that it was necessary in the ordinary course of the undertaking ; and cer- tainly no such authority could be assumed. There are two grounds, on which it is said the defendant may be made responsible : first, on that of a special authority given to the agent to borrow money ; and, secondly, on the assumed principle, that every owner, who appoints an agent for the management of his property, must be taken to have given him authority to borrow money in cases of absolute necessity. There certainly was, in the present case, some evidence, from which a jury might have inferred that a power to borrow money, for the purposes of the mine, had been expressly given to the agent ; but that evidence does not appear to have been left to the jury, and therefore the verdict cannot be supported on the first ground. Then, as to the second ground, it appears that the learned judge told the jury, that they might infer an authority in the ' agent, not only to conduct the general business of the mine, but also, in cases of necessity, to raise money for that purpose. I am not aware, that any au- thority is to be found in our law to support this proposition. No such power exists, except in the cases alluded to in the argument, of the master of a ship, and of the acceptor of a bill of exchange for the honor of the drawer. The latter derives its existence from the l*w of merchants ; and in the former case the law, which generally provides for ordinary events, and not for cases which are of a rare occurrence, considers, how likely and frequent are accidents at sea, when it may be necessary, in order to have the vessel repaired, or to pro- vide the means of continuing the voyage, to pledge the credit of her owners | and therefore it is, that the law invests the master with power to raise money, and, by an instrument of hypothecation, to pledge the. ship itself if necessary. §§ 69, 70.] NATURE AND EXTENT OP AUTHORITY. 83 master and the other servants of a railway company cannot, with- out express authority, bind the company by contracts for surgical attendance upon injured passengers.^ And an agent who is specially avithorized to obtain surgical aid for a passenger injured by the upsetting of a stage-coach, is not thereby empowered to employ a physician to attend to one who acted as coachman with- out the knowledge of the company, and who was injured by the same accident.^] So, an agent, who is authorized to draw and indorse notes, and to draw, indorse, and accept bills of exchange, can act under such authority only to the extent of his principal's business, and is not authorized to draw, indorse, or accept them for the accommodation of [himself^ or] mere strangers.* [So a general agent authorized to transact all the mercantile business of his principal, has not authority to bind his principal as surety on mercantile paper.^] § 70. Principles very similar may be traced back to the Roman law ; for in that law, where the authority was express or special, the agent was bound to act within it ; and where it was of a more general nature, still the agent could not bind the principal beyond the manifest scope of the objects to be accomplished by it. "Igitur commodissime ilia forma in mandatis servanda est, ut quotieris certum mandatum sit, recedi a forma non debeat.^ Dili- If that case be analogous to this, it follows, that the agent had power not only to borrow money, but, in the event of security being required, to mortgage the mine itself. The authority of the master of a ship rests upon the peculiar character of his office, and affords no analogy to the case of an ordinary agent. I am therefore of opinion, that the agent of this mine had not the authority contended for.'' Mr. Baron Alderson used language equally expressive. ' Cox V. Midland Counties Railway Co. 3 Wels. Hurls. & Gordon, 268. =, Shrive v. Stephens, 12 Penn. St. 258. * Stainback v. Bank of Virginia, 11 Gsat. 269. ' Wallace v. Branch Bank of Mobile, 1 Ala. 665, sr. s. ; North River Bank V. Aymur, 3 Hill, 262 ; Stainer v. Tysen, 3 Hill, 279 ; Post, § 73. * Bank of Hamburg v. Johnson, 3 Rich. 42. [*If a power of attorney, given by a corporation to its general agent, does not expressly authorize him to make or indorse promissory notes in the name of or for such corporation, general words at the conclusion of the instrument, giving him power "to do all other acts and things for and in behalf of said company, that he may deem proper to further and protect its interests, cannot have that effect. Lawrence V. Gebhard, 41 Barb. 576. Authority without restriction to an agent to sell, carries with it authority to warrant. Schuchardt v. Allen, 1 Wallace (U. S.), 369.] " Dig. Lib. 17, tit. 1, 1. 46 ; 1 Domat, B. 1, tit. 15, § 1, art. 8. 84 AGENCY, [CH. VI. genter fines mandati custodiendi sunt ; nam qui excessit, aliud quid facere videtur.^ Conditio autem prsepositionis servanda est." 2 § 71. Tlie same principles were applied to the interpretation of words, conferring a general authority as to one thing, or as to many things. Thus, where a general authority of simple admin- istration or management of the property of the principal was con- ferred upon an agent, it was held not to entitle the agent to alien- ate any property, except that which was of a perishable nature : " procurator totorum bonorum, cui res administranda mandatas sunt, res domini neque mobiles vel immobiles, neque scrvus sine speciali domini mandatu alienare potest; nisi fructus aut alias res, quae facile corrumpi possunt." ^ So, where a person was appointed as an agent to superintend a farm, he was held to pos- sess no power to sell it, or the things belonging to it : " procura- torem vel actorem prsedii, si non specialiter distrahendi mandatum accepit, jus rerum domini vendendi non habere, certum ac mani- festum est." * So, a general mandate was construed not to author- ize a final settlement of an agreement by compromise : " mandato generali non contineri etiam transactionem decidendi causa inter- positam." ^ Where, however, a liberal or absolute administration of the affairs of the principal was conferred generally on the agent, a more liberal rule of construction prevailed ; for in such cases he was authorized to collect and to pay debts, and to exchange one thing for another : " procurator, cui generaliter libera administratio rerum commissa est, potest exigere ; aliud pro alio permutare. Sed et id quoque ei mandari videtur ut sol- vat creditoribus." ^ The same doctrine is pithily expressed in the Scottish law, by Lord Stair, who says, " Where in general man- dates some things are specially expressed, the generality is ' 1 Dig. Lib. 17, tit. 1, 1. 5; Pothier, Pand. Lib. 17, tit. 1, n. 41; 1 Domat, B. 1, tit. 15, § 3, art. 3 ; Ante, § 43 ; Post, §§ 87, 88, 174. . " Dig. Lib. 14, tit. 3, 1. 11, § 5 ; Ante, § 43. " Dig. Lib. 3, tit. 3, 1. 63 ; Pothier, Pand. Lib. 3, tit. 3, n. 4 ; 1 Domat, B. 1, tit. 16, § 3, art. 10, 11. Cod. Lib. 2, tit. 13, 1. 16 ; Pothier, Pand. Lib. 3, tit. 3, n. 4. » Dig. Lib. 3, tit. 3, L 60; Pothier, Pand. Lib, 3, tit. 3, n. 6; 1 Stair, Inst. B. 1, tit. 12, § 12, by Brodie ; Ersk. Inst. B. 3, tit. 3, § 39 ; 1 Domat, B. 1, tit. 15, § 3, art. 10, 11. « Dig. Lib. 3, tit. 3, I. 68, 59 ; Pothier, Pand. Lib. 3, tit. 3, n. 8 ; 1 Stair, Inst. B. 1, tit. 12, § 15, by Brodie. §§ 70-72.] NATURE AND EXTENT OF AUTHOEITT. 85 not extended to cases of greater importance than those ex- pressed." 1 § 72. Wherever an authority purports to be derived from a written instrument, or the agent expressly signs the contract, or other paper, introduced with the words " by procuration ; " as, if he signs "by procuration of A. B. (his principal) 0. D. (the agent ") ; in such a case, the other party is bound to take notice, that there is a written instrument of procuration ; and he ought to call for and examine the instrument itself, to see, whether it justifies the act of the agent. For, under such circumstances, it is but a reasonable precaution and exercise of prudence, and he is put upon inquiry .2 And if, from his omission to call for or to examine the instrument, he should encounter a loss from the defective authority of the agent, it is properly attributable to his own fault, since he must know, that he has no other security than his reliance upon the good faith and credit of the agent.^ It has ' 1 Stair, Inst, by Brodie, B. 1, tit. 12, § 15 ; Ersk. Inst. B. 3, tit. 3, § 39. = Towle V. Leavitt, 3 Foster, 360. = Atwood V. Munnings, 7 B. & Cfessw. 278, 283-285 ; Withington v. Her- ring, 5 Bing. 442 ; Schimmelpennicli v. Bayard, 1 Peters, 264 ; Nixon v. Palmer, 4 Seld. 400 ; Stainer v. Tysen, 3 Hill, 279 ; North River Bank v. Aymar, 3 Hill, 262; Munn v. Commission Company, 16 John. 44; Andrews v. Kneeland, 6 Cowen, 354 ; Rossiter v. Rossiter, 8 Wend. 498, 499 ; Stainback v. Bank of Virginia, 11 Grattan, 269 ; Beach v. Vandewater, 1 Sandford, Superior Ct. (N. Y.) 265. The true bearing and limitations of the doctrine stated in At- wood V. Munnings, 7 B. & Cressw. 278, were much discussed in North River Bank v. Aymar, 3 Hill, 262, 270, 271, where a letter of attorney authorized the attorney to draw and indorse notes in the name of the principal, and to manage and negotiate any business, &c. ; and the question was, whether persons taking such notes were bound not only to examine the procuration, but also to ascer- tain whetBer the notes were drawn or indorsed in the business, and for the use of the principal or not. The court held that they were not. Mr. Justice Cowen, upon that occasion, in delivering the opinion of the court, said, "The only adjudged case cited on the argument for the defendants in error, giving color to the idea, that the appointee must look behind the power, is Atwood v. Munnings, 7 B. & Cressw. 278. See Smith v. McGuire, 3 Hurl. & Nor. 654. The power in that case was extremely limited, being tied up to the accept- ance of bills particularly described. The words were, ' For me, and on my behalf, to pay and accept such bill or bills, &c., as shall be drawn, &c., on me by my agents or correspondents, as occasion shall require.'' The bill, there in question was drawn by Burleigh, a partner of the defendant, for the benefit of the joint concern ; and, as the court held, he was neither a correspondent nor agent within the meaning of the power. There was, indeed, no need of giving effect to the bill by an acceptance under the power ; for Burleigh was authorized 86 AGENCY. [CH. VI. been said by a learned judge, that the same principle prevails in the civil law ; for if a person is acting ex mandato, those dealing with him must look to his mandate.^ to bind the defendant as his partner. The court held, that, as the power de- scribed the persons whose names must appear upon the bill, the authority was overstepped if the names were not there. In other words, a power to accept a bill drawn by an agent, did not extend to a bill drawn by one who was not an agent. Here the power contains no such limitation. The case cited accords with one of the most familiar rules for the construction of powers, but it does not apply. If the principal will describe the particular condition on which a bill shall be accepted, however idle, even to the writing of it with a steel pen, it must be fulfilled. There, it was to be drawn by a correspondent or agent ; and not being so drawn, but by one who was a principal, the condition failed. The ap- pointee was admonished to see at his peril, that all the prescribed requisites were combined. The principal would not trust the attorney, even to judge of the parties. There was another clause in the power, which, as Bayley, J., in- clined to think, also amounted to a condition. The bills were to be drawn as occasion should require. It was not necessary to say, that the plaintifiF was bound on this clause to see the occasion did require ; and a majority of the Judges, who spoke to the' question (Holroyd and Littledale, Js.), did not say so. The two reporters did not entirely agree. In 7 B. & Cressw. both of the two latter Judges are made to discuss the question : in 1 Mann. & Ryl., Littledale, J., is represented as having given a naked assent to what Holroyd, J., said; but in neither does it appear that any but Bayley, J., considered the actual occasion of accepting as a condition. The report of his argument is substantially the same in both, though in B. & Cressw. he seems to have thought it sufficient to have called for the letter of advice. Littledale, J., in B. & Cressw. thought the words, as occasion shall require, did not vary the question ; and that the power should be read without them. This was conceding the ground taken by counsel, that the attorney had a discretionary power to judge of the occasion. I have looked into some authoritative books on agency to find how this case has been considered by learned writers who had studied the subject. It is introduced into the late edition of Paley on Agency (p. 192), by a simple statement of the case, with the opinion of Bayley, J. ; or rather, as illustrating the general remark, that all written powers are to receive a strict interpretation, the authority never being extended beyond that which is given in terms, or is absolutely necessary for carrying the authority into effect. Judge Story mentions the case several times in his work on Agency (pp. 22, 65-67, 69), but evidently considers it as holding no more than that the appointee is bound to see the proper parties introduced. He is evidently of opinion, with Littledale, J., that the words ' as occasion shall require,' were no more than what the nature of such a power would imply without them ; namely, an authority > Per Lord Loughborough in De Bouchout v. Goldsmid, 6 Ves. 213. See also Schimmelpennich v. Bayard, 1 Peters, 264. §§ 72, 73.] NATURE AND EXTENT OP AUTHORITY. 87 § 73. We are, however, in all such cases, carefully to distin- guish between the authority given to the agent, and the private instructions given to him, as to his mode of executing that author- in the agent to. govern himself according to the emergencies of business. The necessity mentioned by Mr. Justice Bayley of calling for the letter of advice, was, I think, virtually denied by what Best, C. J., and the whole court after- wards held as to letters of instruction in Withington v. Herring, 6 Bing. 442 ; 3 Moore & Payne, 30, s. c. Such letters are often confidential between the parties, and contain matters not fit to be divulged. He said all that was neces- sary for the plaintiffs to inquire for, was the authority. The case of Atwood v. Munnings was mentioned by Park, J., and he, like Judge Story, understood it, not as imposing the duty to inquire into the state of the principal's affairs, but only as to the character of the drawers. Indeed, there is hardly any rule bet- ter settled or of more universal application, than that the appointee need not inquire as to matters in their own nature private and confidential between the agent and principal. It may be doubted, says Mr. Justice Story, if upon this subject there is any solid distinction between a special authority to do a particular act, and a general authority to do all acts in a particular business. Each includes the usual and appropriate means to accomplish the end. (Story on Agency, 70.) Is it among those means that the appointee shall lose his money, because the attorney happens to betray the interests of his principal ? Would not such a rule rather be a means to make the power utterly unavail- able? No prudent man would advance his money under such a responsi- bility. The rule supposes a degree of capacity to look into the affairs and even the private intentions of others, which no human being possesses.'' Mr. Ch. J. Nelson dissented, and gave the substance of his views as follows : " It is insisted, the bank was not bound to inquire further than to ascertain that the attorney was empowered to make and indorse notes for his principal. But the same instrument which conferred this power also contained the special limi- tation, and it was therefore as material for them to bring the case within that, as within any other part of the authority. The one qualified the other, and both must be regarded in ascertaining the sum of the whole. Mr. Lloyd, in his valuable edition of Paley on Agency (p. 192, 3d ed.), observes, that all writ- ten powers, such as letters of attorney, or letters of instruction, receive a strict interpretation ; the authority never being extended beyond that, which is given in terms, or is absolutely necessary for carrying the authority so given into effect. He refers to Atwood v. Munnings, 7 B. & Cressw. 278, which, in principle, is decisive in favor of the judgment of the court below. There, the power was given to the wife of the defendant, ' for him and on his behalf to pay and accept such bill or bills of exchange as should be drawn or charged on him by his agents, &c., and generally to do, negotiate, and transact the affairs and business of him (Munnings) during his absence,' &c. She accepted four bills drawn by one of the partners of Munnings, the proceeds of which were applied in payment of partnership debts. Another bill was afterwards drawn in order to raise money to take up the former ones, which was accepted by Munnings's wife and discounted by the plaintiffs. The question was, whether the wife had 88 AGENCY. [CH. VI. ity.^ For, although where a written authority is known to exist, or is, by the very nature of the transaction, presupposed, it is the duty of persons dealing with the agent, to make inqiiiries as to the nature and extent of such authority, and to examine it ; yet no such duty exists to make inquiries, as to any private letter of instructions from the principal to the agent ; for such instructions may well be presumed to be of a secret and confidential nature, . and not intended to be diviilged to third persons.^ In like man- ner, if the written authority apparently justifies the act, it is no objection that the agent has secretly applied his authority to other purposes than those for which it was given ; as if, having an authority to make notes in the principal's name in managing his business, the agent should make such notes for secret purposes of a different nature, which could not be known to other persons dealing with him.^ Indeed, it may well be doubted, whether in these respects, there is any solid distinction between the case of a special authority to do a particular act, and a general authority to do all acts in a particular business.* Each includes the usual and appropriate means to accomplish the end. In each case, the agent is apparently clothed with full authority to use all such authority to bind her husband by the acceptance. The court of K. B. held that she had not ; that as the bill was accepted by procuration, the party taking it should, in the exercise of a reasonable prudence and caution, have required the production of the power, when he would have seen, that it only gave authority to accept bills for the defendant and on his behalf; that no such power was requisite as to the partnership transactions, for the other partners might have bound him by their acceptance ; and that the words must be confined to their obvious meaning ; namely, an authority to accept in those cases where it was right for him to accept in his individual capacity." ' See Johnson v. Jones, 4 Barb. 369 ; Biyant v. Moore, 26 Maine, 84. " Withington v. Herring, .5 Bing. 442 ; Allen v. Ogden, 1 Wash. Cir. 174 ; Munn V. Commission Company, 16 John. 44 ; Gibson v. Colt, 7 John. 393 ; Andrews v. Kneeland, 6 Cowen, 354; North Kiver Bank v. Aymar, 3 Hill, 362, 273 ; Ante, § 72, note ; Post, §§ 97, 98, 105, 127, note, 128, note, 129-133. But see Peters v. Ballestier, 3 Pick. 495, and especially what is said by Mr. Justice Putnam, in pp. 502, 503 ; Longworth v. Conwell, 2 Blackf. Ind. 469 ; Tomlinson v. Collett, 3 Blackf Ind. 436 ; Walker®. Skipwith, Meigs, Tenn. 502. 5 Ibid. ; Ante, § 69 ; North River Bank v. Aymar, 3 Hill, 262, 270, 271 ; Ante, § 72, note. [If the instructions to an agent are to employ men by written agreements, and he employs them orally, the principal will be bound, if the persons so employed were ignorant of the agent's instructions. Ronrke v. Story, 4 E. D. Smith, 54.] " Post, § 133, and note. § 73.] NATCRE AND EXTENT OF AUTHORITY. 89 usual and appropriate means, unless upon the face of the instru- ment a more restrictive authority is given, or must be inferred to exist. In each case, therefore, as to third persons innocently dealing with his agent, the principal ought equally to be bound by the acts of . the agent, executing such authority by any of those means, although he may have given to the agent separate, private, and secret instructions of a more limited nature, or the agent may be secretly acting in violation of his duty.^ ' See Paley on Agency, by Lloyd, p. 2; Id. 189, 197, 199, 200-260; Hel- year v. Hawke, 5 Esp. 73 ; Eunquist v. Ditchell, 3 Esp. 64 ; Hicks v. Hankin, 4 Esp. 114; Fenn v. Harrison, 3 T. K. 757; s. c. 4 T. R. 177; Smith v. McGuire, 3 Hurl. & Nor. 553 ;• Alexander v. Gibson, 2 Camp. 555 j Whitehead V. Tuckett, 15 East, 400. See also Pickering v. Busk, 15 East, 38, 43-; Stainer V. Tysen, 3 Hill, 279 ; Munn v. Commission Co. 15 John. 44 ; Perkins v. Washington Ins. Co. 4 Cowen, 659 ; Andrews v. Kneeland, 6 Cowen, 354 ; Beals V. Allen, 18 John. 363 ; North River Bank v. Aymar, 3 Hill, 262 ; Ros- siter V. Rossiter, 8 Wend. 498, 499 ; Ante, § 72, note ; 1 Bell, Comm. B. 3, Pt. 1, ch. 4, § 412; Id. p. 478-480 (5th ed.). The case, intended to be put in the text, is that of an authority distinct, and not derived, from the in- structions, for if the original authority is restricted and qualified, the restric- tions and qualifications constitute a part of the power itself, and govern its extent. Thus, if the owner of a horse should give a written authority to another person, in general terms, to sell the horse ; and this paper should be communi- cated to the buyer, as proof of the authority to sell ; and the seller should have given separate, private, written or verbal directions to the agent not to sell, except at a particular price, and the buyer should ignorantly buy at a less price, the question would then arise, whether the sale was valid. In such a case, the authority to sell would be unlimited upon the paper, and yet it would be lim- ited by the instructions. In such a case, who ought to suffer, the buyer or the seller, by the wrongful act of the agent? In the case of a general agent, it is agreed, on all sides, that private instructions will not vary the right of the agent to bind the principal in dealings with third persons, ignorant of those instruc- tions. In what respect does a general authority to do an act differ from a gen- eral authority to do all acts relative to a particular business or employment, in regard to this point? See Paley on Agency, by Lloyd (3d ed.), pp. 198-211 ; 2 Kent, Comm. Lect. 41, pp. 620, 621, 622 (4th ed.). Lord Ellenborough, in Pickerings). Busk, 15 East, 38, 43, said, "It cannot fairly be questioned in this case but that Swallow had an implied authority to sell. Strangers can only look to the acts of the parties, and to the external indicia of property, and not to the private communications which may pass between a principal and his broker ; and if a person authorize another to assume the apparent right of disposing of property in the ordinary course of trade, it must be presumed that the apparent authority is the real authority. I cannot subscribe to the doctrine, that a broker's engagements are necessarily and in all cases limited to his actual authority, the reality of which is afterwards to be tried by the fact. It is clear 90 AGENCY. [CH. TI.- § 74. There is another consideration, highly important to be borne in mind in the interpretation of written instruments, and especially of those of a commercial nature, such as letters of instruction, or orders ; and that is, that, if the instrument is not expressed in plain and unequivocal terms, free from ambiguity ; but the language is fairly susceptible of different interpretations, and the agent, in fact, is misled, and adopts and follows one, when the principal intended the other, — there, the principal will be bound, and the agent will be exonerated. For, in such a case, the agent has acted in good faith, and within the supposed limits of his authority ; and if one of two innocent parties must suffer, he ought to suffer in preference who has misled the confidence of the other into an unwary act.^ In cases of doubt, the general rule is, that the words are to be construed most strongly against the writer: "verba fortius accipiuntur contra proferentem."^ There is no doubt, for example, that in letters of instructions of a commercial nature, a wish, expressed by the consignor of goods to his agent or factor, may, under particular circumstances, amount to a positive command ; ^ especially where the agent or factor has not any interest, and has not made any advances or incurred any that he may bind his principal within the limits of the authority, with which he has been apparently clothed by the principal in respect of the subject-matter ; and there would be no safety in mercantile transactions if he could not. If the principal send his commodity to a place, where it is the ordinary business of the person, to whom it is confided, to sell, it must be intended that the com- modity was sent thither for the purpose of sale. If the owner of a horse send it to a repository for sale, can it be implied that he sent it thither for any other purpose than that of sale ? Or if one sends goods to an auction room, can it be supposed that he sent them thither merely for safe custody ? Where the commodity is sent in such a way and to such a place as to exhibit an apparent purpose of sale, the principal will be bound, and the purchaser safe." Post, § 94. See what is said by Lord Kenyon, in Fenn v. Harrison, S T. E. 760 ; and by Bayley, J., in Pickering v. Busk, 16 East, 45, 46 ; Schimmelpennichu. Bay- ard, 1 Peters, 264. See also Whitehead v. Tuckett, 15 East, 400 ; Smith ». East India Co. 16 Simons, 76 ; Post, §§ 126, 127, 130, 131, 133. ' See Loraine v. Cartwright, 3 Wash. Cir. 151 ; Dodge v. D'Wolf, MSS. Cir. Ct. in Mass. 1833; Coucier v. Hitter, 4 Wash. Cir. 661; 1 Liverm. on Agency, 403, 404 (ed. 1818) ; De Tastet v. Crousillat, 2 Wash. Cir. 132 ; post, §§ 82, 199. " lb. ; Blackett v. Royal Exc. Ins. Co. 2 Cromp. & Jerv. 244 ; Branch's Maxims, 232. See Burrell v. Jones, 3 B. & Aid. 47. « Broivn v. M'Gran, 14 Peters, 480 ; Marfield v. Douglas, 1 Sandford, Su- perior Ct. 360 ; Wilson v. Wilson, 26 Penn. St. 393. '§ 74.] NATURE AND EXTENT OP AUTHOEITT. 91 liabilities touching the same ; for in the latter cases different considerations may arise. But ordinarily the mere expression of wishes will not amount to positive command, unless such is the fair and reasonable interpretation of the language in the connection in which it stands to the context.^ [Where the ' Ibid. This subject was much considered in Brown v. M'Gran, 14 Peters, 480, where the court said, "Here again the point is open, whether the lan- guage (of a letter) imports, that the defendants construed the wishes of the plaintiff to be simply a strong expression of desire or opinion, or a positive order ; and also, whether the words ' noted accordingly ' import that the defend- ants took notice thereof, or took notice of and assented to obey, the wishes or order of the plaintiff. The language is susceptible of either interpretation, according to Circumstances. If the case had been one of simple consignment, without any interest in the consignee, or any advance or liability incurred on account thereof, the wishes might fairly be presumed to be orders ; and the noting the wishes, accordingly, an assent to follow them. But very different considerations might apply where the consignment should be, as the present is, one clothed with a special interest and a special property, founded upon advances and liabilities. We think, therefore, that this objection is not, under the circum- stances of the case, maintainable. It would be quite another question, whether the court might not, in its discretion, have assumed upon itself the right and duty of construing these letters. There is no novelty in this doctrine. It wiU be found recognized in Ekins v. Macklish, Ambler, 184, 186 ; Lucas v. Groning, 7 Taunt. 164, and Eees v. Warwick, 2 B. & Aid. 113, 116. But the main objection to the instruction is of a more broad and comprehensive character. The instruction in effect decides, that, in the case of a general consignment of goods to a factor for sale, in the exercise of -his own discretion, as to the time and manner of sale, the consignor has a right, by subsequent orders, to suspend or postpone the sale at his pleasure ; notwithstanding the factor has, in con- sideration of such general, consignment, already made advances, or incurred liabilities for the consignor, at his request, trusting to the fund for his due reim- bursement. We are of opinion, that this doctrine is not maintainable in point of law. We understand the true doctrine on this subject to be this : Wherever a consignment Is made to a factor for sale, the consignor has a right generally to control the sale thereof, according to his own pleasure, from time to time, if no advances have been made or liabilities incurred on account thereof; and the factor is bound to obey his orders. This arises from the ordinary relation of principal and agent. If, however, the factor makes advances, or incurs liabili- ties on account of the consignment, by which he acquires a special property therein ; then the factor has a right to sell so much of the consignment as may be necessary to reimburse such advances or meet such liabilities ; unless there is some existing agreement between himself and the consignor, which controls or varies this right. Thus, for example, if, contemporaneous with the con- signment and advances or liabilities, there are orders given by the consignor, which are assented to by the factor, that the goods shall not be sold until a fixed time, in such a case, the consignment is presumed to be received by the 92 AGENCY. [CH. TI. principal wrote to his factor, giving his views of tlie probable supply of the article consigned, and stating facts which indicated a short supply, and in conclusion said, " I have thought it best for you to take my pork out of the market for the present, as thirty days will make an important change in the value of the article ; " it was held that the letter constituted instructions to withhold the property from sale until the receipt of further direc- tions.^] § 75. In other respects, commercial instruments, such as orders and letters of instruction, are generally construed with great lib- erality, and free from technical rules, for the satisfactory reason, that they are generally drawn in a loose and inartificial manner, factor subject to such orders ; and he not at liberty to sell the goods to reim- burse his advances or liabilities, until after that time has elapsed. The same rule will apply to orders not to sell below a fixed price ; unless, indeed the con- signor shall, after due notice and request, refuse to provide any other means to reimburse the factor. And in no case will the factor be at liberty to sell the consignment contrary to the orders of the consignor, although he has made advances, or incurred liabilities thereon ; if the consignor stands ready, and offers to reimburse and discharge such advances and liabilities. On the other hand, where the consignment is made generally without any specific orders as to the time or mode of sale, and the factor makes advances or incurs liabilities on the footing of such consignment, there the legal presumption is, that the fac- tor is intended to be clothed with the ordinary rights of factors to sell in the exercise of a sound discretion, at such time and in such mode as the usage of trade and his general duty require ; and to reimburse himself for his advances and liabilities, out of the proceeds of the sale ; and the consignor has no right, by any subsequent orders, given after advances have been made or liabilities incurred by the factor, to suspend or control this right of sale, except so far as respects the surplus of the consignment, not necessary for the reimbursement of such advances or liabilities. Of course, this right of the factor to sell to reimburse himself for his advances and liabilities, applies with stronger force to cases where the consignor is insolvent, and where, therefore, the consignment constitutes the only fund for indemnity." [The case of Brown v. M'Gran, and the rights of factors, were much considered by the Superior Court of the city of New York in Marfield v. Douglas, 1 Sandford, Sup. Ct. 360. See also Parker v. Brancker, 22 Pick. 40 ; Blot v. Boiceau, 1 Sandford, Sup. Ct. Ill ; 3 Comst. 78 ; Frothingham v. Everton, 12 N. H. 239. But a recent English case, after considering Brown v. M'Gran, decides that the factor has no right to sell the goods contrary to the order of his principal, though the latter has neglected, on request, to repay the advances ; Smart v. Sandq,rs, 5 Man- ning, Granger, & Scott, 895.] [* See Whitney v. Wyman, 24 Md. 131, adopt- ing the law of Brown v. M'Gran.J 1 Marfield v. Douglas, 1 Sandford, Sup. Ct. 360 ; 3 Comst. 70. §§ 74-76.] NATURE AND EXTENT OP AUTHORITY. 93 and are designed to subserve the common purposes of life and business, and leave much to be gathered from the usages of trade, and the practice of employments.^ Still, however, where, upon the whole, the true sense in which the language is used is plain, neither party will be allowed to escape from this sense by showing that another possible interpretation, of a different char- acter, may be given to it, either more broad or more restricted. Thus, for example, where an agent was ordered to sell stock, " should they (the funds) be at eighty-five per cent, or above that price," it was held, that the agent was bound to sell, when the funds reached eighty-five per cent ; and that he had not a general authority to act for his employer, so that he might defer selling till the funds should reach a higher price than eighty-five per cent. He not having sold the stock, when it had arrived at that price, was accordingly held accountable for that price.^ What is the true interpretation of mercantile phrases in such in- structions or orders, is not always a question of law, but may, in many cases, be properly left to a jury to decide, where the phrases admit of different meanings. Thus, for example, it has been left to the jury to say, whether the words in a letter, referring to a bill of exchange enclosed " when duly honored," meant, in connection with the other language, duly accepted, or duly paid.^ § 76. We have already seen, that, where the agency is created and conferred by a written instrument, the nature and extent of the authority must be ascertained from the instrument itself, and cannot be enlarged by parol evidence of the usage of other agents in like cases, or of an intention to confer additional powers ; for that would be to contradict or to vary the terms of the written instrument.* In connection with this doctrine, it is often stated, ' Post, § 82 ; Grant v. Ludlow, 8 Ohio St. 64. ' Bertram v. Godfray, 1 Knapp, 381. ' Lucas V. Groning, 7 Taunt. 164; Mackbeath », Haldimand, 1 T. R. 172; Ante, § 63, note, § 74, note ; Morrell v. Frith, 3 Mees. & Wels. 402. [* If an agent, authorized to make a certain contract, makes one differing in its pre- cise terms, but of the same legal effect, or differing only in securing addi- tional benefits to his principal, the latter will be bound thereby. Simonds v. Clapp, 16 N. H. 222. An agent who is commissioned by his principal to pur- chase a certain specific amount of property, is a special agent, and can no more purchase a smaller than a larger quantity of what he is commissioned to pur- chase. Olyphant v. McNair, 41 Barb. 446.] « Ante, § 62 ; Hogg v. Snaith, 1 Taunt. 347, 352 ; Paley on Agency, by 94 AGENCY. [CH. VI. that an implied authority cannot, in general, take place, where there is an express authority in writing ; ^ for the maxim is, Ex- pressum facit cessare taciturn. But we must take care that the doctrine, in each of these instances, is understood with the qual- ifications and limitations properly belonging to it ; for, otherwise, one may be greatly misled in its just application, as we shall immediately see. § 77. In the first place, the usages of a particular trade or business, or of a particular class of agents, are properly admis- sible, not, indeed, for the purpose of enlarging the powers of the agents employed therein, but for the purpose of interpreting those powers which are actually given ; for the means ordinarily used to execute the authority are included in the power, and may be resorted to by all agents, and especially by commercial agents.^ An agent to sell (as we have seen^ may, if the usages of trade or if the particular business authorize it, sell on credit, not exceeding the usual credit.^ But, without such usage, an authority to sell would be construed to be limited to a sale for money. Upon the same ground, an authority to buy goods will, or will not, authorize a purchase on the credit of the principal, and the giving of a negotiable security for the purchase-money, according as there exists, or does not exist, a usage to justify it. [For an authority to purchase for cash does not, of itself, give any authority to buy on credit.* And it is well settled that a special agent, or an agent employed to make purchases for his principal, has no authority, in the absence of any general usage permitting it, to bind his principal by a negotiable promissory note, or bill of exchange,^ in payment for such goods as he was authorized to Lloyd, 179, n. (5), (3d ed.) ; Id. 198, and note; Murray w. East India Co. 5 B. & Aid. 204, 210, 211. ' Ibid. » Ante, §§ 60, 73 ; Post, §§ 96, 180. 3 Ante, § 69 ; 2 Kent, Coram. Lect. 41, pp. 622, 623 (4th ed.) ; Paley on Agency, by Lloyd, p. 26 (3d ed.) ; Id. 198, 212, and note ; Mechanics' Bank V. Bank of Columbia, 6 Wheat. 326 ; 1 Bell, Coram, pp. 386-388, art. 410, 411, 412 (4th.ed.) ; Id. pp. 477, 478, 482 (6th ed.) ; 2 Kent, Comra. Lect. 41, pp. 622, 623 (4th ed.) ; May v. Mitchell, 5 Huraph. 365. * Stoddard v. Mcllwain, 7 Rich. 625. * [Taber v. Cannon, 8 Met. 458 ; Webber v. Williaras College, 23 Pick. 302 ; Savage v. Eix, 9 N. H. 263 ; Paige v. Stone, 10 Met. 160 ; Denison v. Tyson, 17 Vt. 549 ; Hazeltine v. MiUer, 44 Me.l77. In Gould v. Norfolk Lead Co. 9 Cush. 343, Shaw, C. J., said, "The instruction of the court, that the §§ 76-78.J NATURE AND EXTENT OF AUTHORITY. 95 buy, unless the giving of such notes be indispensable to carry on the business in which he is employed.^] § 78. We may further illustrate these principles by a few cases. An authority to an agent to sell goods, does not author- ize him to exchange them in barter ,2 or to pledge them ; [nor to rescind the sale and adjust a claim for breach of a warranty,^] for there is no usage of trade to that extent.* An authority to payment of a draft not accepted included its acceptance, and was evidence of an authority to accept drafts upon the company, was, in our opinion, incorrect in point of law. The acceptance of a draft is an executory undertaking to pay it at a future day, and the authority to make such an agreement is not incident even to the authority of an agent to purchase and pay for goods. The authority to accept is one of a very high character, particularly in the case of a trading corporation, to whose business credit, and the use of that credit, is constantly necessary. It has been argued, that such authority may be inferred from the course of trade, and the payment of unaccepted drafts upon the company on other occasions. Biit this implication does not follow from such payments ; for, either the agent had funds of the company for the purpose of paying such drafts ; which does not imply that he had authority to pledge their credit ; or he paid them from his own funds, relying on the credit of the company, and their previous undertaking and liability to reimburse him for all his advances, which implies no authority whatever to bind them to a future payment of money, by an acceptance. I shall not go into an examination of the cases on this sub- ject, but will refer to that of Webber v. Williams College, 23 Pick. 302, where the question was much considered, and many cases were cited. The case of Emerson v. The Providence Hat. Manuf. Co. 12 Mass. 237, goes to the point that, constituting one a buying and selling agent of a trading company does not imply authority in him to give the negotiable note of the company."] ' Temple v. Pomroy, i Gray, 128. " Guerreiro v. Peile, 3 B. & Aid. 616 ; Paley on Agency, by Lloyd, 213. [ * And one who is simply employed to sell goods and pay over to his employer the money received from the sales, has no authority to exchange such money with a third person ; and if he does so, and receives in exchange a counterfeit bill, he may maintain an action in his own name to recover back the money paid out by him for it. Kent v. Bornstein, 12 Allen, 3i2.] 3 Bradford v. Bush, 10 Ala. 386. ■• Paterson v. Tash, 2 Str. 1178 ; Newsome v. Thornton, 6 East, 17 ; Martini V. Coles, 1 M. & Selw. 140, 146 ; Urquhart v. Mclver, 4 John. 103 ; Laussatt V. Lippincott, 6 Serg. & R. 386 ; Shipley v. Kymer, 1 M. & Selw. 484 ; Paley on Agency, by Lloyd (3d ed.), 213-222. The doctrine, as to the want of authority of a factor to pledge the goods of his principal, is now well- settled, although it has been greatly doubted at different times. See Paterson v. Tash, 2 Str. 1178 ; Daubigny v. Duval, 6 T. E. 604 ; Pickering v. Busk, 15 East, 38, 44 ; Martini v. Coles, 1 M. & Selw. 140, 146 ; Dudos v. Kyland, cited 6 Moore, 518, 11. ; De Bouchout v. Goldsmid, 5 Ves. 211 ; Kinder v. Shaw, 2 Mass. 398 ; Urquhart v. Mclver, 4 John. 103 ; Ante, § 68. It is, perhaps, somewhat difS- 96 AGENCY. [CH. VI. sell stock does not authorize a sale on credit, as sales of stock are always for ready money .^ An authority to sell and transfer stock for the principal does not authorize the agent to transfer it by way of security for his own private debt ; for it is not an ordi- nary exercise of such an authority.^ [An authority to sell at retail does not authorize a clerk to sell by wholesale, in payment of a' debt due to the purchasers from the principal.^] An author- ity to adjust and collect an unliquidated demand does not au- thorize the agent to pledge the money when received, or a note taken for the amount.* § 79. In the next place, although, in general, the maxim is true, that where an express power is conferred by writing, it can- not be enlarged by parol evidence ; ^ yet the maxim is applicable only to cases where the whole authority grows solely out of the writing; and the parol evidence applies to the same subject- matter at the same point of time, and therefore, in effect, seeks to contradict, or vary, or control, the effect of the writing. When the parol evidence seeks to establish a subsequent enlargement of the original authority, or to give an authority for another object, or where the express power is engrafted on an existing agency, affecting it only sub modo, to a limited extent, the maxim loses its force and application.^ § 80. Thus, for example, if an agent should be authorized in cult, upon principle, to sustain it, as the factor is always enabled to hold him- self out to the world as owner. See also Story on Bailm. §§ 326, 326, 455; Pickering v. Busk, 15 East, 38, 43, 44 ; Laussatt ». Lippincott, 6 Serg. & R. 386 ; Paley on Agency, by Lloyd (3d ed.), 220, 221, n. 3. But of this more will be said hereafter. Post, § 92. ' Wiltshire v. Sims, 1 Camp. 268 ; State of Illinois v. Delafield, 8 Paige, 527, 640. " De Bouohout v. Goldsmid, 5 Ves. 211. See Parsons v. Webb, 8 Greenl. 38 ; Post, § 92. ' Hampton v. Matthews, 2 Harris, 105 ; Lee v. Tinges, 7 Md. 236. [* And where a broker, having an order to buy fifty bales of cotton, executed it by buying them along with two hundred and fifty other bales in a single contract with one vendor, it was held that money given to the broker to pay for the fifty bales, in the belief that the order had been duly executed, might be recovered back as paid, on a total failure of consideration. Bostock v. Jardine, 3 H. & C. 700.] * Jones V. Farley, 6 Greenl. 226 ; Hays v. Linn, 7 Watts, 620 ; Post, § 99. ' Paley on Agency, by Lloyd, 179, n. ; Id. 198, n. « See Williams v. Cochran, 7 Richardson, 45. §§ 78-81.J NATURE AND EXTENT OF AUTHORITY. 97 writing to purchase certain goods at a fixed price ; there could be no question, that evidence of a siibsequent verbal authority to purchase other goods at a different price, or the same goods at a different price, would be admissible to establish the right of the agent ; for in no just sense would it contradict, or vary, or con- trol the legal construction or effect of the original authority of the agent. It would be superinduced upon it, as a distinct and new authority. So, where an agency is of a general nature, and particular written instructions are given, applicable to certain things belonging to that agency, such instructions are understood in no manner to control the general agency, except in those very particulars. Thus, the master of a ship retains, by implication, all the general authority belonging to his station, notwithstand- ing any written instructions for the voyage ; for these control his implied authority only -pro tanto, to the extent which they are intended to reach. § 81. In the next place, although there is a written authority, under which an agent is transacting business for and on the credit of his principal, and therefore persons dealing with him, and knowing that he is acting under such written authority, are bound to know the extent of his authority, and to inquire into its limitations ; yet if the principal, by his declarations or con- duct to such persons, has authorized the opinion, that he had in fact given more extensive powers to his agent than were con- ferred, the principal will be bound by the acts of such agent, in his negotiations with such persons, to the extent of the authority which such declarations and conduct have fairly led them to be- lieve to exist.i So, if an agent is appointed, and receives writ- ten orders limiting his authority, but, at the same time, he is referred by those orders to the verbal communications of another general agent of the principal, who declares, that he has author- ity to control and vary these written orders, and the agent acts in obedience to new orders given by the general agent, he will be fully justified in his deviation from the original orders.^ And parol evidence would certainly be admissible, for the purpose of establishing such declarations and new orders of the general agent.^ ' Schimmelpennich v. Bayard, 1 Peters, 264. ' ManneUa v. Barry, 3 Cranch, 415 ; Ante, §§ 68, 72, 73. ' Ibid. AGENCY. 7 98 AGENCY. [CH. VI. § 82. In the next place, it may be laid down as a general rule, that where an express authority is conferred by informal instru- ments, such as letters of advice, or instructions, or loosely drawn orders, especially where they are general in their terms, or confer a general authority, they are construed with more liberality than more formal and deliberate instruments.^ This rule is adopted for the convenience of merchants ; and, indeed, seems indispen- sable to general confidence and security, in the ordinary operar tions of commerce and navigation and trade.^ The Roman law inculcated an equally comprehensive doctrine. " Ideo per nun- cium, quoque vel per epistolam, mandatum suscipi potest.^ Si quis alicui scripserit, ut debitorem suum liberet, seque earn pecuniam, quam is debuerit, soluturum, mandati actione tenetur.* Item, sive rogo, sive volo, sive mando, sive alio quocuuque verbo scripserit, mandati actio est." ^ § 83. Subject to these reasonable qualifications and restric- tions, the doctrine is unquestionably true, that an express written authority cannot be enlarged by parol evidence, or an authority be implied, where there exists an express one. The authority, too, is construed, as to its nature and extent, according to the force of the terms used, and the objects to be accomplished. If the authority is special, it is construed to include only the usual means appropriate to the end. If the authority is general, it is still construed to be limited to the usual means to accomplish the end. Even if a general discretion is vested in the agent, it is not deemed to be unlimited. But it must be exercised in a reasonable manner, and cannot be resorted to in order to justify acts which the principal could not be presumed to intend ; ^ or which would defeat, and not promote, the apparent end or pur- pose for which the power was given. § 84. Hitherto we have principally referred to cases of agency ' Ante, §§ 74, 75, 180. = 1 Bell, Comm. B. 3, Ft. 1, ch. 4, § 4, art. 409, 410, p. 386 (4th ed.) ; Ante, §§ 74, 75. » Pothier, Pand. Lib. 17, tit. 1, u. 19 ; Dig. Lib. 17, tit. 1, 1. 1, § 1. * Pothier, Pand. Lib. 17, tit. 1, n. 19 ; Dig. Lib. 17, tit. 1, 1. 27, In- trod. » Pothier, Pand. Lib. 17, tit. 1, n. 19 ; Dig. Lib. 17, tit. 1, 1. 1, § 2. « 2 Kent, Comm. Lect. 41, pp. 617, 618 (4th ed.) ; Id. 620, 621 ; 1 Do- mat, B. 1, tit. 16, § 3, art. 3, 10, 11 ; Mackbeath v. Haldimand, 1 T. B. 172, 182. §§ 82-84.J NATDEE AND EXTENT OP AUTHORITY. 99 created by written instruments. But by far the most numerous cases of agency arise, not from formal or informal written instru- ments, but from verbal authorizations, or from implications, from the particular business or employment of the principal or agent, or from the usual dealings between them, or from- the general usages of trade and commerce.^ ^ 2 Kent, Comm. Lect. 41, 613-615 (dth ed.) ; 1 Liverm. on Agency, § 3, pp. 36, 37 (ed. 1818) ; Paley on Agency, by Lloyd (3d ed.), p. 198; 1 Bell, Comm. B. 3, Pt. 1, ch. 4, §4, art. 410, (4th ed.). Mr. Bell, in his Commen- taries on Commercial Law [1 Bell, Comm. B. 3, Pt. 1, ch. 4, § 4, art. 410, p. 386 (6th ed.) ; Id. p. 478 (5th ed.)], has introduced some very appropriate remarks. "The power of a factor, or agent, or broker" (says he), "is con- ferred, either, first, in writing ; formally, by power of attorney, or more loosely, in correspondence ; or, secondly, by parol agreement ; or, thirdly, by mere employment. If the powers are special, they form the limits of the authority ; if general, they will be more liberally construed, according to the necessities of the occasion, and the material, or ordinary, or reasonable course of the transaction. " (1.) In the management of the affairs of a foreign merchant, especially where there is occasion to .discharge debts and receive money, or to carry on judicial proceedings, a power of attorney is the proper evidence of authority. It empowers the factor to represent the principal, and act as he might have done if present. " (2.) But agents, or factors, or brokers, are generally appointed in mer- cantile affairs by letter. So, a confidential clerk is authorized to accept or indorse bills by a letter addressed to him, expressed in the simplest terms, and without either technical words or the solemnities of a formal deed. So, in the course of correspondence, goods are consigned from abroad, with directions to the consignee to sell them, and either to apply the proceeds in a particular way, or to place them to account ; or, merchants or manufacturers, with an accumu- lation of goods on hand, place them with another, {ex. gr. a general agent or another merchant), who agrees to manage the sales, and to advance a certain proportion to be reimbursed out of the sales ; or one is desired to buy goods for another, and either intrusted with credit or money for that purpose, or left to make the purchases as he can, on his own or the principal's general credit ; or goods are sent to the warehouse of a general agent, with particular direc- tions as to their disposal, or to be sold at the ordinary rate of the market. " (3.) In the course of mercantile dealings, goods are placed with gen- eral agents, or sent to public warehouses, and the power of disposal intrusted to brokers ; and so an agency to this effect is constituted without writing of any kind. Many great merchants, in London and elsewhere, have neither goods nor warehouses in their possession ; but, intrusting aU their goods to brokers and agents, confine their own attention to the great lines of commercial intercourse. " (4.) Mercantile agents have authority frequently conferred on them by mere implication. This generally is grounded on the sanction given by the 100 AGENCY. [CH. VI. § 85. In all such cases, whether the agency be of a special nature, or of a general nature, it may also be laid down as a universal principle, that it includes, unless the inference is ex- pressly excluded by other circumstances, all the usual modes and means of accomplishing the objects and ends of the agency.^ And even a deviation by the agent from the appropriate course, will not vitiate his act, if it be immaterial or circumstantial only, and does not, in substance, exceed his right and duty.^ Indeed, a literal adherence to the common course of business may sometimes, under peculiar circumstances, defeat the very objects of the agency ; and new and unexpected emergencies and necessities of such a critical nature may arise, as, if one may use the expression, will expand the authority beyond its ordinary limits, and justify even a deviation from its ordinary limitations and import.^ § 86. Whenever the authority given to an agent is to trans- act business for the principal in a foreign country, or in another State, it must, in the absence of all counter proofs, be pre- sumed to include the authority to transact it in the forms, and by the instruments, and according to the laws of the place where it is to be done.* And each party, under such circum- stances, is bound to know what such forms and instruments are, and what acts are required by those laws. For it would be Tinreasonable to presume, that the principal authorized the end, and refused the lawful means ; or that he intended to violate the laws, or to mislead his agent in relation to his powers.^ employer to credit raised by a person acting in his name. Such is the power implied from giving sanction to the acts of a procurator; as where a clerk, accepts or indorses bills for his master, which that master pays as legitimately accepted, or allows to be as well transferred, as if indorsed by himself." ' Ante, §§ 67, 69, 60, 73, 74, 76, 77 ; 1 Domat, B. 1, tit. 15, § 3, art. 3 ; Id. tit. 16, § 3, art. 1 ; Paley on Agency, by Lloyd (3d ed.), 209, 210 ; Dawson v. Lawley, 4 Esp. 65, 66. ■' Com. Dig. Attorney, C. 16 ; Parker v. Imley, 15 Wend. 431 : Post, 118, 141, 201. 3 2 Kent, Comm. Lect. 41, p. 614 (4th ed.) ; Judson v. Sturges, 6 Day, 656, 660; 3 Chitty on Com. & Manuf. 218; Post, §§ 118, 141, 193, 237; Liotard v. Graves, 3 Caines, 226; Lawler v. Keaquick, 1 John. Cas. 174; Drummond v. Wood, 2 Caines, 310 ; Forrestier v. Boardman, 1 Story, 43. * Owings V. Hull, 9 Peters, 607 ; Story on Conflict of Laws, §§ 260, 262, 286, 318. 6 Owings v. Hull, 9 Peters, 607. §§ 85-87.] NATURE AND EXTENT OF AUTHORITY. 101 § 87. In cases of agency, arising by implication and presump- tion from any of tlie circumstances already alluded to, the nature and extent of the authority conferred upon the agent are to be ascertained and limited in the same manner, and by the same considerations, which govern in the exposition of an express authority conferred in general terms. If the agency arises by implication from numerous acts done by the agent, with the tacit consent or acquiescence of the principal, it is deemed to be limited to acts of the like nature.^ If it arises from the general habits of dealing between the particular parties, it is deemed to be limited to dealings of the same kind, and governed by the same habits. If it arises from the employment of the agent in a particular business, it is, in like manner, deemed to be limited to that particular business.^ And the authority must be implied from facts which have occurred in the course of such employ- ment, and not from mere argument as to the utility and pro- priety of the agent's possessing it.^ If it arises from an authority to do a single or particular act, the agency is limited to the ap- propriate means to accomplish that very "act and the required end, and the implied agency stops there.* In short, an implied agency is never construed to extend beyond the obvious purposes for which it is apparently created.® The intention of the parties, deduced from the nature and circumstances of the particular case, constitutes the true ground of every exposition of the extent of the authority; and when that intention cannot be clearly discerned, the agency ceases to be recognized, or implied. " Obligatio mandati consensu contrahentium consistit." ® And hence the proper corollary of the Roman law : " Diligenter fines ' See Paley on Agency, by Lloyd, 198, 199, 201-209 ; 1 Domat, B. 1, tit. 16, § 3, art. 1 ; 2 Kent, Comm. Lect. 41, pp. 622, 623 (4th ed.). " 1 Domat, B. 1, tit. 16, § 3, art. 1, 2 ; Odiorne v. Maxcy, 13 Mass. 178; Salem Bank ». Gloucester Bank, 17 Mass. 1 ; Williams ». Getty, 31 Penn. St. 464. ^ Hawtayne v. Bourne, 7 Mees. & Wels. 596. ♦ Ante, 55, 66, 71, 77, 78, 83, 85 ; 1 Liverm. on Agency, 36-40 (ed. 1818) ; Id. 94 ; Paley on Agency, by Lloyd, 161, 162 (3d ed.) ; 3 Chitty on Com. & Manuf. 196; Smith on Mer. Law, p. 110 (3d ed.), 1843. * See Johnson v. Wingate, 29 Maine, 404 ; Jones v. Warner, 11 Conn. 41 ; Washington Bank v. Lewis, 22 Pick. 24. « Dig. Lib. 17, tit. 1, 1. 1 ; 1 Domat, B. 1, tit. 15, § 1, art. 6 ; Id. B. 1, tit. 16, § 3, art. 1, 2 ; Ante, § 47. 102 AGENCY. [CH. VI. maiidati custodiendi sunt; nam qui excessit, aliud quid facere videtur."^ § 88. Indeed the Roman law fully recognized the same doc- trine, as to the nature and extent of limitations of an implied agency. Thus, in the case of a common shopman, or other person clothed with the institorial power,^ the party could not bind his principal, except within the limits of that power. " Non tamen omne, quod cum institore geritur, obligat eum, qui prae- posuit ; sed ita, si ejus rei gratia, cui prsepositus fuerit, contractum est, id est, duntaxat ad id, ad quod eum prseposuit.^ Proinde, si prseposui ad mercium distractionem, tenebor nomine ejus ex empto actione. Item, si fort^ ad emendum eum praeposuero, tenebor duntaxat ex vendito. Sed neque, si ad emendum, et ille vendi- derit, neque, si ad vendendum, et ille emerit, debebit teneri." * So, that we here see it laid down in positive terms, that an agent employed to buy, has no implied authority to sell ; and an agent employed to sell, has no implied authority to buy. § 89. A few examples, besides those which have been already incidentally introduced, may serve further to illustrate these principles and deductions. And, first, of an authority resulting from the tacit consent or acquiescence of the principal. Where a man stands by knowingly, and suffers another person to do acts in his own name, without any opposition or objection, he is presumed to have given .an authority to do those acts.® " Sem- per, qui non prohibet pro se intervenire, mandare creditur.^ Si passus sim, aliquem pro me fidejubere, vel alias intervenire, man- dati teneor." ^ Thus, if a shopman is allowed, with the knowl- edge and acquiescence of his master, to sell goods which are on sale in the shop, the master is presumed to have given him the ' Dig. Lib. 17, tit. 1,1. 5 ; Ante, §§ 43, 70 ; Kerns v. Piper, i Watts, 222. * See Ante, § 8, Dig. Lib. 14, tit. 3, 1. 3, 18. ' Dig. Lib. 14, tit. 3, 1. 5, § 11. * Dig. Lib. 14, tit. 3, 1. 5, § 12 ; Ante, §§ 43, 70, 87 ; 1 Domat, B. 1, tit. 16, § 3, art. 2. ^ 1 Story on Eq. Jurisp. §§ 885-392. « Dig. Lib. 50, tit. 17, L 60; Lib. 17, tit. 1, L 18; Ante, § 66; 2 Kent, Comm. Lect. 41 (4th ed.), p. 614-616; 1 Bell, Comm. 486, art. 410 (4th ed.); Id. pp. 478-480 (5th ed.) ; 1 Story on Eq. Jurisp. §§ 385-390. ' Dig. Lib. 17, tit. 1, 1. 6, § 2 J Id. 1. 53 ; Ante, § 56 ; 1 Liverm. on Agency, 37 (ed. 1818). §§ 87-91. J ' NATURE AND EXTENT OP AUTHORITY. 103 requisite authority for that purpose. But such an exercise of the authority to sell will not, per se, justify the shopman in buy- ing goods for his master ; for (as we have seen) an authority to buy cannot properly be inferred from an authority to sell.^ They are acts distinct in their nature, and not dependent upon, or in- cidents of each other. But if the shopman has been accustomed to buy as well as to sell, then the presumption of a full authority equally applies to both.^ § 90. The case above supposed is that of a general authority to sell, or to buy, arising from the knowledge and acquiescence of the principal. But the same doctrine will govern in the case, where the act is a single one, if the acquiescence of the principal, with a full knowledge of the facts, is established.^ Thus, if a person should, in the presence of the principal, sell a parcel of goods of the latter, without objection, as his agent, the tacit con- sent of the principal to the sale will be presumed, and it will bind him.* [So, if an agent applies a note belonging to his prin- cipal to satisfy a debt of the principal, the latter is presumed to have ratified the act, unless he disaffirm it within a reasonable time after it comes to his knowledge.®] § 91. Indeed, the doctrine of courts of equity goes further ; for it clearly established, that if the true owner of property stands by, and knowingly suffers a stranger to sell the same in his own name, as his own property, without . objection, the sale will be valid against the true owner. ^ For under such circumstances, his silence and concealment of his title are treated as equivalent to an affirmation that he has no adverse title to the property ; and it would be a gross fraud upon the purchaser, to allow the true owner thus to delude him into a purchase, and afterwards to defeat the supposed rights acquired under it.'' The same rule ' Ante, § 88 ; Post, §§ 255, 258. ' See 2 Kent, Comm. Lect. 41 (4th ed.), pp. 614-616, 622 ; 1 Liverm. on Agency, pp. 36-40 (ed. 1818) ; Paley on Agency, by Lloyd, 167, 168 (3d ed.) ; Pothier on Oblig. n. 454-456 ; 1 Domat, B. 1, tit. 16, § 3, art. 1-3 ; Dig. Lib. 14, tit.' 3, L 5, §§ 11, 12. ' Liverm. on Agency, 38, 40 (ed. 1818.) * Heane v. Rogers, 9 B. & Cressw. 677, 586; Graves v. Key, 3 B. & Adolph. 318, note (a) ; Pickard v. Sears, 6 Adolph. & Ellis, 469, 474. See Forsyth v. Day, 46 Maine, 196. ^ Brigham v. Peters, 1 Gray, 139. 1 Story on Eq. Jurisp. §§ 385-395. ' Ibid. 104 AGENCY. [CH. VI. will apply to the case, where a person knowing the fact that a deed conveys his own interest in a particular estate, voluntarily subscribes the same deed, as a witness of the due execution thereof by the person who undertakes to convey it.^ Courts of law, also, as far as they may, in regard to personal property, where no technical formalities are necessary to a transfer, now act upon the same enlightened principles of justice. Thus, where a man, without objection, suffered his own goods to be sold by an officer at public auction, to satisfy an execution against a third person, in whose possession they were at the time, it was held in favor of the purchaser at the sale, that his conduct might well authorize the conclusion that he had assented to the sale, or had ceased to be owner.^ § 92. The same rules apply to cases where a clerk accepts or indorses bills or notes for his master, which the master after- wards pays, as legitimately accepted or indorsed ; for his acqui- escence, under such circumstances, will be treated as equivalent to an affirmance of the authority of the clerk to do such acts.^ But a clerk, so intrusted to accept or indorse bills or notes, would not thereby possess an authority tq ,pu#liase, or to sell goods, for his principal.* [So, an ordinary clerk in a store, has no author- ity, as such, to borrow money, or draw bills and notes in the name of his principal.^] So, payments made to an agent will be • Teasdale v. Teasdale, Sel. Caa. in Ch. 69 ; 1 Fonbl. Eq. B. 1, ch. 3, § 4, note (m). ' Pickard v. Sears, 6 Adolph. & Ellis, 469, 474. On this occasion Lord Denman said, " The rule of law is clear, that where one, by his words or con- duct, wilfully causes another to believe the existence of a certain state of things, and induces him to act on that belief, so as to alter his previous position, the former is concluded from averring against the latter a different state of things, as existing at the same time ; and the plaintiff, in this case, might have parted with his interest in the property, by verbal gift or sale, without any of those formalities that throw technical obstacles in the way of legal evidence. And we think his conduct, in standing by and giving a kind of sanction to the proceedings under the execution, was a fact of such a nature, that the opinion of the jury ought, in conformity to Hearn v. Rodgers, 9 B. & Cressw. 686, and Graves v. Key, 3 B. & Adolph. 318, note, to have been taken, whether he had not, in point of fact, ceased to be the owner." Forsyth v. Day, 46 Maine, 176. ' Ante, §§ 65, 78, 87 ; Post, § 104; Johnson v. Jones, 4 Barb. 369. * See 1 Bell, Comm. 386, 387, art. 410 (4th ed.) ; Id. pp. 478-482 (5th ed.) ; 3 Chitty on Com. & Manuf. 196, 197 ; Ante, § 87. » Kerns v. Piper, 4 Watts, 222. See also, Hampton v. Matthews, 2 Harris, 105. §§ 9 1-9 5. J NATURE AND EXTENT OF AUTHORITY. 105 good or not, accordiug to his presumed authority, arising from the course of his business. If he is usually intrusted to receive payments and give receipts therefor, the principal will be bound. But if his employment has been limited to other acts, he will not be bound.^ § 93. So, if a person should authorize another to assume the apparent ownership, or right of disposing of property, in the ordinary course of trade, it will be presumed that the apparent authority is the real authority. For, in such a case, strangers can look only to the acts of the parties, and to the external indicia of property, and ought not to be affected by any mere pri- vate communications, which pass between the principal and the agent.^ § 94. In like manner, an implied authority may be deduced from the nature and circumstances of the particular act done by the principal. If the principal sends his commodity to a place where it is the ordinary business of the person, to whom it is confided, to sell, it will be intended, that the commodity is sent thither for the piirpose of sale. Thus, if the owner of a horse should send it to a repository of sale, it would be implied, that he sent it thither for the purpose of sale. So, if the owner should send goods to an auction room, it would be presumed, that he sent them thither for sale. For, in each of these cases, it could not be supposed, that any other purpose could be intended, such as safe custody, or mere deposit. And, therefore, it may be laid down as a general rule, that when a commodity is sent in such a way, and to such a place, as to exhibit an apparent purpose of sale, the principal will be bound, and the purchaser will be safe, although the agent may have acted wrongfully, and against his orders or duty, if the purchaser has no knowledge thereof.^ § 95. In like manner, the tacit consent or acquiescence of the principal may be deduced from the usual habits of dealing be- ' Paley on Agency, by Lloyd, 274-290. ° Pickering v. Busk, 15 East, 38, 43 ; Dyer v. Pearson, 3 B. & Cressw. 38, 42 ; Paley on Agency, by Lloyd, 167, 168, 280^289 (3d ed.) ; Morris v. Cleasby, 4 M. & Selw. 566 ; Blackburn v. Scholes, 2 Campb. 343 ; 2 Kent, Comm. Lect. 41, pp. 620, 621 (4th ed.). [*Same principle is also held in Calais, &c., Co. v. Van Pelt, 2 Black (U. S.), 372.] ' Pickering v. Busk, 15 East, 38, 43 ; 2 Kent, Comm. Lect. 41, p. 621 (4th ed.) ; Ante, § 73, note. 106 AGENCY. [CH. TI. tween parties .^ Thus, if an agent lias been in the habit of deal- ing for his principal, by buying and selling goods on his account on credit, and full knowledge thereof is brought home to the principal, and no objection is made ; the principal is understood by his silence to assent to such purchases and sales on credit, although the usages of trade, or the general course of the busi- ness, would not justify such a mode of purchase or sale on credit. For the parties are at liberty to dispense with such usages of trade or business at their pleasure ; and the habits of dealing between them afford a full and satisfactory exposition of their intention to dispense with the general rule.^ § 96. In like manner (as we have already seen),^ the known usages of trade and business often become the true exponents of the nature and extent of an implied authority ; * for, in all cases, where such usages exist, and an agency is to be exercised touch- ing such matters, the natural presumption, in the absence of all countervailing proofs, is that the agency is to be conducted in the manner, and according to the practices, which are allowed and justified by such usages.^ Thus, for example, where a stock- broker is authorized to sell, and does sell, stock, and it turns out, for want of a proper stamp, to be unmarketable, and in such' cases the usage is for the broker to take it back, and repay the purcliase-money, — the broker is warranted in so doing ; and if he has, in the mean time, paid over the money to his employer, he may recover it back from him.^ So, a stockbroker, who has made a contract on behalf of his principal, which the latter can- not complete, is authorized to pay the money necessary and proper to make good the diiference, and to meet the loss .paid on account of his principal, when that is in accordance with the rules established at the Exchange, although these rules may not • ' Post, § 260. = 2 Kent; Comm. Lect. 41, pp. 614^616 (4tli ed.) ; 8 Chittyon Com. &Manuf. 1% ; Paley on Agency, by Lloyd, 161, 162 (3d ed.) ; Id. 198. See Eagle Bank v. Smith, 5 Conn. 71. ' Ante, §§ 60, 73, 77. . ♦ Grant v. Ludlow, 8 Ohio St. 54. » Paley on Agency, by Lloyd, 4, 6, 9, 45, 204, 205, 209 (3d ed.) ; 1 Bell, Comm. 388, art. 412 (4th ed.) ; Id. pp. 478-482 (5th ed.) ; Ante, §§ 60, 73, 77 ; Post, § 110. « Young V. Cole, 3 Bing. N. Cas. 724. §§ 95-97.] NATURE AND EXTENT OF AUTHORITY. 107 be known to the principal.^ Indeed, so true is this doctrine, that, under ordinary circumstances, a deviation from such usages will, if a loss should occur therefrom, exclusively fall upon the agent, even though he acted with an anxious desire to promote the in- terests of his principal thereby .^ And, on the other hand, if the agent conducts his business according to such usages, he will be exonerated from all responsibility, even if it could be shown, that by a deviation from them he might have acted more beneficially for his principal.^ § 97. In the next place, as to the incidents, which are implied by law from the direct or principal authority. We have already had occasion to state, that every such authority carries with it, or includes in it, as an incident, all the powers, which are neces- sary, or proper, or usual, as means to effectuate the purposes for which it was created.* In this respect, there is no distinction, whether the aiithority given to an agent is general or special, or whether it is express or implied. In each case it embraces the appropriate means to accomplish the desired end.^ Thus (as we have seen), where an agent is employed to procure a negotiable bill or note, belonging to his principal, to be discounted, he may, unless specially restricted, indorse it in the name of the principal, and bind him by the indorsement.^ So, an order to send goods to the principal from a foreign country, implies a power to ship ■ Sutton V. Tatham, 10 Adolph. & Ellis, 27. ' Paley on Agency, by Lloyd, 3, 4, 5, 9, 10, 46, 47 ; Russell v. Hankey, 6 T. R. 12 ; Belchier v. Parsons, Ambler, 219, 220 ; Caffrey v. Darby, 6 "Ves. 496 ; Massey v. Banner, 1 Jac. & Walk. 241, 248, 249 ; 3 Chitty on Com. & Manuf. 197, 199. ' Moore v. Mourgue, Cowp. 480 ; Smith v. Cologan, 2 T. R. 188, note (a) ; Russell V. Hankey, 6 T. R. 12 ; Belchier v. Parsons, Ambler, 219, 220 ; War- wick V. Noakes, Peake, 68 ; Paley on Agency, by Lloyd, 9, 10, 21 (3d ed.) ; " Id. 45-47 ; 2 Kent, Comm. Lect. 41, pp. 622-624 (4th ed.). * Ante, §§ 68-60, 73, 85-88 ; Williams v. Getty, 31 Penn. St. 464. » 1 Bell, Comm. 387, art. 412 (4th ed.) ; Id. pp. 478-482 (5th ed.) ; Ante, § 68 ; Howard v. Baillie, 2 H. Bl. 618 ; Paley on Agency, by Lloyd, 189 (3d ed.) ; 3 Chitty on Com. & Manuf. 198-200 ; 1 Domat, B. 1, tit. 16, § 3, art. 10; Id. B. 1, tit. 16, § 3, art. 1, 2; Damon v. Inhab. of Granby, 2 Pick. 345; Ante, §§ 68-60, 73,- 86-88. « Ante, § 59 ; Fenn v. Harrison, 3 T. R. 757 ; s. 0. 4 T. R. 177 ; 1 Bell, Comm, 387, art. 412 (4th ed.) ; Id. pp. 478-482 (6th ed.) ; Paley on Agency, by Lloyd, 197, 198 (Sd ed.). 108 AGENCY. [CH. VI. them generally, so as to bind both the principal and the goods for the freight.^ § 98. In some cases, the nature and extent of the incidental authority turn upon very nice considerations, either of actual usage, or of implications of law. Thus, an agent, employed to make, or negotiate, or conclude a contract, is not, as of course, to be treated as having an incidental authority to receive pay- ments, which may become due under such contract.^ An agent, authorized to take a bond, is not to be deemed, as of course, entitled to receive payment of the money due under that bond.^ But, if he is intrusted with the continued possession of that bond, an implication of such authority may be deduced from that fact, in connection with the other.* So, an agent, authorized to receive payment, has not an unlimited authority to receive it in any mode which he may choose ; but he is ordinarily deemed intrusted with the power to receive it in money only.^ So, an agent, intrusted to receive payment of a negotiable or other ' 1 Bell, Comm. 387, art. 412 (4tli ed.) ; Id. pp. 478-482 (5th ed.) ; MoUoy de Jure Marit. B. 3, ch. 8, § 9 ; Paley on Agency, by Lloyd, 241. ' Paley on Agency, by Lloyd, 274-276 ; 3 Chitty on Com. & Manuf. 207, 208; Whitlock v. Waltham, 1 Salk. 167 ; Peck. o. Harriot, 6 Serg. & E. 149 j Puttock V. Ware, 3 Hurl. & Norm. 979 (Am. ed.) ; Wostenholm v. Davies, 2 Freem. 289 ; Henn v. Conisby, 1 Gh. Cas. 93 ; Gerard v. Baker, 1 Ch. Cas. 94, note ; Duchess of Cleveland v. Dashwood, 2 Eq. Abridg. 709 ; Williams v. Walker, 2 Sandf. Ch. 225. [* Authority given to a broker to sell property does not include authority to receive payment for the same, especially when the principal is known to the vendee. Higgins v. Moore, 34 N. Y. Ct. Ap. 417. See also Catterall v. Hindle, Law Rep. 1 C. P. 186.] ' See The River Clyde Trustees v. Duncan, 25 Eng. Law and Eq. 19. " Paley on Agency, by Lloyd, 274-276 ; 3 Chitty on Com. & Manuf. 207, 208; Whitlock v. Waltham, 1 Salk. 157; Peck v. Harriot, 6 Serg. & R. 149; Wostenholm v. Davies, 2 Freem. 289 ; Henn v. Conisby, 1 Ch. Cas. 93 ; Gerard V. Baker, ICh.Cas. 94, note ; Duchess of Cleveland v. Dashwood, 2 Eq. Abridg." 709 ; Williams v. Walker, 2 Sandf. Ch. 225. See also as to negotiable securi- ties, Matthews v. Haydon, 2 Esp. 510. ' Paley on Agency, by Lloyd, 278-280, 290, 291 ; Smith on Merc. Law, B. 1, ch. 5, § 4, pp. 124, 126 (3d ed. 1843); Favenc v. Bennet, 11 East, 88; Blackburn v. Scholfis, 2 Campb. 343 ; Todd v. Reid, 4 B. & Aid. 210 ; Russell V. Bangley, 4 B. & Aid. 396 ; Bartlett v. Pentland, 10 B. & Cressw. 760 ; Scott V. Irving, 1 B. & Adolph. 605 ; Barker v. Greenwood, 2 Y. & Coll. 416 ; Post, §§ 181, 216, 413, 429, 430 ; Underwood v. MchoUs, 17 C. B. 239. See Stew- art V. Aberdein, 4 Mees. & Wels. 211. §§ 97-100.] NATURE AND EXTENT OF AUTHORITY. 109 instrument, is ordinarily deemed entitled to receive it only, when and after, it becomes due, and not before it becomes due.^ But if there be a known usage of trade, or course of business in a particular employment or habit of dealing between the parties, extending the ordinary reach of the authority, that may well be held to give full validity to the act.^ § 99. Upon similar grounds, an agent employed to receive payment is not, unless some special authority beyond the ordinary reacli is given to him, clothed with authority to commute the debt for another thing ; or to compound the debt ; or to release it upon a composition ^ [or to receive the debtor's note for it*] ; or to pledge a note received for the debt, or the money when re- ceived ; ^ or to submit the debt or demand to arbitration ; ^ unless, indeed, the particular employment of the agent, or the general usage of business, or the habits of dealing between the parties, should raise a presumption the other way. The same principles seem to have been fully recognized and acted on in the civil law.'' § 100. Incidental powers are generally deduced either from the nature and objects of the particular act or agency, or from the ' See Paley on Agency, by Lloyd, 284, 290 ; Campbell v. Hassell, 1 Stark. 233 ; Parnther v. Gaitskell, 13 East, 437, per Bayley, J. » Ibid. ; Paley on Agency, by Lloyd, 290, 291 ; 3 Chitty on Com. & Manuf. 207, 208. [* A direction to sell for cash does not allow the agent to take a check payable the day after the sale, even though that be the customary way at the place of sale of making what are there called cash sales. No custom, unless ancient, uniform, notorious, and reasonable, can authorize such a de- parture from instructions. Hoel v. Storrs, 7 Wis. 263. See also Higgins v. Moore, 34 N. Y. Ct. Ap. 422.] ' Paley on Agency, by Lloyd, 290-292 ; 3 Chitty on Com. & Manuf. 207- 209. [* A receipt in full, where but a part of the debt is paid, gains nothing by being given by an agent under "a power coupled with an interest" and " irrevocable" in terms, even though the power expressly authorize the agent * to settle and compromise. Pratt v. United States, 3 Nott & Hun. Court of Claims Rep. 106.] ♦ McCuUock V. McKee, 4 Harris, 289. ^ Hays V. Lynn, 7 Watts, 624 ; Jones v. Farley, 6 Greenl. 226 ; Ante, § 78 ; Post, § 113, and note. , ° Caldwell on Arbitrations, 14, 15, 152, 153 ; Paley on Agency, by Lloyd, 191 ; Id. 291, n. (e) ; Goodson v. Brooke, 4 Campb. 163. And see Scarborough 0. Keynolds, 12 Ala. 262. [* A power of attorney " to sell and convey" does not authorize a voluntary conveyance to an agent to enable him to control and protect it. Dupont v. Wertheman, 10 Cal. 364.] '' 1 Domat, B. 1, tit. 16, § 3, art. 11 ; Dig. Lib. 3, tit. 3, 1. 60 ; Ante, § 70. 110 AGENCY. [CH. TI, particular business, employment, or character of the agent him- self.i jij some cases, the deduction is, in the absence of all contrary proofs, a mere inference of law ; in others, it is a mere matter of fact, or an inference of fact ; in others, again, it is a mixed question of law and fact.^ It may not be without use to give a few additional illustrations of these suggestions, although a thorough review of all the cases would necessarily occupy a dis- proportionate space in the present commentaries. § 101. And, first, as to the incidental powers by inference or intendment of law.^ A bailiff of a manor (it is said) may make leases at will without any special authority ; although he cannot make leases for years. The reason commonly assigned for this distinction is, that the appropriate business of such a bailiff is only to collect rents, gather fines, look after forfeitures, and to do other acts of a like nature, for the lord. But he hath no estate or interest in the manor itself; and, therefore, he cannot contract for any certain interest thereout, but he must have a special power for that purpose. But he may make leases at will without any special authority; because being appointed to collect and answer the rents of the manor to his lord, if he could not make leases at will, the lord might sustain great prejudice in case of his own absence, sickness, or other incapacity to make leases, when any of the former leases were expired. And such leases at will are for the benefit of the lord, and can be no ways prejudicial to him ; because he may determine his will, when he may think fit.* But the bailiff of an estate has no implied authority to pledge the credit of his principal by drawing or indorsing bills of exchange, although he is the party through whose hands all receipts and payments respecting the estate take place.^ ' See Hearne v. Keene, 6 Bosw. 685. = 8 Chitty on Com. & Manuf. 198-201 ; Ante, 68-60, 83. ' See Howard v. Baillie, 2 H. Bl. 618. * Bac. Abridg. Leases and Terms for Tears, I. 8 ; Paley on Agency, by Lloyd, 189, 190. See Cro. Jac. 177, 178. It may deserve eonsideration, whether this doctrine is applicable to the modern cases of a lease at will, when construed to be a lease from year to year, or to any leases, except those which are strictly leases at will. In EoUe's Abridg. title Sailiffe, 1. 25, it is laid down, that a bailiff of a manor may make a lease of a piscary for years, for which he cites 3 Hen. IV. 12 b. But although the point arose in that case, it does not seem to have been decided by the court, for the cause went off upon another issue. See Brook, Abridg. Baillie, pi. 40, 41. ' Davidson v. Stanley, 2 Mann. & Gr. 721 ; Ante, §§ 58, 59. §§ 100-102.] NATURE AND EXTENT OF AUTHOEITT. Ill § 102. Upon a similar ground of incidental authority by opera- tion of law, an authority to buy or sell goods includes the authority to execute the proper vouchers therefor; an authority "to do the needful," in respect to the fulfilment of an award, carries the incidental power to prepare a release, if required by the award ; ^ an authority to superintend the building of a meet- ing-house, to procure an architect, and to borrow money, if neces- sary, inchides an authority to make the necessary contracts for the building of the meeting-house ; ^ an authority to sell a horse includes [it has -been thought ^] a power to warrant him ; * a power to sell goods includes a power to warrant them ; ^ a power to buy a thing, without any statement at what price, includes the power to buy at any price ^ [and if the agent be not furnished with funds, to buy on credit '] ; a power to deliver seisin of lands includes the power to enter upon a lessee of the land, in order to make the livery ; ^ a power to sell goods includes a power to re- ceive payment [at the same time ^] on the sale ^° [but a simple power to sell does not authorize a sale at auction ^^J ; a power to recover and receive a debt includes the power to sue for the debt, and upon payment to make a proper release or discharge of the debtor.^ ■ Dawson v. Lawley, 4 Esp. 66 ; Ante, §§ 58-60, 83. ' Damon v. Inhab. of Granby, 2 Pick. 345. ' But see Scott v. McGrath, 7 Barb. 63 ; Bryant v. Moore, 26 Maine, 84 ; Lipscomb v. Kitrell, 11 Humph. 256. ■* Ibid. ; Ante, §§ 58, 59 ;' Bradford v. Bush, 10 Aid. 386 ; Helyearu. Hawke, 5 Esp. 73-76 ; 2 Kent, Comm. Lect. 41, pp. 617, 618, 621 (4th ed.) ; 3 Chitty on Com. & Manuf. 198-201. *. Andrews v. Kneeland, 6 Cowen, 354. « Dig. Lib. 17, tit. 1, 1. 3, § 1. ' Sprague v. Gillett, 9 Met. 91. 8 1 Liverm. on Agency, 105, 106 (ed. 1818) ; Co. Litt. 62 b. ' [But not at a subsequent time, unless there be some other proof of au- thority than a met'e power of sale. Seiple v. Irwin, 30 Penn. St. 513.] i" Capel V. Thornton, 3 Carr. & Payne, 352 ; Peck v. Harriot, 6 Serg. & K. 146 ; Hoskins v. Johnson, 5 Sneed, 469. But see Mynn v. JoliiFe, 1 Mood. 6 Rob. 826, cited post, § 108, note. " Towle V. Leavitt, 3 Foster, 860. '2 Ante, §§ 68-60 ; 1 Domat, B. 1, tit. 15, § 3, art. 10 ; Paley on Agency, by Lloyd, 290, 291 ; Com. Dig. Attorney, C. 15, citing Palmer, 394 ; 1 Liverm. on Agency, 105, 106 (ed. 1818). The civil law (as we have seen) adopted the same doctrine. Ad rem mobilem petendam datua Procurator, ad exhibendum recte aget. Dig. Lib. 3, tit. 3, 1. 56. Mr. Chitty (3 Chitty on Com. & Manuf. 112 AGENCY. [CH. VI. § 103. Upon grounds nearly similar, it has been held, that an agent to insure, has an incidental authority to abandon the prop- erty insured to the underwriters, in the case of a total loss.^ So, an agent to insure has, if the policy remains in his hands, an in- cidental authority to receive payment of losses thereon.^ So, an agent, employed to subscribe a policy for the principal, has an im- plied authority to adjust the loss upon the same policy ; and to receive payment in money ; but not to receive payment in any other manner.^ So, an agent authorized to buy a cargo for his principal, if no other means or funds are provided, has an inci- dental authority to give notes, or draw and negotiate bills on his principal for the amount.* § 103 a. In like manner, wherever a payment, if made by or to an agent, would be a good payment, and bind the principal as being within the scope of the employment of the agent, or other- 210) has laid it down as a general proposition, that, where an agent has any beneficial interest in the performance of the contract for commissions, &c., he may bring an action on the contract in his own name, though the principal may also sue in the same case. And he illustrates his remark by stating the case of a factor, a broker, an auctioneer, a policy broker, whose name is on the policy, and a shipmaster for freight ; in all which cases, he says, the agent may sue in his own name. The case of a broker, unless he is also a factor, or named in the contract, does not justify his position. And it is far from being generally true, that an agent, who has an interest in the contract for his commissions, may therefore sue. He can sue only, when, in contemplation of lawj he as well as his principal, is a party to the contract. Thus, if a factor should sell goods, and take a negotiable note in the name of the principal for the amount of the sales, he could not sue on the note so given in his own name, notwithstanding his commissions for the sale were included in the note. Ante, §§ 98, 101; Post, 391-404, 422, 450. ^ Chesapeake Ins. Co. v. Stark, 6 Cranch, 268, 272 ; 1 Emerig. Assur. ch. 5, § 4, pp. 141, 142 ; Ante, § 68. ^ Bousfield V. Croswell, 2 Campb. 545; Ante, § 58; Post, § 191. ' Richardson v. Anderson, 1 Campb. 43 n. ; Todd v. Reid, 4 B. & Aid. 210; Ante, § 58. The case of an insurance broker illustrates the general principle in a very clear manner. He has acquired, by usage, a known authority to adjust the loss, and receive payment thereof. But his authority to receive payment is, by the same usage, restricted to recovering payment in money ; and he cannot receive it so as to bind his principal in any other manner. Paley on Agency, by Lloyd, 278, 281-285; Todd ». Reid, 4 B. & Aid. 210; Russell v. Bangley, 4 B. & Aid. 395; Bartlett v. Pentland, 10 B. & Cressw. 760; Scott V. Irving, 1 B. & Adolph. 605; Campbell v. Hassell, 1 Stark. 233; Ante, §58. * Perrotin u. CucuUu, 6 La. 687 ; Ante, §§ 58, 69. §§ 103-105.] NATURE AND EXTENT OP AUTHORITY. 113 wise authorized by the principal, there a tender of payment by or to an agent will in like manner be deemed a good tender to or by the principal, and bind the parties accordingly.^ § 104. In the next place, as to the cases of incidental author- ity, as a mere inference of fact from the peculiar circumstances of the case. Thus, if a merchant has been in the habit of allowing particular clerks in his counting-house to sign and indorse notes on his account, this will furnish an inference, that it is incidental to their authority as such clerks, although not otherwise prop- erly pertaining to their duties.^ So, if an agent takes a bond for bis principal, and is allowed to retain possession of it, it is presumed, that he possesses an incidental authority to receive the money which is due on it [but this ceases whenever the bond is withdrawn^]. And, generally, the possession of a negotiable in- strument is deemed sufficient primd facie evidence of the title of the possessor to receive payment of it.* § 105. In the next place, as to cases where the question of inci- dental authority is a mixed question of law and fact. This most commonly arises where the point turns upon the consideration, whether the agent is a general or a special agent ; or whether, if a general agent, his special instructions are known to the other 1 Smith on Merc. Law, pp. 124, 125 (3d ed. 1843) ; Moffatt v. Parsons, 5 Taunt. 307 ; Goodland v. Blewith, 1 Camp. 477 ; Kirton v. Braithwaite, 1 Mees. & Wels. 310; Post, § 413. = Paley on Agency, by Lloyd, 161-169 (3d ed.) ; Id. 198, 211 ; Dyer «. Pearson, 3 B. & Cressw. 38, 42 ; Whitehead v. Tuckett, 15 East, 409, 410 ; Thorold v. Smith, 11, Mod. 87, 88 ; 3 Chitty on Com. & Manuf. 199, 200 ; Smith on Merc. Law, pp. 124, 125 (3d ed. 1843) ; Ante, §§ 69, 92 ; Smith v. East India Co. 16 Sim. 76. [* The delivery of a package for the purpose of transportation by an express company to a clerk of the agent of the company outside the office of such agent, is not such a delivery to said company as to make them liable for a loss thereof while it was in the hands of such clerk, and before it came into the actual possession of the agent, although such clerk was accustomed to receive such packages in the office of the agent, and receipt for them there ; and the fact that former agents of the company were accustomed to receive such packages from the plaintififs outside their office wiU make no difference. Cronkite v. Wells, 32 N. Y. Ct. Ap. 247.] ' Whitelocke v. Waltham, 1 Salk. 167 ; Paley on Agency, by Lloyd, 274, 275. See the River Clyde Trustees v. Duncan, 25 Eng. Law and Eq. 19 ; Williams v. Walker, 2 Sandf. Ch. 226. * Owen V. Barrow, 4 Bos. & Pull. 101 ; Hatfield v. Reynolds, 34 Barb. 612 ; Anon. 12 Mod. 564 ; Paley on Agency, by Lloyd, 276 ; 3 Chitty on Com. & Manuf. 207, 208. AGENCY. 8 114 AGENCY. [CH. VI. party. In each of these cases, the ultimate decision must rest, partly upon principles of law, and partly upon facts, limiting or controlling the application of those principles. Thus, if a per- son be a general agent, his acts, as such, will bind his principal, although he may have received private instructions narrowing or withdrawing his authority .^ But if those instructions are known to the other party, dealing with him, then those instructions be- come, as to such person, the sole guide and authority, by which to measure the extent of the rights and duties of the agent.^ § 106. But, by fai- the largest portion of incidental powers is deduced from the particular business, employment, or character of the agents themselves. Whatever acts are usually done by such classes of agents ; whatever rights are usually exercised by them; and whatever duties are usually attached to them; all such acts, rights, and duties are deemed to be incidents of the authority confided to them in their particular business, employ- ment, or character.^ These, indeed, are in some cases so well known and so well defined in the common negotiations of com- merce, and by the frequent recognitions of courts of justice, as to become matters of legal intendment and inference, and not to be open for inquiry or controversy. In other cases, indeed, they may be fairly open, as matters of fact, to be established by suitable proofs.* Thus, for example, the general incidental authorities, rights, and duties of auctioneers, of brokers, of factors, of cashiers of banks, of masters of ships, and of partners, are in general so well known and defined, as to be propounded as matters of law, not open to be discussed before a jury. Perhaps it may not be without use, even at the hazard of some repetition, to state some of the incidental powers of these classes of agents, which have been familiarly recognized in courts of justice, as they will, at the same time, suggest, some of the correspondent limitations upon those powers, and show their proper extent and determination. § 107. And, first, as to auctioneers. We have already had occasion to consider the nature and character of this class of 1 Ante, § 73; Post, §§ 127, 128, 443. = See ante, § 73 ; 2 Kent, Comm. Lect. 41, pp. 620, 621 (4th ed.) ; 3 Chitty on Com. & Manuf. 198-200; Paley on Agency, by Lloyd, 169, 211 (3d. ed.). 3 Pothier on Obligations, by Evans, n. 454-466 ; 1 Domat, B. 1. tit. 16, § 3, art. 1-3. * 3 Chitty on Com. & Manuf. 20; Paley on Agency, by Lloyd, 281-285. §§ 105-108.] NATURE AND EXTENT OP AUTHORITY. 115 agents, and to refer to the fact, that for some purposes, an auc- tioneer is deemed the agent of both parties.^ Thus, he has an incidental authority, virtute officii, to bind both the seller and the purchaser, by his memorandum of the sale and purchase.^ He has also an incidental authority to sue the purchaser in his own name, as being in some sort, not merely an agent, but a contracting party .^ He has also a right to prescribe the rules of bidding, and the terms of sale.* And his verbal declarations at the sale, at least where they do not contradict the written particulars of the sale, are admissible against the principal and binding on him, as an incident to his authority to sell.^ § 108. On the other hand, an auctioneer is deemed the agent of the seller at the sale only ; and, therefore, after the sale is made, he has no incidental authority to deal with the purchaser as to the terms, upon which a title is to be made, without some special authority for that purpose.^ He cannot delegate his authority to another person ; not even to his own clerk.^ He cannot sellon credit ; ^ neither can he sell at private sale.^ ' Ante, § 27 ; 3 Chitty on Com. & Manuf. 281. " Ante, § 27 ; Williams ». Millington, 1 H. Bl. 86 ; 3 Chitty on Com. & Manuf. 292. 3 Ante, § 27 ; Williams v. Millington, 1 H. Bl. 81, 84, 86 ; 3 Chitty on Com. & Manuf. 210 ; Robinson v. Rutter, 30 Eng. Law and Eq. 401 ; 4 El. & Bl. 954 ; Paley on Agency, by Lloyd, 362 (3d ed.) ; Atkyns v. Amber, 2 Esp. 493 ; Post, § 397. * Paley on Agency, by Lloyd, 257 ; 1 Liverm. on Agency, 77 (ed. 1818). ' See Paley on Agency, by Lloyd, 267 (3d ed.) ; Gunnis v. Exhart, 1 H. Bl. 289; Howard ». Braithwaite, 1 Ves. & B. 209, 210; Powell v. Edmunds, 12 East, 6 ; Ogilvie ». Foljambie, 3 Meriv. 53. Whether an auctioneer has, virtute officii, a right to warrant the goods, does not seem to be perfectly clear upon the authorities. In the case of The Monte Allegre, 9 Wheat. 645, 647, it was laid down, that sales at auction in the usual mode are never understood to be accompanied by a warranty. And it was added, that auctioneers are special agents, and have only authority to sell, and not to warrant, unless specially instructed so to do. The authorities, cited in support of the text, seem to inculcate a more modified doctrine. But in cases of judicial sales by marshals, and other public officers, they have no authority to warrant. The Monte Allegre, 9 Wheat. 644-646 ; Port v. The United States, 1 Dev. Court of Claims ; Puckett v. The United States, id. ; Yates v. Bond, 2 McCord, 382 ; Bashore v. Whisler, 3 Watts. 490. , « Seton V. Slade, 7 Ves. 276 ; Paley on Agency, by Lloyd, 208. ' Ante, §§ 13, 29 ; Coles i>. Trecothick, 9 Ves. 234. * 3 Chitty on Com. & Manuf. 218, and cases there cited. See Ante, § 60. ' Ante, § 27. Whether an auctioneer has authority to receive the whole 116 AGENCY. [CH. VI. § 109. Secondly, as to brokers. These, as we have seen, have an incidental authority to sign the contract for, and as the agent of, both parties.^ A broker employed to effect a policy, has an incidental authority to adjust losses upon it ; and, if employed to settle losses, he has authority to refer a disputed loss to arbitra- tion.^ A broker, employed to buy or sell without limitation of price, has the incidental authority to bind his principal by any price, at which he honestly buys or sells.^ So, a broker, author- ized to sell goods without any express restriction as to the mode, may sell the same by sample or with warranty.* Ordinarily, he cannot make the contract in his own name ; but ought to do it in the name of the principal.^ There are exceptions, however, by the usages of trade, as in cases of policies of insurance, which are usually made in the name of the policy broker, and he may then sue thereon.^ So, he cannot buy or sell on credit, except in cases justified by the usages of trade.'^ So, a broker has ordinarily no authority virtute officii, to receive payment for purchase-money on a sale of real estate, or only the deposit, may admit of some question. It was said, in argument by counsel, in Mynn v. Joliffe, 1 Mood. & Eob. 826, that he had only a right to receive the deposit. And it was held by Littledale, J., in the same case generally, that " an agent employed to sell [an estate] has no authority, as such, to receive payment." See, as to sale of per- sonal chattels, Capel v. Thornton, 3 Carr. & Payne, 362, and ante, §§ 27, 102. [ * If an auctioneer, who is authorized to sell goods on condition that pur- chasers shall pay a deposit at once, and the remainder of the purchase-money on or before delivery of the goods, receives payment by a bill of exchange, which falls due, and for which he receives cash, after his authority to sell is revoked, the purchaser is not discharged. Williams v. Evans, Law Kep. 1 Q. B. 352.] ' Ante, § 28-32 ; Paley on Agency, by Lloyd, 314, 316, and note. See, as to power of brokers to bind both parties. Greaves v. Legg, 34 Eng. Law and Eq. 489 ; 2 Hurl. & Norm. 210. " Ante, § 58; Richardson v. Anderson, 1 Campb. 43, note; Goodson o. Brooks, 4 Campb. 163; Paley on Agency, by Lloyd, 191, 192, 281; lEmerig. ch. 5, § 4, p. 141, ed. Boulay Paty. = Paley on Agency, by Lloyd, 208, 209 ; East India Co. v. Hensley, 1 Esp. 111. * Andrews v. Kneeland, 6 Cowen, 354 ; The Monte AUegre, 9 Wheat. 643, 644. ' 1 Domat, B. 1, tit. 17,-§ 1, art. 1 ; Ante, §§ 28-32. " Paley on Agency, by Lloyd, 362 ; 3 Chitty on Com. & Manuf. 210 ; Bar- ing V. Corrie, 2 B. & Aid. 137 ; Post, §§ 161, 272, 394. ' Ante, § 60 ; Paley on Agency, by Lloyd, 212 ; Henderson v. Barnewell, 1 T. & Jerv. 387. §§ 109, 110.] NATURE AND EXTENT OP AUTHORITY. 117 property sold by him ; and, if payment is made to him by the purchaser, it is at his own risk, unless from other circumstances the authority can be inferred.^ A broker also has no power to delegate his own authority to another person.^ § 110. Thirdly, as to factors. Factors, as we have seen, may sell in their own name the goods of their principal ; and they may buy goods in the like manner for their principal; and in each case the principal will be bound by their acts, in the same way and to the same extent, as if his own name were used.^ They have also an incidental authority to sell on credit, where the usage of trade justifies it.* So, factors, employed to ship goods, as well as to buy goods for their principal, have an in- cidental authority to bind the latter to the payment of the freight.^ And where they have a general authority to buy, or to sell, they are treated as general agents, and their acts bind their principal, even though they have violated their private and secret instructions.^ [Factors, however, like other agents, are bound to obey the directions of their employer, or they are re- * Paley on Agency, by Lloyd, 279, 280 ; Baring v. Corrie, 2 B. & Aid. 137 ; Campbell v. Hassell, 1 Stark. 233. [The contrary was held in Higgins v. Morse, 6 Bosworth, 344.] Insurance brokers are considered as having, by usage, an authority to adjust losses, and to receive payment of them. Ante, §§ 58, 103 ; Paley on Agency, by Lloyd, 281-286 ; Id. 291 ; Todd v. Reid, 4 B. & Aid. 210 ; Scott v. Irving, 1 B. & Adolph. 605 ; Bousfield v. Creswell, 2 Campb. 646 ; 1 Liverm. on Agency, ch. 8, § 2, p. 356 (ed. 1818) ; Richardson v. Anderson, 1 Campb. 43, note ; 1 Emerig. ch. 5, § 4. But then, they are re- stricted to the receiving of money in payment ; and are not at liberty to receive payment in any other manner, unless, indeed, there is a clear usage of trade governing the case. Ante, §§ 98, 103, and note ; Post, §§ 181, 413, 430 ; Paley on Agency, 281-285 ; Todd v. Reid, libi supra; Russell v. Bangley, B. & Aid. 396 ; Bartlett v. Pentland, 10 B. & Cressw. 760. [ * Higgins v. Moore, 34 N. Y. Ct. Ap. 417. The duty of a broker in general is ended when he has found a purchaser and has brought the parties together. Wright, J., ib.] ' Ante, §§ 13, 29. ' Ante, § 34 ; Paley on Agency, by Lloyd, 207. * Ante, § 60; Post, §§ 209, 226; 1 Domat, B. 1, tit. 16, § 3, art. 1, 2; Byrne v. Schwing, 6 B. Monr. 199 ; Greely v. Bartlett, 1 Greenl. 172 : Forestier V. Bordman, 1 Story, 43. * Ante, § 98 ; Paley on Agency, by Lloyd, 241. ' Paley on Agency, by Lloyd, 206, 207 ; 3 Chitty on Com. & Manuf. 198, 199 ; 2 Kent, Comm. Lect. 41, pp. 619, 620 (4th ed.). But see Day v. Craw- ford, 13 Geo. 608. 118 AGENCY. [CH. VI. sponsible.!] But factors cannot ordinarily delegate their author- ity to other persons.^ § 111. Factors have also a special property in the goods consigned to them ; and for many if not for most purposes (except as between themselves and their principal), they are treated as the owners of the goods. ^ We have seen, that con- signees for sale, such as commission merchants, are' truly de- scribed as factors.* The question has often been discussed, whether factors, or consignees for sale, have an implied authority to insure for their principal ; for there cannot be a doubt, that they may insure upon their own account to the extent of their own interest. The general doctrine now established is, that they may insure both for themselves and for their principal.^" But they are not positively bound to insure, unless they have received orders to insure, or promise to insure, or the usage of trade, or the habit of dealing between them and their principals, raises an ' Evans V. Root, 13 Seld. 186 ; Day v. Crawford, 13 Geo. 508. " Ante, §§ 13, 14. [ * The effect of the established customs and usages of the stock-exchange has been largely considered and discussed, in the appellate courts, both of law and equity, in England, within the last few months, in re- gard to the sale of shares of the joint-stock company of Overend, Gurney, & Co. The opinions in the two cases, of Coles v. Bristowe, 17 W. R. 105 ; Grissell v. Bristowe, id. 123, were delivered by the Lord Chancellor Cairns, and the Lord Chief Justice Cockburn, and, as might be expected, evince great power and dis- crimination. The result of both opinions seems to be, that one who employs a broker to transact business for him, upon the stock-exchange, must expect he will do it, with reference to the established customs and usages there, and if he does so transact it, his employer is bound by his acts, notwithstanding he gave express instructions to his broker to proceed in a different mode. This is upon the ground that such instructions not being known to the broker of the other party, he was justified in acting upon the expectation that the contract em- braced the well-known usages and customs of the exchange with reference to such transactions. We do not see why the same implications might not be held to exist as to the usages of other kinds of business.] ' Ante, §§ 84, 102, note. The question as to the precise time when the property may be said to vest in a factor, who is consignee under liabilities in advance, properly falls under the law of shipping, and especially under that branch of it which respects the right of stoppage in transitu. See Abbott on Shipp. p. 3, ch. 9, §§ 4-25 ; Holbrook v. Wight, 24 Wend. 169 ; Hall v. Smith, 1 Bos. & Pull. 563. * Ante, §§ 33, 34; 3 Chitty on Com. & Manuf. 204, 205 ; Martini v. Coles 1 M. & Selw. 140, 147. ' Waters v. Monarch Life & Fire Ins. Co. 34 Eng. Law and Eq. 116 : 5 El. & BI. 870. §§ 110-112.] NATURE AND EXTENT OP AUTHORITY. 119 implied obligation to insure.^ They may insure in their own names, or in the name and for the benefit of their principal. If they insure in their own name only, they may, in case of loss, recover the whole amount of the value of the property insured from the underwriters, and the surplus beyond their own interest, will be a resulting trust for the benefit of their principals.^ Whether, if they are mere naked consignees, to take possession of the goods only, without a power to sell, they have a right to insure for themselves, or for their principal, is perhaps more questionable ; but the point has not as yet become the subject of direct adjudication.^ § 112. It is to this consideration, that factors are to be treated as special owners of the property consigned to them, that we may refer many of the rights and powers attributed to them. They may sue in their own names for the prices of goods sold by them for their principal ; * and they are also liable to be sued for goods bought by them for their principal ; and of course they have a right in their own names to receive payments, to give re- ceipts for payments, and to discharge the debtors from their offi- cial transactions,^ at least, unless notice is given to the contrary by their principal.^ The circumstance, that factors are acting ' Paley on Agency, by Lloyd, 18-20; Id. 107, 108; Post, § 190; Smith v. Lascelles, 2 T: R. 189 ; Crauford v. Hunter, 8 T. E. 13 ; French v. Backhouse, 6 Burr, 2727 ; 1 Liverm. on Agency, ch. 8, § 1, pp. 325, 326 (ed. 1818) ; Mor- ris V. Summerl, 1 Cundy's . Marshall on Ins. 301 a, note ; Randolph v. Ware, 3 Cranch, 603 ; s. c. 2 Wash. ; Columbia Ins. Co. v. Lawrence, 2 Peters, 49. [ * Lee V. Adsit, 37 N. Y. Ct. Ap. 87. The power of an agent to insure the property of his principal, does not authorize an insurance in a mutual company which would make the principal an insurer of others. White v. Madison, 26 N. Y. Ct. Ap. 117.] = Ibid ; Post, §§ 16, 274, 394. ^ Paley on Agency, by Lloyd, 207, 208 ; Wolfe v. Horncastle, 1 Bos. & Pull. 323 ; Lucena e. Crawford, 3 Bos. & Pull. 98 ; Lucena v. Crawford, 5 Bos. &Pull. 324, per Lord Eldon ; Cornwall v. Wilson, 1 Ves. 509 ; De Forest v. Fulton Ins. Co. 1 Hall, 84, 106, 107, 134, 135. This whole subject underwent much examination in the case of Lucena v. Crawford, 3 Bos. & Pull. 75 ; s. c. 5 Bos. & Pull. 269. But the most ample and satisfactory discussion of it is to be found in the very elaborate opinions delivered by Mr. Chief Justice Jones, and Mr. Justice Oakley, in the superior court of New York, in De Forest v. The Fulton Ins. Co. 1 HaU, 84, 100-136. , * See White v. Chouteau, 10 Barb. 202. ' Drinkwater v. Goodwin, Cowp. 254; Johnson v. Usborne, 11 Adolph. & Ellis, 649 ; Post, § 400. « Paley on Agency, by Lloyd, 278, 285, 286 ; Post, §§ 401, 401 a. 120 AGENCY. [CH. VI. under a del credere commission, does not seem to make any dif- ference as to the validity or extent of their authority.^ § 113. On the other hand, factors have no incidental authority to barter the goods of their principal,^ or to pledge such goods for advances made to them on their own account, or for debts due by themselves ; ^ although they may certainly pledge them ' Paley on Agency, by Lloyd, 285, 286 ; Morris v. Cleasby, 4 M. & Selw. 566, 574, 576; Ante, § 33, and note; Thompson B. Perkins, 3 Mason, 232; 2 Kent, Comm. Lect. 41, p. 624 (4th ed.) ; 2 Stair, Instit. by Brodie, 921, 922, note; Post, § 216; Graham v. Ackroyd, 19 Eng. Law and Eq. 669; 10 Hare, 192. ' Ante, § 78 ; Guerriero v. Peile, 3 B. «fe Aid. 616 ; 2 Kent, Comm. Lect. 41, pp. 625-628 (4th ed.). 3 Paley on Agency, by Lloyd, 213-232 ; Post, § 389 ; 8 Chitty on Com. & Manuf. 204, 205 ; Rodriguez v. Heffernan, 5 John. Ch. 429 ; Benny v. Rhodes, 18 Mo. 147 ; Kelly v. Smith, 1 Blatchf. 290 ; 2 Kent, Comm. Lect. 41, pp. 625- 627 (4th ed.) ; 1 Bell, Comm. B. 3, P. 1, ch. 4, art. 412, pp. 888-394 (4th ed.) ; Id. pp. 485-488 (6th ed.) ; Boyson v. Coles, 6 M. & Selw. 14; Evans v. Potter, 2 Gall. 13, 14; Van Amringe v. Peabody, 1 Mason, 440. The point, whether a factor has an authority to pledge the goods of his principal, as has been already stated (ante, § 78, note), has undergone a good deal of discus- sion, and no small degree of doubt has been entertained upon it, until a recent period. The doctrine is now fully established in England, that he cannot pledge, although some of the judges have lamented the establishment of it. The same doctrine seems now generally established in America. (Rodriguez V. Heffernan, 5 John. Ch. 429 ; 2 Kent, Comm. Lect. 41, pp. '626, 626, 4th ed. ; Story on Bailm. §§ 326, 326.) In Scotland, as Mr. Bell informs us (1 Bell, Comm. art. 412, p. 388, 4th ed. ; Id. pp. 485-488, 6th ed.), the doctrine is directly the other way. The English doctrine is apparently founded upon the rule of the civil law, — Nemo plus juris in alium transferre potest, quam ipse haberet. (Dig. Lib. 60, tit. 17, 1. 64.) In the civil law, this rule was directly applied to the case of pledges. Jure pignoris teneri non posse, nisi qua3 obli- gantis in bonis fuerint ; et per alium rem alienam invito domino pignori ob- ligari non posse, certissimum est. (Cod. lib. 8, tit. 16, 1. 6). The same rule has been generally applied in the law of the continental nations of Europe, as for example, in France, Holland, and Italy, and also in Scotland. Still, it is but a general rule ; and therefore not absolutely superseding other considera- tions, growing out of the character of the parties, and the nature of the par- ticular authority conferred upon the party who is in possession of the property. The question is not, in many cases, whether a party can transfer that to another, which he does not in reality possess and own ; but whether a party, ostensibly clothed with the ownership of property by the real owner, and thus acquiring an apparent authority to dispose of. the whole interest, may not dispose of an interest in such property, less than the whole, to another innocent party. If one of two innocent persons must suffer by the wrongful act of a third person, it is certainly most conformable to equity and sound principles, that he should suffer, who has enabled such third person to hold himself out as competent to §§ 112, llS.j NATURE AND EXTENT OP AUTHORITY. 121 for advances lawfully made on account of their principal, or for advances made to themselves, to the extent of their own lien on the goods.^ So, factors may pledge the goods of their principal for the payment of the duties and other cha,rges due thereon ; and, indeed, for any other charges and purposes, whicli are allowed or justified by the usages of trade.^ [If a factor pledges do the act. The very circumstancp, that in England, the Parliament has inter- fered, and, by an express statute (6 Geo. IV. ch. 94) , amendatory of a prior act on the same subject (4 Geo. IV. ch. 83) enabled factors and others, not own- ers, to pledge goods for advances made to them, as well as for pre-existing debts, demonstrates the inconveniences of the old rule; and the importance of relaxing it in commercial transactions. This statute, and the constructions put upon it, are given at large in Paley on Agency, by Lloyd, pp. 219-233, and Appendix No. 1, pp. 403-407. An additional statute on the same subject has since been passed. (5th & 6th Victoria, ch. 39.) See Smith on Merc. Law, pp. 112-122; Id. Appendix, lii. ; Id. ccxvi. (8d ed. 1843). Mr. Bell, in his Commentaries (1 Bell, Comm. B. 3, P. 1, ch. 4, § 4, art. 412, pp. 388-394 (4th ed.) ; Id. pp. 405-488 (5th ed.), has given his own views in favor of the doc- trine that the factor has a right to pledge, with great clearness ; and has also expounded, in his text and notes, the present state of the law on this point among the continental nations of Europe. See also Paley on Agency, by Lloyd, 220, 221, note (3) ; Dan. & Lloyd's Mercantile Cases, 29, note to Blandy «. Allen ; Story on Bailm. §§ 324, 326, 327 ; Evans v. Potter, 2 Gall. 14; 3 Kent, Comm. Lect. 41, pp. 625-628 (4th ed.) ; Williams v. Barton, 3 Bing. 139 ; Queiroz v. Trueman, 3 B. & Cressw. 342 ; Laussatt v. Lippin- cott, 6 Serg. ■& R. 386. 1 Bell, Comm. B. 3, P. 1, ch. 4, art. 412, pp. 391, 392 (4th ed.) ; Id. pp. 385-389 (5th ed.) ; Pultney v. Keymer, 3 Esp. 182 ; Urquhart v. Mclver, 4 John. 103 ; McCombie v. Davis, 7 East, 5 ; Paley on Agency, by Lloyd, 166, 217 (3d ed.) ; 2 Kent, Comm. Lect. 41, pp. 626-628 (3d ed.). See Manni). ShiiFner, 2 East, 623, 529 ; Solly v. Rathbone, 2 M. & Selw. 298 ; Story on Bailm. §§ 325-327. Some of the American states, and particularly Rhode Island, New York, and Pennsylvania, have in substance, by. positive enact- ments, adopted the statute of 6 Geo. IV. ch. 94, on the subject of factors. 2 Kent, Comm. Lect. 41, p. 628, note (a), (4th ed.). ■■' Evans v. Potter, 2 Gall. 13. See 2 Kent, Comm. Lect. 41, pp. 627, 628 (4th ed.) ; Paley on Agency, by Lloyd, p. 217 ; Pultney v. Keymer, 3 Esp. 182 ; Laussatt v. Lippincott, 6 Serg. & R. 386. This I conceive to be the true doctrine, notwithstanding the language used in some of the authorities. The case of Pultney v. Keymer, 3 Esp. 182, may be deemed overruled by the latter cases, and especially by the cases of Shipley v. Kymer, 1 M. & Selw. 484 ; Solly V. Rathbone, 2 M. & Selw. 298 ; Cockran v. Irlam, 2 M. & Selw. 301 ; Martini v. Coles, 1 M. & Selw. 140, and Boyson v. Coles, 6 M. & Selw. 14, as to the point of advances made to an agent on his own account. See also Dau- bigny v. Duval, 6 T. R. 604; Queiroz v. Trueman, 3 B. & Cressw. 342 ; Mark V. Bowers, 16 Martin, 95. In Martini v. Coles, 1 M. & Selw. 140, Lord Ellen- 122 AGENCY. [CH. TI. goods of his principal without authority, he does not thereby lose his power to sell them ; and a bond fide purchaser may main- tain an .action against the pledgee therefor.i] § 114. Fourthly, as to cashiers of banks. It may be stated, as a general proposition, that the officers of a bank are held out to the public as having authority to act according to the general usage, practice, and course of business of such institutions, and that their acts, within the scope of such usage, practice, and course of business, bind the bank in favor of third persons, having no knowledge to the contrary .^ The cashier of a bank is usually intrusted with all the funds of the bank, in cash, notes, bills, and other choses in action, to be used from time to time for the ordinary and extraordinary exigencies of the bank. He is accustomed to receive directly, or through the subordinate oificers, all moneys and notes of the bank ; to deliver up all discounted notes, and other securities and property, when pay- ment of the dues for which they are given, have been made; borough and Mr. Justice Le Blauo recognized the right to pledge for advances and charges on account of the principal. The cases of Solly w. Rathbone, 2 M. & Selw. 298, and Cockran v. Irlam, 2 M. & Selw. 301, note, do, it must be admitted, seem to overturn the authority of Pultney v. Keymer, 3 Esp. 182, as to the point of advances and charges mtCde on account of the principal. But in each of those cases, there was this ingredient, that it was not the case of a mere pledge for advances and charges on account of the principal, but a delegation also of authority to the pledgee, as sub-agent or co-agent, to sell the goods, which was held to be tortious ; as an agent could not delegate his authority. Fro tanto, no doubt, the authority was void. But why should the pledge be held void, as to advances and charges made for the principal ? The ground seems to have been (whether it be satisfactory or not), that the sale by the pledgee as co-agent or sub-agent, made the whole proceeding tortious db initio. That doctrine would not apply to a mere pledge for advances and charges required to be made for the principal, where the original agent still retained his general authority. This whole subject is very accurately and clearly discussed, and the results stated, in Mr. Chancellor Kent's leamed-tlommentaries. 2 Kent, Comm. Lect. 41, pp. 625-628 (4th ed.). What circumstances wiU or wiU not amount to an implied authority to an agent, from whom advances are asked, to make a pledge for such advances, is a matter upon which the authorities leave much doubt; and especially the oases of Graham «. Dyster, 2 Stark. 21, and Queiroz v. Trueman, 3 B. & Oressw. 342 ; and Laussatt v. Lippincott, 6 Serg. & R. 386 ; Newbold v. Wright, 4 Rawle, 195. ' Nowell V. Pratt, 5 Cush. 111. ^ Minor v. Mechanics' Bank of Alexandria, 1 Peters, 46, 70 ; Fleckner v. Bank of the United States,. 3 Wheat. 360, 361 ; Frankfort Bank v. Johnson, 24 Maine, 490. §§ 113-115.] NATURE AND EXTENT OP AUTHORITY. 123 and to draw checks from time to time for money, wherever the bank has deposits and pecuniary funds. In short, he is consid- ered as the executive officer, through whom and by whom the whole moneyed transactions of the bank, in paying or receiving debts, and discharging or transferring securities, are to be con- ducted. It does not seem, therefore, too mucli to infer, in the absence of all positive and known restrictions, that he possesses the incidental authority, and, indeed, that it is his duty to apply the .negotiable funds, as well as the moneyed capital of the bank, to discharge its debts and obligations.^ Hence, it seems to be a natural conclusion, that, primd facie, the cashier of a bank possesses the incidental authority to indorse the negotiable securities held by the bank, in order to supply the wants and to promote the interests of the bank ; and any restriction upon such authority must be established by competent proofs, and will not be presumed to exist.^ So, also, he possesses authority to draw checks upon other banks, upon the deposits therein of the funds of his own bank. And whether a particular check is drawn by him in his official or in his private capacity, does not depend necessarily upon the form or face of the check, but, in case of doubt, the matter is open to explanation by parol evi- dence.^ § 115. But the cashier of a bank possesses no incidental authority to make any declarations, binding upon the bank, in matters not within the scope of his ordinary duties. Thus, for example, he has no authority to bind the bank upon a note being offered for discount, by his declaration to a person who is about to become an indorser, that he will incur no risk and no responsibility by becoming an indorser upon such discount.* So, if a cashier of a bank should promise to pay a debt which the corporation did not owe, and was not liable to pay, or if he should admit forged bills of the bank to be genuine, the bank ' Fleckner v. Bank of the United States, 8 Wheat. 360, 361. ' Wild V. Bank of Passamaquoddy, 3 Mason, 505. See also Folger v. Chase, 18 Pick. 63 ; Spear v. Ladd, 11 Mass. 94 ; Northampton Bank v. Pax- son, 11 Mass. 288 ; Corser u. Paul, 41 N. H. 24 ; Fay v. Noble, 12 Cush. 1 ; Elliot V. Abbott, 12 TT. H. 549. ' Mechanics' Bank of Alexandria ». Bank of Columbia, 5 Wheat. 326, 337. * Bank of the United States v. Dunn, 6 Peters, 51 ; Bank of the Metropolis D. Jones, 8 Peters, 12. 124 AGfENCT. [CH. VI. would not be bound by such promise or admission, unless it had authorized or adopted the act.^ But, if the cashier of a bank should pay to a bond fide holder a forged check drawn upon the bank, the payment could not be recalled, but would be oblig- atory ; for it is within the duty of the cashier to answer drafts drawn on the bank ; and the bank intrusts liim with an implied authority to decide upon the genuineness of the handwriting of tlie drawer of the check, when presented for payment.^ The same rule will apply to the payment of forged bank-bills of a bank, by the cashier, upon presentment by a hond fide holder. The payment cannot be recalled ; for the cashier is bound to know the genuine paper of the bank.^ It may, however, be generally stated, that the cashier of a bank cannot, by his acts, bind the bank, unless in cases within the scope of his authority.* [For this reason his declarations as to past transactions, as the payment of a note, have been said not to bind a bank.^] § 116. Fifthly, as to masters of ships. The master of a ship has various incidental powers, resulting from his official capacity, which have been long recognized in the maritime law, and are not now open to judiciary controversy. Thus,- for example, he has an incidental authority to make all contracts belonging to the ordinary employment of the ship ; as, for example, to let the ship on a charter-party, and to take shipments on freight, if such is the usual employment of the ship, but not otherwise ; ^ to hire seamen for the voyage.; to contract for necessary repairs and equipments for the voyage ;7 and to hypothecate the ship in foreign ports for moneys advanced to supply the necessities of ' Salem Bank v. Gloucester Bank, 17 Mass. 1 ; Merchants' Bank v. Marine Bank, 3 Gill. 97. ^ Levy V. Bank of the United States, 1 Binn. 27 ; Bank of the United States V. Bank of Georgia, 10 Wheat. 333. ^ Bank of the United States v. Bank of Georgia, 10 Wheat. 333 ; Salem Bank V. Gloucester Bank, 17 Mass. 1, 28. * Foster V. Essex Bank, 17 Mass. 479. See also 1 Bell, Comm. p. 480 (5th ed.) ; Frankfort Bank v. Johnson, 24 Maine, 490. * Franklin Bank v. Stewart, 37 Maine, 519. » Pickering v. Holt, 6 Greenl. 160. ' [Provost «. Patchin; 5 Seld. 239. A master of a steamboat has no au- thority, as such, to bind the boat or owners by a promissory note given to the pilot for his services. Gregg v. Bobbins, 28 Mo. 347. See Holcroa v. Hal- bert, 16 Ind. 257.] §§ 115, 116.] NATURE AND EXTENT OP AUTHORITY. 125 the ship, if they cannot otherwise be supplied.^ In these cases, and in others of the like nature, he often enters (as he may well do) into the contracts in his own name ; and he may thus be- ' Ante, § 36 ; Abbott on Shipp. P. 2, ch. 2, §§ 2-10 ; Id. ch. 3, § 1-34, p. 91-132 (Amer. ed. 1829) ; Gratitudine, 3 Kob. 265-278 ; 3 Kent, Coram. Lect. 46, pp. 158-164 (4th ed.) ; Boson v. Sandfbrd, 3 Mod. 321 ; s. c. 3 Lev. 268 ; 1 Show. 29, 101 ; Hussey v. Allen, 6 Mass. 163 ; James v. Bixby, 11 Mass. 34 ; Pickering v. Holt, 6 Greenl. 160 ; Runquist v. Ditchell, cited in Abbott on Shipp. P. 2, ch. 2, § 8; s. c. 3 Esp. 64; 1 Liverm. on Agency, 36, 36; Id. 164-196 (ed. 1818) ; 1 Bell, Coram. § 434, p. 413 (4th ed.) ;* Id. pp. 606, 606 (6th ed.) ; 1 Domat, B. 1, tit. 16, § 3, art. 3. [If the supplies could be ob- tained on the personal credit of the owner, the master has no right to pledge the ship in addition. Stainbank v. Penning, 11 C. B. 61 ; 6 Eng. Law and Eq. 412. Jervis, C. J., said, " It was conceded during the argument that this was not an instrument of hypothecation in the usual form, and it was not contended the master had authority to mortgage the ship ; but it was said that an hypothe- cation may be good without making the repayment of the advances depend upon the arrival of the ship ; and that, if the lender does choose to take upon himself the risk of the ship's return, and will be content not to demand maritime interest, the master may pledge both the ship and the personal credit of the owner. " The cases of The Tartar and The Nelson, upon which the plaintiffs' counsel relied, do not support the latter part of this proposition, for which they were cited. Where the master professes to hypothecate the ship, and also to pledge the credit of his owners, the court of admiralty will reject that part of the instrument which is directed to the latter object, and proceed in rem against the ship ; but the cases cited do not show that the court of admiralty will do this where the instrument is not in other respeqts in strictness an hypotheca- tion, because in each of those cases the return of the money depended upon the completion of the voyage, and the lender took upon himself the risk of the ship's return. " The case of Samsun v. Braggintou is, however, referred to, and although the report does not explain the grounds of the decision, nor very clearly dis- close the circumstances of the case, yet, as it is cited with approbation in Abbott on Shipping, it acquires additional authority from the known accuracy and high reputation of the learned author of that work, and is said to be an authority in point. We have been furnished with a copy of the decree, from which the following appear to be the facts of that case : ' Bragginton and Pitman were part-owners of the Dunsley galley, of which Pitman was master. On her homeward voyage, she was disabled and put into Jamaica, where Pitman applied to the plaintiff to advance the necessary funds for her repairs, " for the use and on account of himself and. Bragginton as owners,'' and as a further inducement, engaged with the plaintiff, as additional security for the repayment of the money, to hypothecate the ship. The plaintiff repaired the ship, expended for that pur- pose £80, and, at his request, Pitman drew upon Bragginton for that amount.and by way of additional security, as master of the ship, according to maritime usage 126 AGENCY. [CH. TI. come personally liable, as well as his principal, to fulfil the same ; ^ for he is treated, not as ordinary agent, but, as in some sort, and to some extent, clothed with the character of a in like cases, by deed poll, after taking notice of the damage and advance, did, for securing the payment of the said money, hypothecate to the plaintiff the ship, with the freight and cargo. The ship sailed from Jamaica, was captured and sold. Bragginton and Pitman received the insurance upon her loss, but Brag- ginton refused to accept the bills, and the plaintiff was not paid the amount which he had advanced for the repairs of the ship. Upon this statement, the plaintiff filed his bill against Bragginton and Nichols, the representative of Pitman, for repayment of the money advanced by him. Bragginton, by his answer, admitted the plaintiff's statement, but submitted that he was not liable to repay what Pitman might have paid for the repairs, because Pitman was indebted to him, and suggested that bottomry interest had been taken for the advance, and that, therefore, according to maritime custom, the lender took the risk of the voyage upon himself. There was no proof of this suggestion, and the master of the rolls decreed that the money advanced by the plaintiff in refitting the ship, ought to be established against Bragginton and Nichols, according to their respective interest. It is not very apparent how, upon the biU and answer so framed, the validity of the hypothecation could come directly in question. The plaintiff did not seek to establish his claim by that instru- ment, because it did not profess to charge the owners personally with the debt, and the defendant, Bragginton, failing to prove that bottomry interest had been taken, could not add to the deed, by implication, a condition that the repayment of the advances should depend upon the return of the ship. The decree seems to have proceeded on. the ground that joint owners were liable for money ad- vanced in a foreign country for necessary repairs. Whether the master had properly pledged the ship or not, the ship was lost, and the plaintiff was pro- ceeding upon the present liability of the joint owners. The reporter states that his honor took time to consider, and afterwards (as he was informed) determined that the ship was well hypothecated, and that the part-owners were liable. In Abbott on Shipping, the decree against the part-owners is stated positively ; but the learned author adds, cautiously, ' It is said also, that the ship was thought (not determined) to be well hypothecated.' He does not give the full weight of his unqualified sanction to this proposition ; and, upon examination, we think that this case is not to be considered as an authority conclusive against the more recent decisions to which reference has been made. " The deed now in question only professes to give such an interest as can be enforced in the admiralty court. In certain events, A. Gilmour & Co. may seize the vessel and cause her to be sold by process out of the admiralty of England, or any other court of vice-admiralty possessing jurisdiction ; and further, they are to have all the right, &c., by process of the courts of admiralty ' Post, §§ 161, 266-268, 294-299, 399. § 116.] NATURE AND EXTENT OP AUTHOEITT. 127 special employer or owner of the ship, anfl representing, not merely the absolute owner (dominus navis)^ but also the tem- porary owner, or charterer for the voyage (exercitor navis).^ or otherwise, which by law are given to the holders of bottomry bonds. The interest which they have in the ship is the right of proceeding in the admiralty court against the ship; but if, under similar circumstances, the admiralty court would not act because it has no jurisdiction, A. Gilmour & Co. have not an available interest. Now, the cases show that, under circumstances like the present, the court of admiralty would decline to act. In the case of The Atlas, Lord Stowell refused to entertain a suit of bottomry because the advance was payable within thirty days after the arrival of the ship, • or in case of the loss of the ship, then within thirty days next after the account of such loss should have been received in Calcutta or London.'' Upon appeal, the delegates decided that the bond was void because there was no sea risk to justify the taking of mari- time interest, and so it became unnecessary to determine the principal question ; but upon the argument of the question of jurisdiction, Hullock, B., observed that the condition destroyed the whole instrument. The more recent case of The Emancipation is an express authority upon the same point. There, upon the face of the bond, and according to legal inference, the payment of the money advanced did not depend upon the safe arrival of the ship, and for that reason the court pronounced against the bond. Upon these authorities, it is clear that, if The Hartland had arrived in this country, the plaintiffs could not have proceeded against her in the admiralty court ; they had, therefore, no interest in the vessel ; they have lost nothing, and upon this ground the de- ■ feudant is entitled to succeed. " But without reference to authority, we are of opinion, upon principle, that the master has not by an instrument of this nature authority to pledge the ship. By the Roman law, and still in those nations which have adopted the civil law, every person who had repaired or fitted out a vessel, or had lent money for those purposes, had a claim upon the value of the ship, without a formal instru- ment of hypothecation ; but by the law of England no such right can be acquired • Ante, § 36 ; Post, §§ 294^297. See Abbott on Shipp. P. 2, ch. 2, § 3, note (g), (Amer. ed. 1829), Dig. Lib. 14, tit. 1, 1. 1, §§ 1, 2, 15 ; 1 Liverm. on Agency, 70, 71 ; 2 Liverm. on Agency, 267-269 (ed. 1818). " 1 Liverm. on Agency, 85, 36 (ed. 1818) ; Id. 70, 71 ; Abbott on Shipp. P. 1, ch. 1, §§ 12, 13, and Story's note (i) to ed. 1829 ; Id. P. 2, ch. 2, § 2 ; Valego V. Wheeler, Cowp. 143 ; Soares v. Thornton, 7 Taunt. 627 ; Marcar- dier v. Chesapeake Ins. Co. 8 Cranch, 39 ; Taggard v. Loring, 16 Mass. 336 ; Descadillas v. Harris, 8 Greenl. 298 ; The Ship Fortitude, 3 Sumner, 228, 287- 239; 1 Bell, Comm. p. 414, § 434 (4th ed.) ; Id. pp. 505, 522, &c. (6th ed.). The exercitor navis is (as we have already seen) the actual employer in the particular voyage, whether he be the absolute owner, or only the hirer of the ship for the voyage. Ante, § 36, note ; Post, §§ 294, 296, 316 ; Abbott on Shipp. P. 2, ch. 2, § 3 (Amer. ed. 1829). 1 28 AGENCY. [CH. VI. In short, our law treats him as having a special property in the ship, and entitled to the possession of it, and not as having the mere charge of it, as a servant. On this account he may bring an action of trespass for a violation of that possession ; and where the freight has been earned under a contract to which he is a party, or under a bill of lading signed by himself, he may bring a suit for the freight due on the delivery of the goods.^ § 117. The civil law seems to have recognized similar rights and incidental authorities. The very definition of the master of the ship in that law indicated the nature and limits of his rights and authority. " Magistrum navis accipere debemus, cui totius navis cura mandata est ; " ^ and this applied equally, whether he was appointed by, and acted under, the general owner, or by and under the owner for the voyage. " Magistrum autem accipimus, except by express agreement, and a master can only make such an agreement if he act within the scope of his authority. The right to raise money upon bottomry can only be justified by necessity. If the master in a foreign country wants money to repair or victual his vessel, or for other necessaries, he must, in the first instance, endeavor to raise it upon the credit of the owners. If he can do so, he has no authority to hypothecate the vessel ; but if he cannot other- wise obtain the money, then he may hypothecate the ship, not transferring the property in the ship, but giving the creditor a privilege or claim upon it, to be carried into effect by legal process upon the termination of the voyage. As incident to this transaction, the lender may, if he think fit, insist upon maritime interest ; but whether he do so or not, the advance is made upon the credit of the ship, not upon the credit of the owners, and the owners are never personally responsible. There is no trace in our books, with the exception of Samsun v. Bragginton, of any case in which a master has been held to have authority to make a valid hypothecation of a ship, unless the payment of the money borrowed has been made to depend upon the arrival of the ship. There is, therefore, nothing to show that a master has authority to hypothecate in any other matter. Indeed, if the money be originally advanced upon the credit of the owner, and for any cause an hypothecation be made, even before the ship leaves the place where the advances were made, the bond will be void, and cannot be enforced. The Augusta. For these reasons, we are of opinion that the master had no authority to make an instrument like that in question, and that by the instrument the lender possesses no interest in the ship. The money advanced for repairs was a mere debt from the owners to the lender, and it being admitted that a mere debt from the owners to the assured for repairs and disbursements could not legally be made the subject of an insurance, it follows that the defendant is entitled to judgment." ' Shields V. Davis, 6 Taunt. 65, 67 ; 3 Chitty on Com. & Manuf. 210. See also Williams v. Millington, 1 H. Bl. 81, 84. » Dig. Lib. 14, tit. 1, 1. 1, § 1 ; Pothier, Pand. Lib. 14, tit. 1, n. 1. §§ 116-118.] NATURE AND EXTENT OP AUTHORITY. 129 non solum, quem exercitor praeposuit, sed et eum, quem magister.^ Omnia enim facta magistri debet prsestare, qui eum prseposuit ; alioquin contrahentes decipientur ; et facilius hoc in magistro quam institore admittendum propter utilitatem.^ Non autem ex omni causEi praetor dat in exercitorem actionem ; sed ejus rci nomine, cujus ibi praepositus fuerit ; id est, si in cam rem prae- positus sit ; utputa, si ad onus vehendum locatum sit ; aut aliquas res emerit utiles naviganti ; vel si quid reficiendae navis causEl contractum vel impensum est ; vel si quid nautae, operarum nomine, petent." ^ And the authority of the master was also enlarged, according to the ordinary employment of the sliip. " Magistri autem imponuntur locandis navibus, vel ad merces, vel vectoribus condxicendis, armamentisve emendis ; sed etiam si mercibus emendis vel vendendis fuerit praepositus, etiam hoc nomine obligat exercitorem."* In these latter cases, liowever, the master acts rather as supercargo, or as factor, than in his original character as master.^ § 118. The authority of the master of the ship over -the cargo is, under ordinary circumstances, limited to tlie mere duty of the transportation and preservation of it. But he may, under cir- cumstances of great emergency, acquire a superinduced author- ity to dispose of it, from tlie very nature and necessity of the case ; and his acts will then become completely binding and obligatory upon the owners of the cargo, whether they are mere shippers, or are also owners of the ship. It is true that, in the ordinary course of tilings, he is treated as a mere stranger to the cargo, beyond the purposes of safe custody and conveyance, as above stated ; yet, in such cases of instant, and unforeseen and unprovided for necessity, the character of agent and supercargo is forced upon him, not by the immediate act and appointment ' Dig. Lib. 14, tit. 1, 1. 1, § 5 ; Potliier, Pand. Lib. 14, tit. 1, n. 1 ; Ante, § 86 ; Pothier on Oblig. n. 448. " Dig. Lib. 14, tit. 1, 1. 1, § 5 ; Pothier, Pand. Lib. 14, tit 1, n. 3 ; Post, §128. ' Dig. Lib. 14, tit. 1, L 1, § 7 ; Pothier, Pand. Lib. 14, tit. 1, n. 7 ; 1 Do- mat, B. 1, tit. 16, § 3, art. 3 ; Abbott on Shipp. P. 2, ch. 2, § 3, p. 91, note (g), (Amer. ed. 1829). ^ Dig. Lib. 14, tit. 1, 1. 1, § 3 ; Pothier, Pand. Lib. 14, tit. 1, ri. 7. ' 1 Liverm. on Agency, 69, 70, 72 (ed. 1818) ; 1 Emerig. Assur. ch. 7, § 5, p. 193 ; Ante, § 36 ; Williams v. Perry, 13 Wend. 68 ; Freeman v. East India Co. 5 B. & Aid. 617. XGENCT. 9 130 AGENCY. [CH. VI. of the owner, but by the general policy of the law.^ Thus, for example, in the case of a jettison, becoming necessary in the course of a voyage, the master has a right to order any goods to be thrown overboard. He may select what articles he may please ; he may determine the quantity, and he is limited to no proportion. Nay, in cases of extreme necessity, where the lives of the crew cannot otherwise be saved, he may throw the whole cargo overboard. 2 So, the master may, in like manner, sacrifice a part of the cargo for the ransom of the ship, or bind the ship and cargo for the ransom.^ So, if he is driven into a port of necessity, and the cargo is perishable, the master may sell it, as he may also sell the ship, in a case of urgent * necessity.^ [But the sale of the vessel is not within the general authority of the master.^ So, he may sell a part of the cargo, or he may hy- pothecate the whole cargo and freight, as well as the ship, for repairs of the ship, to enable her to perform the voyage.^ In cases, also, of an abandonment by the owner of the ship or cargo to the underwriters, for a total loss during the voyage, the master becomes the agent of the underwriters by operation of law, with the same general rights and authorities, as he would have in regard to the owner. ^ § 119. The restrictions upon the incidental powers of the master are apparent from the preceding statements. Ordinarily, ' Ante, §§ 116,117 ; Post, § 164; lb. ; The Gratituijine, 3 Rob. 265, 257,268; Searle v. Scovell, 4 John. Ch. 222 ; 1 Emerig. Assur. ch. 12, § 16, pp. 429- 433 ; Douglass v. Moody, 9 Mass. 648. In cases of this sort, the master assumes very much the rights and responsibilities of the negotiorum gestor of the civil law, as to which see Story on Bailm. §§ 81-83, 189, 190 ; Pothier, Contrat de Mandat, ch. 2, art. 3, § 1, n. 51; Ersk. Inst. B. 1, tit. 3, § 37; 2 Kent, Comm. Lect! 41, pp. 616, 617, and note (a), (4th ed.) ; Dig. Lib. 3, tit. 5, 1. 2, 3. ' The Gratitudine, 3 Rob. 256, 257, 268. " lb. 265, 258. " The Eliza Cornish, 26 Eng. Law and Eq. 579 ; Robertson v. Clarke, 1 Ring. 446 ; Hunter v. Parker, 7 Mees. & Wels. 322. * The Gratitudine, 8 Rob. 265, 259. ^ Johnson v. Wingate, 29 Maine, 404. ' The Gratitudine, 3 Rob. 256, 260-265 ; Abbott on Shipp. P. 2, ch. 3, §§ 17-33, and notes to Amer. ed. 1829 ; The Packett, 3 Mason, 266 ; United Ins. Co. V. Scott, 1 John. 106; American Ins. Co. v. Coster, 3 Paige, 323; 3 Kent, Comm. Lect. 46, pp. 271-275 (4th ed.). * Gen. Int. Ins. Co. v. Ruggles, 12 Wheat. 408. §§ 118, 119.] NATURE AND EXTENT OP AUTHORITY. 131 indeed, these incidental powers belong to the master only in the absence of the owner or employer of the ship ; as, for example, when the ship is in a foreign port, and not in the home port. For, when the owner or employer is present, he is known to possess, and is presumed to exercise, his own right of general superintendence over the conduct of the ship and its concerns, unless some presumption of a delegation of authority to the master can be implied, either from the usage of trade, or the particular employment of the ship, or the conduct and proceed- ings of the parties.^ Even in the home port, however, there are many acts which are so invariably confided to the master, as to amount to a positive delegation of authority. Thus, the master is ordinarily intrusted with the authority of shipping the officers and crew ; ^ of superintending the ordinary outfits, equipments, repairs, and -other preparations of the vessel for the voyage ; of lading and unlading the cargo ; and, in cases of a general ship, of receiving goods on board on freight, and of signing bills of lading for the same.^ [But he has no authority to sign bills of lading and bind his owners, for goods not actually received on board the vessel.*] These are such usual incidents of his official ' Abbott on Shipp. P. 2, ch. 2, §§ 1-10, and notes, ib. (Amer. ed. 1829) ; 1 Bell, Comm. pp. 412, 413, §§ 433, 434 (4th ed.) ; Id. pp. 506, 509 (5th ed.) ; 1 Liverm. on Agency, 154-196 (ed. 1818) ; James v. Bixby, 11 Mass. 34, 36, 37. ' Blunt's Com. Dig. 162 ; 1 Emerig. Assur. ch. 7, § 6, p. 193 ; Cleirac, Jugemens d'Oleron, 1 Valin, Com. Lib. 2, tit. 1, art. 5, p. 384 ; Consolato del Mare, ch. 55, 195. » 1 Bell, Comm. pp. 413, 414, § 434 (4th ed.) ; Id. pp. 506, 607 (6th ed) ; Abbott on Shipp. P. 2, §§ 1-11 ; Id. ch. 3, §§ 1-34 (Amer. ed. 1829), and notes, ib. ; 3 Kent, Comm. Lect. 46, p. 158-176 (4th ed.) ; 1 Liverm. on Agency, 167, 168 (ed. 1818) ; James v. Bixby, 11 Mass. 34, 36, 37. * [Grant v. Norway, 2 Eng. Law and Eq. 337 ; 10 Com. B. 666. Jervis, C. J., said, " This case was argued before my brothers Cresswell, Williams, and myself: it arises on a special verdict, and presents a question of consid- erable importance, both to those who take bills of lading on the faith of their representing property which passes by the transfer of them, and to the ship- owner, who is attempted to be bound by all bills of lading that a captain may think proper to sign. The point presented by the several pleas is substantially one and the same ; namely, whether the master of a ship, signing a bill of lading for goods which have never been shipped, is to be considered as the agent of the owner in that behalf, so as to make the latter responsible. The authority of the master of a ship is large, and extends to all acts that are usual and necessary for the use and management of the vessel, but it is subject to several 132 AGENCY. [CH. VI. character, that notice of a positive prohibition would seem indis- pensable, in order to affect third persons with his want of due authority to do the acts.^ well-known limitations. He may make contracts for the hire of the ship for carrying, or he may vary that which the owner has made ; he may take up moneys in foreign ports, and, under certain circumstances, at home, for necessary disbursements for repair, and bind the owners for repayment ; but his authority is limited by the necessity of the case, and he cannot make them responsible for money not actually necessary for those purposes, although he may contend that it is. He may make contracts to carry goods on freight, but cannot bind the owner to carry freight free. So, with regard to goods put on board, he may sign the bill of lading, and acknowledge the nature, quality, and condition of the goods. Constant usage shows that the master has a general authority; and if a more limited authority is given, the party not informed of it is not affected by such limitation. The master is a general agent to perform all things relating to the usual employment of his ship ; and his authority; as such agent, to perform all such things as are necessary in the line of business in which he is employed, cannot be limited by any private orders not known to the party in any way dealing with him. This general proposition is laid down by Mr. Smith in his Mercantile Law, p. 559. Is it, then, usual in the management of a ship carrying goods on freight, for the master to give a bill of lading for goods not put on board ? All parties concerned have a right to assume that the agent has authority to do all that is necessary ; but the very nature of the bill of lading shows that it ought not to be signed till the goods are on board, for it begins by describing them as ' shipped.' Indeed, it was not contended that such a general authority was usual. In Lickbarrow v. Mason, 2 T. R. 63, BuUer, J., says, 'A bill of lading is an acknowledgment by the captain of having received the goods on board his ship : therefore it would be a fraud in the captain to sign such a bill of lading if he had not received goods on board, and the con- signee would be entitled to his action against the captain for the fraud.' It is not contended, in this case, that the captain had any real authority to sign the bill of lading unless the goods had been shipped ; nor can we discover any ground on which a party, taking a bill of lading by indorsement, could be justified in assuming he had authority to sign such bill, whether the goods were put on board or not. If, then, from usage and the general practice of ship- masters, it is generally known that the master derives no such authority from his position as master, the case must be considered as if the party taking the bill of lading had notice of the express limitation of authority, and in that case undoubtedly he could not claim to bind the owner by the bill of lading signed, when the goods therein mentioned were not on board. It resembles the case of goods or moneys taken up by the master on the pretence that they were wanted for the ship, when in fact they were not; or a bill of exchange accepted ^ 1 Bell, Comm. p. 414, § 434 (4th ed.) ; Id. pp. 506, 607 (5th ed.) ; 1 Liverm. on Agency, 157, 158 (ed. 1818). §§ 119, 119 a.] NATURE AND EXTENT OP AUTHOKITT. 133 § 119 a. In respect to borrowing money, and obtaining sup- plies for the necessary use of the ship, upon the credit of the owner, the master lias an implied authority so to do, not only in a foreign port, but also in the home port, provided the owner is absent, and no communication can be had with him without great delay and prejudice, and the necessity is pressing.^ But if the means of communication with the owner are reasonably within tlie reach of the master, and the necessity is not pressing, and no injurious delay or prejudice will arise from waiting until such communication is had, the authority of the master to bor- row money, or to procure supplies upon the credit of the owner, will not be implied. [And in like manner, if the supplies have been procured or the repairs made, the master cannot afterwards borrow money on the owner's credit, to pay for them.^] or indorsed by procuration, wlien no such agency existed. jUexander v. Mackenzie, 13 Jur. 346; 6 C. B, 767, shows that the words 'by procuration' would give notice to all parties that the agent is acting with a special and lim- ited authority; and, therefore, the party taking such a bill has to establish by evidence the authority. See Smith v. McGuire, 8 Hurl. & Nor. 554. It is not enough, for that purpose, to show that other bills, similarly accepted and indorsed, have been paid, although such evidence, if the acceptance was gen- eral by the agent in the name of the principal, would be evidence of a general authority to accept in the name of the principal. So, here, the general usage gives notice to all people, that the authority of the captain to give bills, of lading is limited to such goods as have been put on board ; and the party taking the bill of lading, either originally or by indorsement of the goods, which have never been put on board, is bound to show some particular authority to the master to sign the bill in that form. There is very little to be found in the books on ■ this subject ; it was discussed in the case of Berkley v. Watling, 7 Adolph. & Ellis, 29; 'but that case was decided on another point, although Littledale, J., said, in his opinion the bill of lading was not conclusive, under similar circumstances, on the ship-owner. For these reasons, we are of opinion that the issue should be entered for the defendants, and that the defendants are entitled to the judgment of the court." See also Hubbersty v. Ward, 18 Eng. Law and Eq. 551 ; 8 Exch. 830 ; Coleman v. Riches, 29 Eng. Law and Eq. 323 ; 16 C. B. 104; Farmers & Mechanics' Bank v. Butchers & Drovers' Bank, 16 N. y. 151 ; i Kernan, 628.] ' Johns V. Simonsj 2 Adolph. & Ellis, New Kep. 426, 430 ; Arthur v. Bar- ton, 6 Mees. & Wels. 138 ; Stonehouse v. Gent, 2 Adolph. & Ellis, New Rep. 431, note ; Hawtayne v. Bourne, 7 Mees. & Wels. 696, 699, 600, by Mr. Baron Parke. See also The Alexander, cited 2 Park on Insur. by Hildyard, Append. 1067, 1061 (8th ed.), 1842. [= Beldon v. Campbell, 6 Exch. 886 ; 6 Eng. Law and Eq. 473. Parke, B. said, "This was a case tried before my brother Piatt, in which the question for 134 AGENCY. [CH. TI. § 120. The master is also usually intrusted with the discharge, as well as the hiring, of the officers and seamen of the ship in the home port ; and in foreign ports he possesses this incidental au- consideration is, whether the owner of a vessel, who resided at Newpoj-t) was liable to the plaintiff, who was a merchant at Newcastle, for a. sum of money which had been borrowed by the master of the defendant's ship at Newcastle, for the purpose of paying a debt contracted for towing the vessel by a steam- tuo- into port, and also for a sum paid to a master carpenter on a Saturday night, the master carpenter having been employed to do repairs upon the ves- sel. We are of opinion that, in this case, the rule must be absolute. There is no doubt of the power of the master by law (but some as to what extent it goes) to bind the owner. The master is appointed for the purpose of conduct- ing the navigation of the ship to a favorable termination, and he has, as inci- dent to that employment, a right to bind his owner as to all things necessary ; that is, upon the legal maxim, Quando aliquid mandatur et omne per quod per- venitur ad illud. So, therefore, the master has perfect authority to bind his principal, the owner, as to all repairs that are necessary for the purpose of bringing the ship to the port of destination ; and he has also the power, as inci- dental to his employment, to borrow money, but only in a case where ready money is necessary ; that is to say, where there are certain payments made in the course of the voyage, and for which ready money is required, and credit is never given. He has the power to borrow money for the purpose of making those payments. An instance of this is the payment of the port dues which are required to be paid down in cash, or lights or any dues which are also required to be immediate payments ; and so also there was a case referred to in the course of the argument, where a ship, being at the termination of a long voy- age, and ordered to proceed on another, money borrowed to pay the wages of seamen who would not go on the second voyage without being paid, was held to be necessary. Robinson v. Lyall. But these cases of borrowing money do not apply to any case in which the owner of a vessel is near the spot, so as to be convenient to be communicated with ; and before the master has any right to make him debtor to a third person, he must consult his owner, to see whether he is willing to be made a debtor to a particular third person, or whether he will refuse to pay the money at all. In this case, it appears to us there are two objections to the plaintiff's recovering either one sum or the other. With respect to the sum of money borrowed for the purpose of paying the steam-tug, it appears that the vessel was off the port of Newcastle, which was its ultimate point of destination, at the time when the steam-tug was necessary in order to tow the vessel into the river Tyne, and the owner of the steam-tug did not object to tow the vessel in without any previous payment.- If the owner of the steam-tug had said, ' I will not tow you in unless you will actually pay the money down,' then it would have been competent for the master to have bor- rowed the money for that purpose, in order to pay him. It could not be ex- pected that he should wait at the mouth of the harbor, where it would have been impossible for him to have communicated with the owner living at New- port, a great distance, in order to ascertain whether he should borrow the money §§ 120, 121.] NATURE AND EXTENT OP AUTHORITY. 135 thority as a necessary discretion, to be exercised by him, in cases where the law does not prohibit the discharge for the general welfare of the voyage.^ In a foreign port, also, he possesses the incidental authority, if he should be disabled by illness, or other- wise, to appoint a new master to serve in his stead, whose acts will, under such circumstances, become obligatory upon the owner.^ § 121. The incidental powers of the master are, however, re- stricted to those which belong to the usual employment or busi- ness of the ship.^ Thus, if the ordinary employment of the ship or not ; but in this case, the owner of the steam-tug did not make any such stipulation, but the vessel was towed into Newcastle, and the money was not paid to the owner of the steam-tug until after several days had elapsed, during which it was perfectly competent for the master to have written to Newport, which was only a day's post (as it happened) , and to have got the owner's answer, to ascertain from whom he should borrow the money. Instead of that, he goes four or five days afterwards and borrows from the plaintiff a sum of money for the purpose of paying this debt to the owner of the steam-tug — a debt which the owner of the vessel was liable to, because it was within the power of the master to employ the steam-vessel for the owner ; but we think he had no power, under these circumstances, to borrow money in order to pay a debt for which the owner of the vessel was already responsible by the original contract, and still less that he could borrow that money without consulting the owner, who was living at Newport, and was able to be communicated with before it was absolutely necessary to pay the money, even supposing the master had made a contract to pay it on a particular day. So that there are two objections to the plaintiff's right to recover that sum. And with regard to the other, which was a sum paid to a master shipwright, who wanted it to pay his workmen on a Saturday night, we also think it is impossible to say that was a payment of necessity, because the completion or progress of the work on Monday was not a necessity, for the vessel had arrived at her place of destination. It was per- fectly competent for the master to have consulted the owner, and to have ascer- tained whether he would have the repairs gone on with, even supposing it were necessary to have paid the money down in order to accomplish that purpose. "We think in neither of these cases are they payments of necessity, or fall within the authority the master has, by the general law, to bind his owner by the con- tracts that he enters into."] ' Blunt's Com. Dig. 162 ; 3 Kent, Comm. Lect. 46, pp. 183, 184 (4th ed.) ; Abbott on Shipp. P. 2, ch. 4, § 6, and note (2) ; Id. § 15, and note (1) to Ameri- can ed. 1829 ; Robinet v. Ship Exeter, 2 Rob. 261. " 1 Bell, Comm. § 434, p. 413 (4th ed.) ; Id. pp. 506, 507 (5th ed.) ; Rocc. de Nav. n. 5 ; Pothier on Marit. Contr. by Cushing, p. 26, n. 48 ; Id. p. 142, note. ' See Gen. Int. Ins. Co. v. Ruggles, 12 Wheat. 408 ; Peters v. Ballestier, 3 Pick. 495. 136 AGENCY. [CH VI. has been the carrying of cargoes on the sole account of the owner, the master has no implied authority to let the ship to freight, even in a foreign port. So, if the ordinary employment has been to take goods on board on freight, as a general ship, and common carrier, the master will not be presumed to pos- sess authority to let the ship on a charter-party for a special and diiferent business. So, if the ship has been accustomed to carry passengers only, the master will not be presumed to possess authority to take goods on board on freight. So, if the ship has been accustomed to the coasting trade, or the fisheries, or to river navigation only, the master will not be presumed to possess authority to divert the ship into another trade, or business, or voyage on the high seas.^ § 122. So, the authority of the master as to repairs of the ship, even in a foreign port, is United to those which are neces- sary repairs.^ But by necessary repairs we are not to understand such repairs only as are indispensable for the safety of the ship, or the due performance of the voyage, but such also as are rea- sonably fit and proper for the ship, or for the voyage, under all the circumstances of the case.^ § 123. And this doctrine is conformable, also, to the rules laid down in the civil law. For, it is said in that law, that the nature of the appointment governs in respect to the contracts of the master. If the master is appointed solely to receive freight- money, but not to let the ship to freight, and he should let the ship to freight, the owner will not be bound. On the other hand, if he is appointed to let the ship to freight, but not to re- ceive the freight-money, the owner will not be bound by his receipt of the freight-money. In like manner, if he is appointed ' 1 Liverm. on Agency, pp. 155, 166 (ed. 1818) ; Boucher v. Lawson, Kep. Temp. Hard. 85, 194; Abbott on Shipp. P. 2, ch. 2, §§ 7-10, and note (3), (Amer. ed. 1829) ; 1 Sell, Comm. § 434, p. 413 (4th ed.) ; Id. pp. 506, 507 (5th ed.) ; Pothier on Marit. Contracts, by Gushing, n. 48, p. 26. [An agent at a foreign port to whom a ship is addressed for loading under a charter-party, has no implied authority to vary the contract by substituting another and a dis- tinct port of loading, or a different quality or description of cargo. Sickens v. Irving, 7 J. Scott (n. s.), 165. J = Ante, §§ 119, 119 (a). ' Abbott on Shipp. P. 2, ch. 3, § 3 (Amer. ed. 1829) ; Webster M. Seekamp, 4 B. & Aid. 352; Arthur v. Barton, 6 Mees. & Wels. 138, 143; The Ship Fortitude, 3 Sumner, 228. §§121-123 a.] NATURE AND EXTENT OF AUTHORITY. 137 to carry passengers, he is not at liberty to carry goods ; and so conversely. And in all such cases, the owner will not be bound by his acts, when he exceeds his authority. So, if tlie master is appointed to let the ship to carry certain kinds of merchandise, which she is adapted to carry, such, for example, as grain, or hemp, and the master should let the ship to carry marble, or other materials, it will be an excess of authority not binding upon the owner.i Some of these cases may not appear as cogent in our law as they do in the Roman law ; but they sufficiently illustrate the general principle.^ § 123 a. Hitherto we have principally looked to the powers ' Dig. Lib. 14, tit. 1, 1. 1, § 12 ; Pothier, Pand. Lib. 14, tit. 1, n. 7 ; 1 Liverm. on Agency, 155, 156 (ed. 1818) ; Abbott on Ship, P. 2, ch. 2, § 3 (Amer. ed. 1829). ' The exact text of the Roman law is as follows : Igitur praepositio certain legem dat contrahentibus. Quare, si eum prasposuit navi ad hoc solum, ut vec- turus exigat, non ut locet ; quod foi:te ipse locaverat ; none tenebitur exercitor, si magister locaverit : vel si ad locandum tantum, non ad exigendum, idem erit dicendum : aut, si ad hoc, ut vectoribus locet, non ut mercibus navem prsestet, vel contra, modum egressus, non obligabit exercitorem. Sed, et si, ut certis mercibus earn locet prajpositus est, put^ legumini, cannabse ille marmoribus, vel alia materia, locavit ; dicendum erit non teneri. Qusedam enim naves onerarise, qusedam (ut ipsi, dieunt) imj3aTiiyol (id est, vectorum ductrices) sunt. Et plerosque mandare scio, ne vectores recipiant. Et sic, ut certa regione, et certo Mari negotietur ; ut ecoe, sunt naves, quae Brundusium k Cassiopa, vel k Dyrracchio vectores trajiciunt, ad onera inhabiles. Item qusedam fluvii ca- paces, ad mare non sufficientes. Dig. 14, tit. 1, 1. 1, § 12. I interpret this passage as Mr. Abbott and Mr. Livermore do, as applicable to cases where the extent of the authority of the master is deduced from the general employment of the ship. 1 Liverm. on Agency, 165, 156 (ed. 1818) ; Abbott on Shipp. P. 2, ch. 2, § 3, p. 92 (Amer. ed. 1829) . The modern commercial code of France (as indeed do the general principles of the maritime law of other nations) - recognizes distinctions as to the authority of the master of a ship in most cases coincident with those of the common law. Thus, the commercial code of France (art. 223), gives authority to the master to engage the crew employed In the ship, in concert with the owner, when the master is at his place of resi- dence. The master (art. 232), in the place of the residence of the owners or their agents, has no general authority to repair the vessel, or to buy sails, cord- age, or other things for her use, or to take up money on bottomry, or to let the ship on freight. See also' 1 Bell, Coram. §§ 433-436, pp. 412-414 (4th ed.) ; Id. pp. 622-630 (5th ed.) ; Pothier on Marit. Contracts, by Gushing, n. 48, 49, pp. 26-28 ; Id. n. 163, pp. 98, 99 ; Jacobsen's Sea Laws, by Frick, ch. 1, pp. 32-91, 3 Kent, Comm. Lect. 46, pp. 158-176 (4th ed.) ; 2 Stair, Inst, by Brodie, Supp. pp. 963, 969, 970, 971, 973, 980, 981 ; Ante, §§ 117, 119, 121, 122. 138 AGENCY. [CH. VI. of masters of ships ; but it may not be amiss here to glance at a general duty arising out of their employment, which indeed might equally apply to other agents under the like circumstances. It is, that the master of a ship is bound to employ his whole time and attention in the service of his employer ; and it is even said that a custom, allowing such master to trade upon his private account during the voyage, cannot be maintained.^ Perhaps this is laying down the rule somewhat too broadly, for if there be an express agreement between the master and owner that he shall be at liberty to trade upon his own account during the voyage, that would certainly be obligatory ; and if there be a known usage in the particular trade to the same effect, that would seem to afford an equally conclusive presumption of an implied agreement to tbe same effect. § 124. Sixthly. Partners. It is not our design to enter upon any general examination of the rights, powers, and duties of partners at large. That would properly belong to a distinct treatise on partnership. But we shall here advert only to the general authorities deduced by law from the very nature and character of partnership. Every partner is (as we have seen), in contemplation of law, the general and accredited agent of the partnership ; ^ or, as it is sometimes expressed, each partner is prcepositus negotiis societatis ; and may consequently bind all the other partners by his acts in all matters, which are within the scope and objects of the partnership. Hence, if the part- nership be of a general commercial nature, he may pledge or sell the partnership property ; he may buy goods on account of the partnership; he may borrow money, contract debts, and ' Gardner ». McCutcheon, 4 Beavan, 634. » Ante, § 37 ; 2 Bell, Comm. § 1230, p. 615 (4th ed.) ; Id. p. 616 (6tli ed.), Pothier on Oblig. by Evans, u. 83 ; Story on Partn. ch. 7, §§ 101-103. How far one partner could bind the firm by his acts under the Roman law, is a matter which has been much discussed by the civilians. That each partner could bind all the others, when there was an express or implied authority for this pur- pose, is not doubted. But in the absence of an express authority, the diffi- culty has been to ascertain what circumstances should afford a just presump- tion of authority. The mere relations of partnership did not, as it should seem, in the Koman law, create such an implied authority as it does in our law. See Ersk. Inst. B. 3, tit. 3, § 20 ; 1 Stair, Inst. B. 1, tit. 16, § 6 ; 1 Domat, B. 1, tit. 8, § 4, art. 16 ; Dig. Lib. 17, tit. 2, 1. 68 ; Pothier, Pand. Lib. 17, tit. 2, n. 26. §§ 123 a-126.] NATURE and extent op authority. 139 pay debts on account of the partnership ; he may draw, make, sign, indorse, accept, transfer, negotiate, and procure to be discounted, promissory notes, bills of exchange, checks, and other negotiable paper, in the name and on account of the part- nership. ^ § 125. The restrictions of this implied authority of partners to bind the partnership, are apparent from what has been already stated. Each partner is an agent only in and for the business of the firm ; and therefore his acts beyond that business will not bind the firm.^ Neither will his acts, done in violation of his duty to the firm, bind it, when the other party to the transaction is cognizant of, or co-operates in such breach of duty.^ And- upon the principle already suggested, as to agents executing sealed in- struments, one partner cannot execute an instrument, under seal, which shall bind the other partners, in virtue of his general authority ; but he must have a special authority under seal ; * or the deed must be executed by him in the presence of the other partners.^ § 126. Before qiiitting this subject of the nature and extent ■ Ante, § 37; see CoUyer on Parte. B. 3, ch. 1, §§ 1 and 2, pp. 215-230; 3 Kent, Comrn. Lect. 43, pp. 40-48 (4th ed.) ; Story on Partn. ch. 7, §§ 101- 125 ; Bayley on Bills, ch. 2, § 6 (5th ed.) ; Id. ch. 6, § 1 ; 3 Chitty on Com. & Manuf. 236-23.8 ; South Carolina Bank v. Case, 8 B. & Cressw. 427 ; Vere V. Ashby, 10 B. & Cressw. 288 ; Ex parte Bondonus, 8 Ves. 540 ; Ex parte Agace, 2 Cox, 312 ; United States Bank v. Binney and Windship, 5 Mason, 176 ; s. c. 5 Peters, 529 ; 1 Domat, B. 1, tit. 16, § 3, art. 7 ; Ersk. Inst. B. 3, tit. 3, § 20 ; 2 Bell, Comm. § 1203, pp. 616-618 (4th ed.) ; Id. pp. 615-617 (5th ed.) ; 1 Stair, Inst, by Brodie, B. 1, tit. 16, §§ 4, 6 ; Pothier on Oblig. by Evans, n. 83. = Hasleman v. Young, 5 Adolph. & Ellis, 833. ^ 3 Kent, Comm. Lect. 43, pp. 46, 47 (4th ed.) ; Collyer on Parte. B. 3, ch. 1, p. 212, and § 1, p. 215 ; Id. ch. 2, § 1, pp. 256-286 ; 2 Bell, Comm. § 1203, pp. 615-618 (4th ed.) ; Id. pp. 616-618 (5th ed.) ; Ex parte Agace, 2 Cox, 312, 316 ; Sandilands v. Marsh, 2 B. & Aid. 673. * Ante, § 37 ; Ante, § 51 ; Post, §§ 242, 252 ; 3 Kent, Comm. Lect. 43, pp. 47, 48 (4th ed.) ; Harrison v. Jackson, 7 T. R. 2"07 ; Collyer on Partn. B. 3, ch. 2, § 1, pp. 256, 257. Contra, Cady v. Shepherd, 11 Pick. 400 ; refer- red to ante, § 49, and note, § 51 ; Post, §§ 242, 252 ; Story on Partn. §§ 117-123. In consequence of this doctrine, or, at least, to clear away all doubts on the subject, a statute has been passed by Congress (Act of 1823, ch. 149, § 25 ; 3 U. S. Laws, p. 1889, Story's ed.) by which one partner is authorized to bind the firm in bonds given to the custom-house for duties. = Ante, §§ 49, 51 ; Story on Partn. §§ 117-123. 140 AGENCY. [CH. TI. of the authority of agents, it seems proper to refer again to what has been already incidentally stated, the distinction commonly taken between the case of a general agent and that of a special agent, the former being appointed to act in his principal's affairs generally, and the latter to act concerning some particular ob- ject.i In the former case, the principal will be bound by the acts of his agent within the scope of the general authority con- ferred on him, although he violates by those acts his private in- structions and directions, which are given to him by the princi- pal, limiting, qualifying, suspending, or prohibiting the exercise of such authority under particular circumstances.^ In the latter case, if the agent exceeds the special and limited authority con- ferred on him, the principal is not bound by his acts, but they be- come mere nullities, so far as he is concerned ; unless, indeed, he has held him out as possessing a more enlarged authority.^ [Thus, > Ante, §§ 17-20 ; Id. § 73 ; Post, §§ 131-133 ; Tomllnson v. CoUett, 3 Blackf. Ind. 436 ; Walker v. Skipwith, Meigs's Term. 502. " Ante, § 73 ; Post, §§ 127-133 ; Allen v. Ogden, 1 Wash. Cir. 174; Bryant V. Moore, 26 Maine, 84; Fitzsimmons v. Joslin, 21 Vt. 129. [* Where by the printed rules .of a railroad company the baggage master was forbidden to take articles of merchandise on passenger trains, and he nevertheless took a carpet,^ the passenger not knowing the rule, the company was held liable for the loss of the carpet. Minter v. Pacific R. R. 41 Mo. 503.] ' Post, § 127, and note, §§ 128-133 ; 2 Kent, Comm. Lect. 41, pp. 620, 621 (4th ed.) ; 3 Chitty on Com. & Manuf. 198 ; Paley on Agency, by Lloyd, 198, 199, 207, 208 (3d ed.) ; Smith on Mercantile Law, 58-62 (2d ed) ; Id. ch. 5, § 4, pp. 107, 108 (3d ed. 1843) ; 1 Liverm. on Agency, 94, 95 (ed. 1818) ; Id. pp. 107-119 ; Fenn v. Harrison, 3 T. R. 757 ; Howard v. Braithwaite, 1 Ves. & B. 209, 210 ; Whitehead v. Tuckett, 15 East, 408 ; Pickering v. Busk, 16 East, 38, 43, 44; 1 Bell, Comm. § 412, p. 387 (4th ed.) ; Id. p. 478 (5th ed.) ; Munn V. Commission Co. 15 John. 44, 54; Eossiter v. Rossiter, 8 Wend. 494; Andrews v. Kneeland, 6 Cowen, 354; Waters ». Brogden, 1 Young & Jerv. 457; Brown v. Trantum, 6 Mill. La. 47; Beals v. Allen, 18 John. 363; Herbert v. Kneeland, 24 Boston Law Rep. 495 ; 32 Vt. 316 ; Hatch, v. Taylor, 10 N. H. 538 ; Allen ». Ogden, 1 Wash. Cir. 174. The same principle is applied in the case of partnership. Each partner is held out to the public as the general agent of the partnership ; and, consequently, his acts will bind it, notwithstanding he may have violated his private instructions or the express terms of the secret articles of partnership. Sandilands v. Marsh, 2 B. & Aid. 673 ; United States Bank v. Binney, 5 Mason, 176 ; s. c. 5 Peters, 529 ; Coll- yer on Partn. by Phillips, ch. 1, pp. 212-215, and note ; 3 Kent, Comm. Lect. 43, pp. 40-50 (4th ed.) ; 3 Chitty on Com. & Manuf. ch. 4, pp. 236-241. Mr. Smith, in his work on Mercantile Law, p. 69 (2d ed.), has stated the distinc- tion between general and special agents very perspicuously. "A general agent §§ 126, 127.] NATURE AND EXTENT OF AUTHORITY. 141 if an agent intrusted with money to invest at legal interest exact a bonus for himself, without the knowledge or assent of his prin- cipal, it does not constitute usury in the latter so as to affect the security in his hands. ^] § 127. The ground of this distinction is the public policy of preventing frauds upon innocent persons, and the encouragement of confidence in dealings with agents. If a person is held out to third persons, or to the public at large, by the principal, as hav- ing a general authority to act for and to bind him in a particular business, or employment, it would be the height of injustice, and lead to the grossest frauds, to allow him to set up his own secret and private instructions to the agent, limiting that authority; and thus to defeat his acts and transactions under the agency, when the party dealing with him had, and could have, no notice of such instructions. In such cases, good faith requires that the principal should be held bound by the acts of the agent, within the scope of his general authority ; for he has held him out to the public as competent to do the acts, and to bind him thereby. The maxim of natural justice here applies with its full force, that he, who, without intentional fraud, has enabled any person to do an act, which must be injurious to himself, or to another innocent party, shall himself suffer the injury rather than the innocent party, who has placed confidence in him.^ The maxim is is a person," says he, " whom a man puts in his place, to transact all his business of a particular kind ; thus, a man usually retains a factor to buy and sell all goods, and a broker to negotiate all contracts of a certain description, an attor- ney to transact all his legal business, a master to perform all things relating to the usual employment of his ship, and so in other instances. The authority of such agent to perform all things usual in the line of business in which he is employed, cannot be limited by any private order or direction, not known to the party dealing with him. But the rule is directly the reverse concerning a particular agent, that is, an agent employed specially in one single transaction ; for it is the duty of the party dealing with such a one, to ascertain the extent of his authority ; and if he do not, he must abide the consequences.'' S. P. Smith on Merc. Law, ch. 5, § 4, pp. 107, 108 (3d ed. 1843). This is true, if the agent is not held out as possessing a more enlarged authority. See also Woodin V. Burford, 2 Crompt. & Mees.. 391 ; Jordan v. Norton, 4 Mees & Wels. 165 ; Sykes v. Giles, 6 Mees. & Wels. 645 ; Post, § 127, note, § 128, note ; Smith v. East India Co. 16 Simons, 76. ' [Condit V. Baldwin, 7 Smith (N. Y.), 219. And commencing a suit on the note was held no ratification of such act of the agent.] ' Paley on Agency, by Lloyd, 194, 200, 201 (8d ed.) ; Whitehead v. Tuckett, 142 AGENCY. [CH. TI. founded in the soundest ethics, and is enforced to a large extent by courts of equity.^ Of course the maxim fails in its applicar tion, when the party dealing with the agent, has a full knowledge lo East, 401, 409 ; 3 Kent, Comm. Lect.' 41, pp. 620, 621 (4th ed.) ; 3 Chitty on Cora. & Manuf. 202 ; Carmichael v. Buck, 10 Rich. 332 ; Guerreiro v. Peile, 3 B. & Aid. 616 ; Ante, § 73. See North River Bank v. Aymer, 3 Hill, 262; Commercial Bank of Buffalo v. Kortright, 22 Wend. 348, 361; Post, § 470; Locke V. Stearns, 1 Mete. 560. The general ground, on which this distinction is taken, is well stated in a note to Paley on Agency, by Lloyd (Paley on Agency, by Lloyd, p. 199, note). "A general authority," says Mr. Lloyd, "arises from a general employment in a specific capacity ; such as factor, bro- ' ker, attorney, &c. When we can say of any one, that he is A.'s broker, or A.'s factor, or A.'s attorney, he has then a general authority, in the sense in which it is used in the text. But of course, this does not imply that he has an un- limited or unrestrained authority. A. may give his broker, or his factor, or his attorney, any instructions that he pleases ; and the effect will be this : As between himself and his broker, &c., any deviation from these instructions will render the latter accountable to him for any loss he may sustain thereby. But, as regards himself and third parties, who may have dealt with the broker, &c., any limitation of the authority not communicated to them, can have no effect. A third person has a right to assume, without notice to the contrary, that the person whom A. employs generally as his broker, &c., has also an unqualified authority to act for his principal in all matters which come within the scope of that employment. In the case of a particular agent, that is, one whom A. may have employed specially in that single instance, no such assumption can reason- ably be made. It then becomes the duty of the party dealing with one whom he knows to be acting for another in the transaction, to ascertain by inquiry the nature and extent of the authority ; and if it be departed from or exceeded, he must be content to abide the consequences. The distinction thus pointed out is perfectly consonant with right reason ; and if duly attended to will satisfac- torily explain all the cases which follow in the text." In Fitzherbert v. Mather, 1 T. R. 12, 16, Mr. Justice BuUer said, " It is the common question every day at Guild-hall, when one of two innocent persons must suffer by the fraud or negligence of a third, which of the two gave credit." See also Hearn v. Nichols, 1 Salk. 289. ' 1 Story on Eq. Jurisp. §§ 384-394 ; Fitzherbert v. Mather, 1 T. R. 12, 16 ; Duke of Beaufort ». Neeld, 12 Clark & Finnelly, 290. It has been already suggested, ante, § 73, that the same general principle pervades all cases of agency, whether the party be a general or a special agent. But, nevertheless, the distinction between general and special agents is not unfounded or useless. It is sufficient to solve many cases. But the difficulty is, that from the general language in the books, and the general contrast made between general and special agents, there is great danger in applying the distinction to solve cases to which it does not properly apply. The principle, which pervades all cases of agency, whether it be a general or a special agency, is this : The principal is bound by all acts of his agent, within the scope of the authority which he holds §§ 127, 128.] NATURE AND EXTENT OF AUTHORITY. 143 of the private instructions of the agent, or that he is exceeding his authority .1 § 128. The same rule was also fully recognized, and applied him out to the world to possess ; although he may have given him more limited private instructions, unknown to the persons dealing with him. And this is founded on the doctrine, that where one of two persons must suffer by the act of a third person, he who has held that person out as worthy of trust and con- fidence, and having authority in that matter, shall be bound by it. It will at once be perceived, this doctrine is equally applicable to all cases of agency, whether it be the case of a general, or of a special agency. When I hold out to the public a person as my agent in all my business and employment, he is deemed my general agent ; and all acts done within the scope of that business bind me, notwithstanding I have privately limited his authority by special instructions. Why.'' Because he is externally clothed with an unlimited authority over the subject-matter, and third persons might otherwise be de- frauded by his acts. In such a case, he is not less a general agent as to third persons, than if he had received no private limitations of his authority. As between himself and his principal, his authority is not general, but quoad hoc, is limited. In the same case, if the principal had privately revoked his whole authority, he would still be bound. So, if he had privately limited the author- ity to a single act in the same business (and he would accordingly be, between himself and his principal, a special agent), still the principal would be bound. Precisely the same rule applies to a special agency. If A. authorizes B. to purchase ten bales of cotton for him, and holds out to all the public, that B. has full and unlimited authority to purchase that cotton, every person, dealing with that agent, has a right to deal with him as a person having a general authority as to that purchase ; and the principal will be bound by his acts, not- withstanding he may have privately limited the agent as to price, quality, &c. In the case of a general agency, the principal holds out the agent to the public as having unlimited authority as to all his business. In the case of a special agency, like that above stated, the principal holds out the agent to the public as having unlimited authority as to a particular act, subject, or purchase. In each case, therefore, the same general principle applies. If the principal hold out to the public his agent, as having a general authority to bind him in one case, or in all cases, he who deals with any such a^ent innocently, ought to be protected, and the principal to be bound. The cases of special agency to which the rule, founded upon the distinction between general agency and special agency, properly applies, are where the principal does not hold out the agent as possessing any particular authority ; and, of course, where the nature and extent of the real authority, conferred on him, furnish the only rule to govern the case ; and the party, dealing with the agent, must act at his own peril. We do not, in legal language, or common parlance, call an agent a general agent, ' Howard v. Braithwaite, 1 Ves. & B. 209 ; Stainer v. Tysen, 3 Hill, 279 ; Barnard v. Wheeler, 24 Maine, 412. 144 AGENCY. [CH. VI. with rigorous exactness in the Roman law, even in cases other- wise highly favored. Even a creditor, havhig a pledge, was bound, if he suffered the owner to hold himself out as competent to dispose of the pledge, with the consent of the creditor. " Cred- itor, qui permittet rem veniri, pignus dimittit.^ Si consensit ven- ditioni creditor, liberatur hypotheca." ^ So, the acts of a ship- master, as a general agent within the scope of his authority (as we have seen), were, for the like reason, deemed binding on his employer, although he had disobeyed his private instructions.^ " Omnia enim facta magistri debet preestare, qui eum praBposuit; alioquin, contrahentes decipientur ; et facilius hoc in magistro, quam Institore, admittendum, propter utilitatem.* Here, we see, that the same grounds of the rule are given, as in the com- mon law, to prevent any deception upon the innocent and un- wary, and also to further and sustain the public policy of invit- ing confidence in all matters of navigation, trade, and business.^ § 129. The same distinction was familiarly exemplified in the civil law, by the case of an authority, even to buy a single thing for the principal. If the agent was authorized to buy generally, without fixing any price for the thing, the principal was bound by his purchase, at any price whatsoever. But, if the agent was limited as to price, then he could not bind the incipal beyond that price. The former was a general, the latter a limited, authority. " Et quidem, si mandavi tibi, ut aliquam rem mihi emeres, nee de pretio quidquam statui, tuque emisti; utrin- que actio nascitur. Quod, si pretium statuit, tuque pluris emisti; quidam negaverunt, te mandati habere actionem, etiamsi paratus esses, id, quod excedit, remittere ; nam iniquum est, non esse merely because there are no limitations on his authority ; nor do we call a man a special agent, because he is limited by special orders, quoad that agency. Neither do we call a man a general ' agent, who is appointed to do one act, or to make one purchase, although he has unlimited authority to do that act. There would be no just logical objection to such distinctions ; but the cases in the books do not make them. And if they did, the distinctions would not meet to solve the difficulties in the authorities. Ante, §§ 73, 127, note; Post, §§ 129, 133. ' Dig. Lib. 50, tit. 17, 1. 168 ; 1 Story on Eq. Jurisp. § 394. " Dig. Lib. 20, tit. 6, 1. 7; 1 Story on Eq. Jurisp. § 394. ' Ante, §§ 119, 120. ♦ Dig. Lib. U, tit. 1, 1. 1, § 5; Ante, § 117; 1 Domat, B. 1, tit. 16, § 3, »'•'• 3- ' Ante, §§ 126, 127. §§ 128-131.] NATURE AND EXTENT OF AUTHORITY. 145 mihi mecum illo actionem, si nolit ; illi vero, si velit, meciim esse. Sed Proc.ulus recta eum, usque ad pretium statufcum, acturum existimat ; quae sententia sane benignior est." ^ § 130. Pothier has laid down the general rule in a very satis- factory manner, and says, " But the contract made by my agent, in my name, would be obligatory upon me, if he did not exceed the power with which he was ostensibly invested ; and I could not avail myself of having given him any secret instructions, which he had not pursued. His deviation from these instruc- tions might give me a right of action against himself, but could not exonerate me in respect of the third person, with whom he had contracted conformably to his apparent authority ; otherwise, no one could be safe in contracting with the agent of an absent person." ^ § 131. The illustrations in our law of the same distinction between general agents, and limited or special agents, may be familiarly seen in the common case of factors known to be such. They possess a general authority 'to sell ; and if in selling they violate their private instructions, the principal is nevertheless bound.^ And it makes no difference, in a case of this kind, whether the factor (if known to be such) has been ordinarily employed by the principal to sell, or whether it is the first and only instance of his being so employed by the principal ; for still, being a known factor, he is held out by the principal as possess- ing, in effect, all the ordinary general authority of a factor, in relation to the particular sale.* But if a common person, not being a factor, should be authorized to make a like sale, and he should violate his private instructions, and deviate from his authority in the sale, the principal would not be bound. In ' Dig. Lib. 17, tit. 1, 1. 3, §§ 1, 2; Id. 1. 4; Pothier, Pand. Lib. 17, tit. 1, n. 42-M; 1 Liverm. on Agency, ch. 5, § 1, pp. 96-99 (ed. 1818). See 3 Chitty on Com. & Manuf. 199 ; Hicks v. Hankin, 4 Esp. 114. " 1 Pothier on Oblig. by Evans, n. 79. See also id. n. 447, 448; Ante, §§ 73, 127-129. ^ Fenn v. Harrison, 3 T. R. 767, 762 ; s. c. 4 T. R. 177 ; Ante. §§ 73, 127, 128 ; Paley on Agency, by Lloyd, 199, note (3d ed.) ; Id. 207 , 208 ; White- head V. Tuckett, 15 East, 408 ; 3 Chitty on Com. & Manuf. 198, 199 ; Pickering V. Busk, 15 East, 88, 43 ; Smith on Merc. Law, 67-60 (2d ed.) ; Id. ch. 5, § 4, pp. 107, 108 (3d ed. 1843) ; Daniel v. Adams, Ambl. 495, 498; Johnson v. Jones, 4 Barbour, Ch. (N. Y.) 869. ■* lb. ; Taley on Agency, by Lloyd, 199, and note (8d ed.) ; Ante, §§ 73, 81, 127, 128. AGENCY. 10 146 AGENCY. [CH. VI. such a case, no general authority is presumed, and he who deals with such an agent deals with him at his own peril ; for,.in such a case, the principal has not held the agent out as a general agent.i § 132. So (it has been said), if a person keeping a livery- stable, and having a horse to sell, intrusts a servant with power to sell the horse, and directs him not to warrant the horse ; and the servant, nevertheless, upon the sale, should warrant him, the master would be bound by the warranty ; because the servant was acting within the general scope of his authority, and the public cannot be supposed to be cognizant of any private con- versation between the master and the servant.^ But if the owner of a horse should send the horse to a fair by a stranger, with ex- press directions not to warrant him ; and the latter should, on the sale, contrary to his orders, warrant him, the owner would not be bound by the warranty.^ ' Ante, §§ 73, 127-129 ; Fenn v. Harrison, 3 T. R. 757, 762 ; s. c. 4 T. R. 177; 1 Liverm. on Agency, 103, 104, 111-113 (ed. 1818) ; Paley on Agency,, by Lloyd, 167, 199-205; Id. 207, 208; East India Co. ». Hensley, 1 Esp. ll:i; 3 Kent, Comm. Lect. 41, pp. 620, 621 (4th ed.) ; Pickering v. Busk, 15 Bast, 38, 43; Gibson v. Colt, 7 John. 390; Munn v. Commission Co. 15 John. 44, 54 ; Rossiter v. Rossiter, 8 Wend. 494 ; Tradesmen's Bank v. Astor, 11 Wend. 87 ; Ante, § 127, note ; § 128, note ; Lobdell v. Baker, 1 Met. 193. = Ante, § 69 ; Post, § 420, note. ' Per Ashurst, J., in Fenn v. Harrison, 3 T. R. 760, 761 ; Paley on Agency, by Lloyd, 203 (3d ed.). But see Seignior and Walmer's case, Godbolt, 360, cited in Paley on Agency, by Lloyd, p. 323, and post, § 421, note. The prin- ciple of these cases is clear ; but the whole distinction turns upon this, as to the livery-stable keeper, whether the servant had, from the nature of his employment or the business of his master, a general authority. In America, livery-stable keepers are not understood to give their servants any general authority to sell their horses. Mr. Justice Bayley, in Pickering v. Busk, 15 East, 45, has put the case in its true light, as being that of a horse-dealer. " If," said he, "the servant of a horse-dealer, with express directions not to warrant, do warrant, the master is bound ; because the servant, having a general authority to sell, is in a condition to warrant ; and the master has not notified to the world that the general authority is circumscribed." See also Helyear v. Hawke, 6 Esp. 72, 75; Coleman v. Riches, 29 Eng. Law and Eq. 326. [*A special authority from the owner to look up property mislaid or lost by a common carrier, does not imply any authority to settle for the damages resulting from the carrier's neglect. Congar v. Galena, &c.', R. R. Co. 17 Wis. 477. And an agent, with express aulhority to sell, has no implied authority to warrant where the property is of a description not usually sold with vrarranty. Smith V. Tracy, 36 N. Y. Ct. Ap. 79. But a general agent to sell goods may bind his employers by a warranty thereof. Milburn v. Belloni, 34 Barb. 607. Of two agents who receive instructions direct from the principal, and are §§ 13 1-1 33. J NATURE AND EXTENT OP AUTHORITY. 147 § 133. This distinction between cases of general agency and those of special agency, may seem,, at first view, to import a dif- ference of doctrine founded more in arbitrary rules, than in just reasoning. But, properly considered, the same principle per- vades and governs eacli of the cases. So far as the agent, whether he is a general or a special agent, is in any case held out to the public at large, or to third persons dealing witli him, as competent to contract for, and to bind the principal, the latter will be bound by the acts of the agent, notwitlistanding he may have deviated from his secret instructions and orders ; for other- wise such secret instructions and orders would operate as fraud upon the unsuspecting confidence and conduct of the other party. ^ Tims, for example, if a merchant should appoint a special agent pro hac vice, to buy or sell a cargo of cotton for him, in his dis- cretion ; and he should, by an open letter, state tliat he had so authorized the agent to buy or sell on his account, and that he . would ratify and confirm his acts in the premises ; a person, who should deal with the agent upon the faith of 'that letter, and buy or sell the cargo of cotton accordingly, would be entitled to hold the principal bound by the acts of the agent, although the latter might have violated his secret instructions as to the price of the cotton purchased or sold. The law, in such a case, would hold the authority to purchase to be general upon the face of the letter, and the agent to possess authority to bind his principal, in regard to such purchase or sale, as much as if he had been a general agent, accustomed to make purchases, in numerous cases of the same sort for the principal.^ But where the agency is not independent of each other, neither has the right to repudiate the acts of the other, unless specially directed by the principal so to do. Law v. Cross, 1 Black (U. S.), 533.] > Jetfrey v. Bigelow, 13 Wend. 518 ; Ante, §§ 73, 127-182 ; Anderson v. Coonley, 21 Wend. 279; Munn v. Commission Co. 16 John. 44, 54; Andrews V. Kneelaud, 6 Cowen, 364. ' See Shimmelpennlch v. Bayard, 1 Pet. 264 ; 1 Liverm. on Agency, ch. 5, § 2, pp. 107, 108 (ed. 1818) ; Ante, §§ 73, 127, note ; Withingtou v. Herring, 6 Bing. 442. The whole difficulty, in considering this doctrine, arises from confounding two things with each other, whioh are essentially distinct, namely, the extent of the authority given to an agent, whether it be limited or unlimited, with the nature of the agency, in which he is employed, whether it be general or special. A person may be a general agent, that is, he may be employed in the general business of his principal ; and yet he may be privately limited, in the exercise of his agency, by certain instructions given by his principal, far within the general scope of that business. Ante, § 73. On the other hand. 148 AGENCY. [CH. VI. held out by the principal, by any acts, or declarations, or implica- tions, to be general in regard to the particular act or business, it must from necessity be construed according to its real nature and extent ; and the other party must act at his own peril, and is bound to inquire into the nature and extent of the authority actually conferred.^ In such a case, there is no ground to con- tend, that the principal ought to be bound by the acts of the agent, beyond what he has apparently authorized ; because he has not misled the confidence of the other party who has dealt ■ with the agent. Each party is equally innocent ; and, in a just sense, it cannot be said, that the principal has enabled the agent to practise any deception upon the other party. Tlie duty of inquiring, then, is incumbent on such party, since the principal has never held the agent out, as having any general authority whatsoever in the premises. And, if he trusts without inquiry, he trusts to the good faitli of the agent, and not to that of the principal.^ This distinction between the effects of a general and he may be a special agent, that is, he may be employed for a particular object only ; and yet hi: may have an unlimited authority to act within the scope of his agency in that particular affair, or he may be limited therein by like instructions. Ante, §§ 17, 18, 127, note. In each case, so far as he is held out to persona dealing with him, as having general power to act in the premises, that is, as having unlimited authority to act within the scope of his agency, whether gen- eral or special, his acts bind his principal, notwithstanding ■ his private and limited instructions. In each case, if the instructions and limitations upon his authority are known to persons dealing with him, and the agent exceeds them, the principal will not be bound. Mr. Smith, in his excellent Compendium of Mercantile Law, pp. 46, 47 (2d ed.), has stated the distinction with clear- ness and brevity. " The appointment (of the agent) is his only authority. It may be general, to act in all his principal's affairs, or special, concerning some particular object. It may be limited by certain instructions, as to the conduct he is to pursue, or unlimited, leaving his conduct to his own discretion." 8. P. Smith on Merc. Law, ch. 5, § 2, p. 91 (3d ed. 1843). See also the rea- soning of Mr. Chief Justice Savage, in Jeffrey «. Bigelow, 13 Wend. 618 ; Ante, § 127, note, § 128, note, § 129, note ; Andrews v. Kneeland, 6 Cowen, 354. » Ante, § 127, note, § 128, note ; Snow v. Perry, 9 Pick. 542 ; Kossiter l). Rossiter, 8 Wend. 494 ; Denning v. Smith, 3 Johns. Ch. 344 ; Lobdell «. Baker, 1 Met. 178. " This doctrine has been already adverted to in another place, ante, § 127, note, § 128, note. But I have visntured to repeat it in the text, knowing how often it is misunderstood. The case of Withington • v. Herring, 5 Bing. 442, recognizes the true point of the distinction ; and does, as I think, fully bear out the deductions in the text, as does the doctrine of Lord Kenyon, in Fenn v. Harrison, 3 T. R. 757, and of Lord EUenborough, in Pickering v. Busk, 15 East, 38, 43, and of the supreme court of the United States, in Schimmel- §§ 133, 134.] NATURE AND EXTENT OP AUTHORITY. 149 a special agency seems (as we shall hereafter see) to be limited to cases of private agency ; and to be inapplicable to the case of public agents, who can bind the government or the public authori- ties, only to the extent of the powers actually confen-ed on them.^ § 184. We have already seen to what extent, and under what circumstances, the acts of an agent will bind his principal. It remains to consider, to what extent and under what circumstan- ces, the representations, declarations, and admissions of an agent will also bind his principal. And here it may be laid down generally, that no representations, declarations, or admissions of an agent, will bind his principal, except in cases within the scope of the authority confided to him ; subject, however, to the same distinction of which notice has been already taken, between gen- eral agents and limited or special agents.^ For, where the acts of the agent will bind the principal, there his representations, declarations, and admissions, respecting the subject-matter, will also bind him, if made at the same time,, and constituting a part of the res gestce? [In a suit against a railroad company by a passenger for the loss of his trunk, the admissions of the con- ductor, baggage master, or station master, as to the manner of the loss, made the next morning in answer to inquiries for the trunk, are competent against the company, it being part of the pennich v. Bayard, 1 Pet. 264, 290; Ante, § 81 ; Id. § 73. See also Paley'on Agency, by Lloyd, 197-199, and note ; Helyear v. Hawke, 5 Esp. 72 ; East India Co. v. Hensley, 1 Esp. 112; 1 Liverm. on Agency, 107-119 (ed. 1818) ; Andrews v. Kneeland, 6 Cowen, 354; Reitz v. Martin, 12 Ind. 308. ' See post, § 307 a; Lee v. Munroe, 7 Cranch, 366. * Ante, §§ 126-133: Fuller v. Wilson, 2 Gale & Dav. 460; Post, § 807 a; Graham v. Schmidt, 1 Sandford, Sup. Ct. (N. Y.) 74 ; New York Life & Trust Co. v. Beebee, 3 Seld. 364; Doe v. Robinson, 24 Miss. 688; Demerrit v. Meserve, 39 N. H. 621 ; Pritchett ». Sessions, 10 Rich. 298. ' Paley on Agency, by Lloyd, pp. 256-274; 3 Chitty on Com. & Manuf. 208, 209; Smith on Merc. Law, 67 (2d ed.) ; Id. pp. 123, 124 (3d ed. 1843) ; Fairlie v. Hastings, 10 Ves. 125 ; 2 Stark, on Evid. Agent, p. 64; Marshall on Ins. B. 1, ch. 10, § 1, p. 453 ; Dawson v. Atty, 7 East, 367 ; Bree v. Holbeck, Doug. 664, 657 ; American Fur Co. v. United States, 2 Pet. 368, 364 ; Fitz- herbert ». Mather, 1 T. R. 12, 15 ; 2 Pothier on Oblig. by Evans, App'x, No. 16, pp. 287, 288 ; North River Bank v. Aymar, 8 Hill, 262 ; Sandford v. Handy, 23 Wend. 260 ; Lobdell v. Baker, 1 Met. 193 ; Thallhimer v. Brinckerhoff, 4 Wend. 394; Lee v. Munroe, 7 Cranch 366; Stewartson v. Watts, 8 Watts, 392; Carpenter «. American Ins. Co. 1 Story, 57; Randall «. Ches. & Del. Canal Co. 1 Harring. (Del.) 234; Post, § 387 a; Bank of United States v. Davis, 2 Hill, 461, 461, 464. 150 AGENCY. [CH. VI. duties of such agents to deliver tlie baggage of passengers, and to account for tlie same, if missing and inquiry is made within a reasonable time.^] § 135. Indeed, for most practical purposes, a party dealing ■with an agent, who is acting within the scope of his authority and employment, is to be considered as dealing with the principal himself. If it is a case of contract, it is the contract of the principal. If the agent, at the time of the contract, makes any representation, declaration, or admission, touching the matter of the contract, it is treated as the representation, declaration, or admission of the principal himself.^ But the qualifications above stated are also most important to be attended to. The represen- tation, declaration, or admission of the agent, does not bind the principal, if it is not made at the very time of the contract, but upon another occasion ; or if it does not concern the subject- matter of the contract, but some other matter, in no degree be- longing to the res gestce.^ [Thus the declarations of an agent while performing a contract of labor and service for his principal, as a son for his father, are not admissible to prove the terms of his contract.* So the declarations of a driver of a car which has run against and injured a person, made after the accident had occurred and the car had been stopped, but before the driver ' [Morse v. Connecticut River Railroad, 6 Gray, 450. See Robinson v. Fitchburg Railroad, 7 Gray, 92, where it was held that, in an action against a railroad company for damages by a collision through the negligence of the engineer, his statements as to the accident, made a few days afterwards, were not competent against the company.] ^ 2 Pothier on Oblig. by Evans, App'x, No. 16, pp. 287, 288 ; 3 Chitty on Com. &Manuf. 207, 208; Thallhimer ». Brinckerhoflf, 4 Wend. 394; Hubbard V. Elmer, 7 Wend. 446 ; Ante, §§ 67, 68. = Peto V. Hague, 5 Esp. 135 ; Helyear v. Hawke, 6 Esp. 72, 74 ; Alexander V. Gibson, 2 Campb. 656 ; Paley on Agency, by Lloyd, 256, 257 ; Fairlie v. Hastings, lOVes. 125; Dawson v. Atty, 7 East, 367; 2 Stark, on EviA. Agent, p. 60; 2 Liverm. on Agency, 238, 239 (ed. 1818) ; 3 Chitty'on Com. & Manuf. 208, 209; 2 Pothier on Oblig. by Evans, App'x, No. 16, pp. 287, 288; Thall- himer v. Brinckerhoff, 4 Wend. 395; Stewartson v. Watts, 8 Watts, 392; Hubbard v. Elmer, 7 Wend. 446. " Corbin v. Adams, 6 Cush. 93. See also Royall v. Sprinkle, 1 Jones (N. C), 605; Byers v. Fowler, 14 Ark. 87. [The declarations of a.father as to inju- ries to his minor son are not admissible in an action subsequently brought by the son, in his father's name, as jyi-ocliien ami, without proof that the father was agent of the son at the time when the statements were made, which agency must be proved by other evidence than the mere declarations of the father him- self. Harvey v. Donelly, 22 Boston Law Rep. 317.] §§ 134-136.] NAT0RE AND EXTENT OP AUTHORITY. 151 had left it, that he could not stop the car because the brakes were out of order, are not competent against the company.^] § 136. The reasoning upon which this distinction proceeds has been very well explained by a late learned Judge.^ " As a general proposition" (said he), "what one man says, not upon oath, cannot be evidence against another man. The exception must arise out of some peculiarity of situation, coupled with the declarations made by one. An agent may undoubtedly, within the scope of his authority, bind his principal by his agreement; and in many cases by Ins acts. "What the agent has said may be what constitutes the agreement of the principal ; or the repre- sentations or statements may be the foundation of, or the induce- ment to, the agreement. Therefore, if writing is not necessary by law, evidence must be admitted, to prove the agent did make that statement or representation. So, with regard to acts done, the words, with which those acts are accompanied, frequently tend to determine their quality. The party, therefore, to be bound by the act, must be affected by the words. But, except in one or the other of those ways, I do not know, how, what is said by an agent, can be evidence against his principal. The mere assertion of a fact cannot amount to proof of it; though it may have some relation to the business, in which the person making that assertion was employed as agent. For instance, if it was a mate- rial fact, that there was the bond of the defendant in the hands of [the principal] , that fact would not be proved by the assertion that [the agent], supposing liim an agent, had said there was; for that is no fact, that is, no part of any agreement, which [the agent] is making, or of any statement he is making, as induce- ment to an agreement. It is mere narration ; commiinication to the witness in the course of conversation ; and, therefore, could not be evidence of the existence . of the fact. The admission of an agent cannot be assimilated to the admission of the principal. A party is bound by his own admission ; and is not permitted to contradict it. But it is impossible to say [that], a man is pre- cluded from questioning or contradicting any thing any person has asserted as to him, as to his conduct or his agreement, merely because that person has been an agent of his. If any fact, mate- rial to the interest of either party, rests in the knowledge of an ' Luby o. Hudson River Railroad, 3 Smith (N. Y.), 131. ' Sir William Grant. 152 AGENCY. [CH. VI. agent, it is to be proved by his testimony, not by liis mere asser- tion." 1 [Thus the fact of agency, or the extent of the authority, cannot be proved by the declarations of the alleged agent, although accompanied by his acts as agent.^] § 137. Thus, for example, what an agent has said, or repre- sented, at the time of the sale of a horse, which sale was author- ized by his master, whether it be a representation or a warranty of soundness, or of any other quality, will be binding upon the master. But, what he has said upon the subject at another time, or upon another occasion, will not be binding upon him ; for it is no part of the res gestce; and did not attach, as an incident or inducement to the sale.^ For such purposes the agent is no longer acting as agent of the master ; and his declarations are not to be used as proofs against the master ; but the facts con- tained in those declarations must be proved aliunde.^ Indeed, in » Fairlie v. Hastings, 10 Ves. 126, 127 ; Garth v. Howard, 8 Bing. 461. The satne doctrine is fully expounded by Mr. Justice Kennedy, in delivering the opinion of the court, in Hannay v. Stewart, 6 Watts, 489. "In order to determine" (says he), "whether the declarations or representations of an agent are admissible, as evidence against his principal, it may be proper, first, to state the grounds upon which they have been deemed to be so. The state- ments of an agent, generally, though made of the business of his principal, are not to be taken as equivalent to the admissions of the principal ; for then the latter would be bound by them, whether true or false, which would render the situation of every principal truly perilous. Every man has a right to make such representations of what he has done, as he pleases, and to bind himself to abide by them, whether true or otherwise ; and they, of course, may be given in evidence against him afterwards, when relevant to the issue trying ; not, how- ever, because the facts therein stated are true ; but because he has the right to pledge himself in the same manner as if they were true ; and if true, justice natr urally requires that he should be bound by them ; or if not, it is no more than the infliction of a just penalty for his disregard of truth. But it would not be reasonable to hold him responsible, upon the same principle, for the declarations of his agent ; nor upon any principle, except that of truth, and the protection of those against loss or injury, that might otherwise arise, from their haying con- fided in the representations of the agent, made by him at the time of entering into the agreement, or of transacting the business, under the authority of his principal." ' Brigham v. Peters, 1 Gray, 139. = Helyear v. Hawke, 6 Esp. 72, 73; Lobdell v. Baker, 1 Met. 193; North River Bank v. Aymar, 3 Hill, 262 ; Hubbard v. Elmer, 7 Wend. 446. * 2 Starkie, Evid. Agent, 60, 61 ; Cooley v. Norton, 4 Gush. 93; Langhome V. AUnutt, 4 Taunt. 511 ; Betham v. Benson, 1 Gow, 45 ; Fairlie v. Hastings, 10 Ves. 123 ; Paley on Agency, by Lloyd, 257, 268, 269 ; Masters v. Abraham, 1 Esp. 376 ; Hannay v. Stewart, 6 Watts, 489 ; Smith on Merc. Law, 66, 67 §§ 136, 137.] NATURE AND EXTENT OP AUTHORITY. 153 such cases, the agent himself may be properly called as a witness ; and, hence, it has been said, that his declarations are not the best evidence of the faots.^ (2d ed.) ; Id. ch. 5, § 4, p. 123 (3d ed. 1843) ; Hubbard v. Elmer, 7 Wend. 446. Questions of a different nature may arise; as, for example, whether the verbal declarations of an auctioneer, at a sale, shall be permitted to countervail or vary the printed particulars of the sale ; and also, whether parol declarations of an agent, during the negotiation of a contract, afterwards reduced to writ- ing, shall be admitted to control or vary that writing. But these are questions which more properly belong to the general law of evidence, than to the doc- trines of agency ; since they may equally arise in the case of the principal him- self, if he is the immediate party to the transaction. As to the case of the auctioneer, see Gunnis v. Erhart, 1 H. Bl. 289 : Powell v. Edmunds, 12 East, 6 ; Howard v. Braithwaite, 1 Ves. & B. 210 ; Jones v. Edney, 3 Campb. 285 ; Ogilvie V. Foljambe, 3 Meriv. 53. As to the other case, see Pickering v. Dow- son, 4 Taunt. 779 ; Kain v. Old, 2 B. & Cressw. 634. ' This suggestion does not show the true foundation of the rule, which ad- mits or excludes the declarations and admissions of the agent ; for, in all such cases, the agent may be examined under oath. But, notwithstanding that, his declarations and admissions are clearly evidence, when a part of the res gestce. In Garth v. Howard, 8 Bing. 451, Lord Chief Justice Tindal said, "If the transaction, out of which this suit arises, had been one in the ordinary trade or business of the defendant, as a pawnbroker, in which trade the shopman was agent, or servant to the defendant, a declaration of such agent, that his master had received the goods, might probably have been evidence against the master, as it might be held within the scope of such agent's authority to give an answer to such an inquiry, made by any person interested in the goods deposited with the pawnbroker. In that case, the rule laid down by the master of the rolls, in the case of Fairlie v. Hastings, which may be regarded as the leading case on this head of evidence, directly applies. But the transaction with Fleming appears to us not a transaction in his business as a pawnbroker, but was a loan by him, as by any other lender of money, at five per cent. And there is no evidence to show the agency of the shopman in private transactions, uncon- nected with the business of the shop. I doubted much, at the time, whether it could be received, and intimated such doubt, by reserving the point ; and now, upon consideration with the court, am satisfied, that it is not admissible. It is dangerous to open the door to declarations of agents, beyond what the cases have already done. The declaration itself is evidence against the principal, not given upon oath ; it is made in his absence, when he has no opportunity to set it aside, if incorrectly made, by any observation, or any question put to the agent ; and it is brought before the court and jury, frequently, after a long interval of time. It is liable, therefore, to suspicion originally, from careless- ness or misapprehension in the original hearer ; and again, to further suspicion, from the faithlessness of memory in the reporter, and the facility with which he may give an untrue account. Evidence, therefore, of such a- nature, ought always to be kept within the strictest limits to which the cases have confined it ; and as that which was admitted in this case, appears to us to exceed those lim- its, we think there ought to be a new trial." 154 AGENCY. [CH. VI. § 138. Upon this ground it is, that, where an agent is author- ized to pay money for work done for his principal, or where he is referred to, to settle and adjust any account or business, his admissions of the existence of tlie debt, and of its validity, will be sufficient to take the case out of the statute of limitations ; for it is connected with, and a part of, the very business of his Etgency.^ So, an acknowledgment by an agent authorized to buy goods for his principal, that he has received the goods, will, if made while he is transacting the business, but not otherwise, be good evi- dence of the delivery of them to him, as against his principal.^ § 139. And not only will the positive acts, representations, declarations, and admissions of an agent, when part of the res gestce, be binding upon the principal ; but even his fraudulent or negligent statements, misrepresentations, and concealments will, in many cases, have the same effect.^ Thus, for example, if an agent authorized to procure insurance, should conceal from the underwriters a material fact within his own knowledge, it will be equally as potent to invalidate the insurance, as if it were con- cealed by the principal himself.* [But it has been held in Eng- ' Burt V. Palmer, 6 Esp. 146; Paley on Agency, by Lloyd, 267; Pale- thorp V. Furnish, 2 Esp. 511, n. ; Anderson v. Sanderson, 2 Stark. 204; s. c. Holt, 591. " Biggs V. Lawrence, 3 T. E. 454. But see Bauerman v. Radenius, 7 T. E. 663, and Bethom v. Benson, 1 Gow, 45 ; Drake v. Marryatt, 1 B. & Cressw. 473 ; Clifford v. Burton, 1 Bing. 199 ; Gregory v. Parker, 1 Campb. 394; Paley on Agency, by Lloyd, 270, 272, 273 ; 2 Pothier on Oblig. by Evans, App'x, No. 16, pp. 287, 288 ; Bingham v. Cabot, 3 Ball. 19 ; Garth v. Howard, 8 Bing. 451 ; New England Mar. Ins. Co. v. De Wolf, 8 Pick. 66 ; Van Eenssellaer v. Morris, 1 Paige, 13. ' Ante, §§ 126, 127; Bennett v. Judson, 7 Smith (N. Y.), 238. " Marshall on Ins. B. 1, ch. 11, § 1, p. 466 ; Fillis v. Brutton, Marsh, on Ins. B. 1, ch. 11, § 1, p. 467; Stewart v. Dunlop, 4 Bro. Pari. Cas. 483; s.c. Marsh, on Ins. B. 1, ch. 11, § 1, p. 468 ; Willes v. Glover, 4 Bos. & PuU. 14; Shirley v. Wilkinson, Doug. 306, a. ; Roberts «. Fonnereau, Park on Ins. ch. 10, p. 285 (7th ed.) ; Seaman v. Fonnereau, 2 Str. 1183; Rugglesu. Gen. Int. Ins. Co. 4 Mason, 74 ; s. c. 12 Wheat. 408 ; 3 Chitty on Com. & Manuf. 208, 209 ; Paley on Agency, by Lloyd, pp. 266-262 ; Carpenter v. Amer. Ins. Co. 1 Story, 57 ; Bank of United States v. Davis, 2 Hill, 461, 461, 462. [* In the case of Proudfoot v. Montefiore, Law Rep. 2 Q. B. 511, the case of Ruggles v. Gen. Int. Ins. Co. 4 Mason, 74, s. c. 12 Wheat. 408, is denied to be law, and the earlier cases which that case overruled are followed. The opinion of Lord Chief Justice Cockburn, in the case first cited, seems to go upon the doctrine of Lord Denman, in Fuller v. Wilson, 3 Adolph. & Ellis, n. s. 58, that the agent and principal, where contracts are negotiated partly by one and partly by §§ 138, 139.] NATURE AND EXTENT OP AUTHORITY. 155 land, that where A., a principal, knowing a material objection to the letting of a tenement, as that an adjoining house was a house of ill-fame, employs B., an agent, to let the property, who is ignorant of such objection, and B. innocently malces a misrep- resentation to 0. concerning such estate, and thereby induces C. to hire the tenement, the misrepresentation of the agent will not be held to support an allegation of fraud and covin in the prin- cipal, since he had made no misrepresentation, not even to his agent, and his agent had made no misrepresentation, since he had no knowledge of any such objection.^ Neither was there the other, are to be regarded as one party, and completely identified, for the purpose of determining whether a fraudulent advantage had been obtained by such contract.] ' Cornfootu. Fowke, 6 Mees. &Wels. 358. [This case has sometimes been doubted, and sometimes sharply criticised ; see Fitzsimraons v. Joslin, 21 Vt. 129-141 ; but when understood in its true light seems not open to the objections made. The jury at the trial found a verdict for the defendant, which was set aside by the Court of Exchequer solely upon the ground that the allegation of fraud in the plaintiff, upon which the defence proceeded, was not proved by the evidence. But if there had been no allegation of fraud in the case, and the lessee had relied, not upon positive fraud in the plaintiff, but upon a misrepre- sentation merely, it was not denied by the court, but that the contract might have been avoided for that cau'se, and the principal would have been bound by the misrepresentation of his agent. See National Exchange Co. v. Drew, 32 Eng. Law and Eq. 1, 14, 15. [* The foregoing is Lord Cranworth's exposition and apology for Cornfoot v. Fowke, in the House of Lords, the best which could be offered, doubtless, and the least to be expected from the author of the deci- sion, or one of its authors, as Lord Cranworth was, while Baron Rolfe of the Court of Exchequer. We have no desire to enter into any vindication of our early strictures of the case, in Fitzsimmons v. Joslin, supra. We thought them just then, and we think so still. And we confess to some incredulity in regard to the effect of Lord Cranworth's apology for the case. The plea alleged that the contract was obtained by " fraud, covin, and misrepresentation of the plain- tiff and others in eoUusion with him." The facts of the case were, that the defendant was sued upon a contract of lease of a dwelling-house in London, next adjoining a brothel of the worst kind, and this well known to the plaintiff, but withheld from his agent, who, on the defendant's inquiry, if there "was any thing objectionable about the house?" replied, " Nothing whatever." Upon which assurance the defendant entered into the contract, and, upon learning the character of the house, declined to execute the lease. It would seem there could possibly be but one opinion in regard to the de- fence being made out, and in the very terms of the plea. By adopting the contract made by his agent, the plaintiff made himself a party to his misrepre- sentation, and it was none the less a fraud in the plaintiff, because the agent made the repres.entation in good faith. His act was the act of the plaintiff 156 AGENCY. [CH. VI. any proof that the principal had purposely employed an innocent agent that he might ignorantly make such misrepresentation. But this case may not be inconsistent with the sound and per- fectly well settled principle, that if a principal seeks to enforce a contract made by his agent, he is as much bound by any material misrepresentation made therein by the agent, as if made by him- self. Thus, if A. obtains credit upon the recommendation of B., ■which is so far a fraudulent misrepresentation, that, if made by A. himself, would avoid the sale, it will have the same effect, if its wlien be took the benefit of it, and the character of the act depended, not upon' the motive with which it was made by the agent, but upon the motive of the plaintiflp in insisting upon the performance of a contract made in faith of the misrepresentation. The plaintiff, by assuming to enforce a contract based upon the misrepresentation of his agent, made that misrepresentation his own pre- cisely to the same extent and with the same fraudulent purpose as if he had made it himself originally. If that is not true in law, as it certainly is in mor- als, then the law has become a mere sham and subterfuge. He who claims to enforce a contract based upon fraud, is himself a participator in such fraud, whether he was himself the originator of it or not. But we desire to add nothing more in confirmation of the above views, than the comments of Lord St. Leonards, in answer to Lord Cranworth's apology for the case : " I say, in such a case as that, I should be very much shocked at the law of England if I could bring myself to believe that it would not reach the case of a person so availing himself of a misrepresentation of his own agent, who might be ignorant of the fact, although the principal himself knew it and employed the agent in order to avoid making a direct representation to the con- trary. I should hope that the law of England would reach a case of that sort. I should feel no hesitation, if I had myself to decide that case, in saying, that, although the misrepresentation was not fraudulent, the agent not knowing that it was false, yet that as in fact it was false, and false to the knowledge of the principal, although the agent did not know it, it ought to bind the principal. When, upon a matter so material to the value of the property, he left it to his agent to make the representation without informing him of so important a fact within his own knowledge, the agent making a false representation of that fact, it would bind the principal, and thus impeach the validity of the con- tract." The case of Proudfoot ». Montefiore, supra, was where, the plaintiff procured insurance upon his ship, which had been lost a few days before the insurance, and in time for his agent at Smyrna to have communicated the fact by telegraph to him, but which he purposely omitted to do, so that his principal might be in condition to insure the vessel. The court held that the insurance was invalid, on the ground that the insurers were entitled to receive all information within the knowledge of the insured or of his agents, and which could and should have been communicated to the principal before the insurance in the ordinary course of business.] § 139.J NATURE AND EXTENT OF AUTHOEITT. 157 falsity was kiiowtfby A., and he claims to hold the goods pur- chased by means of this fraudulent representation.^ So where the directors of a joint-stock company, by fraudulent reports of the standing and conditions of the company, induced third per- sons to contract with the company, and the latter was benefited by the transaction, it was held that the company would be bound by the misrepresentation. ^ So, where an auctioneer pretended to have received bids, not actually made, and thus ran up the price of the property from $20,000, the last real bid, to 140,000, at [} Fitzsimmons v. Joslin, 21 Vt. 129. "In this case tlie creditors of a trader, who was insolvent, but who wished to purchase goods, being unwilling to extend to him further credit, told him, that they did not like to sell to him, if he could buy elsewhere, and gave him the name of another merchant, and authorized him to refer to them. He attempted to purchase of this merchant, and, being asked for references, gave the names of his original creditors, and was told to call again in half an hour. He did call again in the course of the day, and the purchase was effected. No inquiry was made by the vendor of the purchaser, as to his circumstances, nor did he give any assurances whatever relative thereto. On the same day, and after the purchase was effected, the purchaser met one of his original creditors, who told him that he had been called upon by, the vendor, and that ' he had given as good an account of him as he could and not make himself liable,' — ' that he had told him, that he (the pur- chaser) was a clever fellow, and was doing a thriving business in Vergennes, and that he (the creditor) had sold him goods, and he paid well, and he was ready to sell him more. At the time of this transaction the purchaser was in arrears to these same original creditors, to the amount of several hundred dollars each, and their demands had actually been placed in the hands of their attorney at Vergennes, where the purchaser resided, for collection ; and, as soon as they learned, that this last purchase had been effected, they sent instructions to the attorney to attach the goods, as the property of the purchaser, upon their ar- rival at the place of destination. This was done ; and, as soon as the vendor was informed of the insolvency of the purchaser, which was within a Week after the attachment, he demanded the goods of the sheriff, offering to pay freight ; but the sheriff refused to surrender them. The attachment was made upon suits in favor of the several original creditors ; and it did not appear that either of these creditors, except the one above mentioned, had made any representa- tion whatever in relation to the matter. And it was held, that the purchaser was responsible for the representations made by his creditor, and that the ven- dor, having been cheated and deceived by means for which the purchaser was legally responsible, might sustain trover against the sheriff to recover the value of the goods so attached."] ^ National Exchange Co. v. Drew, 32 Eng. Law. and Eq. 1. See also Burnes v. Pennell, 2 House of Lords Cases, 497 ; Ranger v. Great West- ern Railway, 6 Id. 72 ; 27 Eng. Law and Eq. 35 ; Wontner v. Shairp, 4 Railw. Cas. 642. 158 AGENCY. [CH. VI. which it was struck off to the plaintiff, who had no knowledge of the fraud, it was held that the owners of the property were bound by this fraud, although they did not direct it, but still claimed to hold the whole |40,000 paid.i] The reason seems to be, that, where one of two innocent persons must suflFer, he ought to suffer, who has misled the other into a false confidence in his agent, by clothing him with apparent authority to act and speak in the premises, and who otherwise might receive an injury, for which he might have no adequate redress. § 139 a. The question has been made in cases of joint agency (not of joint and several agency), how far the acts, or admis- sions, or representations, or concealment, or negligences of one agent in the common concern, intrusted to them, unknown to the others, will affect their principal. It would seem clear upon principle, that, where the authority given is joint, neither of the agents can act, so as to bind the principal by his act, without the co-operation of all the others in the same act.^ If, then, the act of one joint agent alone will not bind the principal, upon what ground can his admissions, or representations, or concealments, or negligences have a more conclusive and comprehensive effect ? Yet it seems sometimes to have been thought, that, in cases of mere joint agency, the act of one of the several joint agents would bind the principal ; and certainly, if that be correct, the conclusion seems irresistible, that the admissions, representations, concealments, and negligences of one of several joint agents ought equally to bind the principal.^ § 140. Upon a similar ground, notice of facts to an agent is constructive notice thereof to the principal himself, where it arises from, or is at the time connected with, the subject-matter of his agency ; for, upon general principles of public policy, it is presumed that the agent has communicated such facts to the principal ; and if he has not, still the principal, having intrusted the agent with the particular business, the other party has a right ' Veazie v. Williams, 8 How. 124. ^ Ante, §§ 4:2-44. 2 See Bank of the United States v. Davis, 2 Hill, 461, 463, 464, where the doctrine is maintained, that in cases of joint agency, the principal is responsible for the conduct of each and all of his agents, while acting within the limits of the power conferred on them, that is, on all of them jointly. It deserves con- sideration, whether this doctrine is maintainable except in cases where the power is joint and several. Post, §§ 140, 140 a, 140 6, and note. §§ 139-140 a.] NATURE AND EXTENT OP AUTHORITY. 159 to deem his acts and knowledge obligatory upon the principal ; otherwise, the neglect of the agent, whether designed or unde- signed, might operate most injuriously to the riglits and interests of such party .1 But, unless notice of the facts come to the agent, while he is concerned for the principal, and in the course of the very transaction, or so near before it tliat the agent must be pre- sumed to recollect it, it is not notice thereof to the principal, for otherwise the agent might have forgotten it ; and then the prin- cipal would be affected by liis want of memory, at the time of un- dertaking tlie agency.^ Notice, therefore, to tlie agent, before the agency is begun or after it has terminated, will not, ordinarily, affect the principal.^ § 140 a. But the more recent, and now regarded the more sal- utary, rule of law, especially in England, in regard to knowledge of a fact by the agent affecting the interest of the principal on whose behalf he acts, is thus laid down in the Bxcliequer Cham- ber, by Pollard, C. B., in the case of Dupee v. Norwood.* " In a commex'cial transaction, if the purchaser's agent on behalf of tlie principal buy goods from a factor, and such agent at the time has notice, no matter by what means, that tlie goods are not the goods of tlie factor, the knowledge of the agent must be held to be the knowledge of the principal." The same rule was extend- ed in a recent case in Yermont to the knowledge of a trust ac- quired by the agent before his employment to levy upon the 1 Paley on Agency, by Lloyd, pp. 262-266 ; Fitzherbert u. Mather, 1 T. R. 12, 16 ; Le Neve v. Le Keve, 1 Ves. pp. 6i-69 ; Hiem v. Mill, 13 Ves. 114 Id. 120 ; 3 Chitty on Com. & Manuf. 208, 209 ; 1 Story on Eq. Jurisp. § 408 Astor V. Wells, 4 Wheat. 466 ; 2 Liverm. on Agency, pp. 235-238 (ed. 1818) Cowen ». Simpson, 1 Esp. 290 ; Toulmin u. Steere, 3 Meriv. 210 ; Smith on Merc. Law, 67 (2d ed.) ; Id. ch. 6, § 4, p. 123 (3d ed. 1843) ; Berkeley v. Watling, 7 Adolph. & Ellis, 29 ; Eulton Bank «. New York and Sharon Canal Co. 4 Paige, 127, 136, 137 ; Bank of United States v. Davis, 2 Hill, 451, 461, 464 ; Hovey v. Blanchard, 13 N. H. 146 ; Sutton u. Dillaye, 3 Barbour, Sup. Ct. (N. Y.) 529 ; Ross v. Houston, 26 Miss. 591. = Hiem u. Mill, 13 Ves. 120 ; 1 Story on Eq. Jurisp. § 408 ; 2 Liverm. on Agency, 235, 237 (ed. 1818) ; Hargreaves v. Rothwell, 1 Keen, 169 ; Bracken u. Miller, 4 Watts & Serg. 102 ; Hood v. Fahnestock, 8 Watts, 489, 490 ; Law- rence x>. Tucker, 7 Greenl. 195 ; Boyd u. Vanderkemp, 1 Barbour, Ch. 287 ; Fuller V. Bennett, 2 Hare, 402, where the subject is fully discussed. 3 Ibid. * 10 Jur. N. s. 851 ; s. c. 17 C. B. n. s. 466 ; s. c. in C. B. 14 C. B. n. s. 574. 160 AGENCY. [CF. VI. goods as the property of the trustee, and the court held that tlie principal was affected by the knowledge of the agent in regard to the true state of the title.^ But both these cases go upon the ground, that the knowledge of the agent in order to affect his principal must have been in the mind of the agent, at the time of the transaction on behalf of his principal, else he would be liable to be affected by a notice he has no means of coming, at, and might thus be placed in the very embarrassing condition of never being able to hear from his agent precisely what facts he would be regarded as having knowledge of. With this qualificar tion, the rule above stated is certainly a very salutary one.^ § 140 b. We have already had occasion to consider how far, in cases of joint agency, the act, admission, representation, or concealment of one, without the knowledge or assent of the others, would or ought to bind the principal.^ Probably, the same rule would be held applicable to notice in cases of joint agency. In cases of corporations, who act through the instru- mentality of agents, the same rule, as to notice, would seem properly to apply to their regular agents, as applies to the agents of a mere private person. But a nice question may arise, in cases where corporations act through the instrumentality of a board of directors or trustees, or other official agents, how far notice to one of the directors, or trustees, or other official agents, is to be deemed notice to all, and binding upon the corporation. Thus, for example, suppose, in the case of a bank, one of the directors should have notice that a note offered for discount was invalid or void, from extrinsic facts, unknown to the other direc- tors, and he should conceal those facts, and the note should be discounted by the board ; the question would arise, whether no- tice to one director, and unknown to the others, was notice to, and obligatory upon, the corporation, so as to let in the proof as a defence against a suit on the note for non-payment. Upon this question, it is not easy to affirm what is the prevailing rule, since the authorities are not entirely agreed. On the one hand, it has been thought reasonable, that nothing but an official notice of the facts to the board, or to the majority of the board, acting ' Hart V. The F. & M. Bank, 33 Vt. 252. See also Blumenthal v. Brain- erd, 88 Vt. 410. " Ante, §§ 42, 139 a. §§ 140ffl-140c.] NATURE AND EXTENT OF AUTHORITY. 161 as such in the particular discount, ought to bind the bank.^ On the other hand, it has been insisted, that notice of the facts to any one of the directors, who acts in the discount (btit not unless he acts), is sufficient to bind the corporation, although the other directors at the board had no knowledge thereof.^ [So, in anoth- er case, it was held, that notice to the president of a banking cor- poration, that stock, standing upon the books of the bank in the name of one person, is held by him in trust for another, should be considered as notice to the corporation. And it is not necessary, in order to affect the corporation with notice of such trust, that there should have been a full communication of all the circ\imstances connected with it.^] § 140 c. If we examine the subject upon general principles, and witli reference to practical convenience in the administration of banks, it might seem, that, to bind the bank, the notice ought to be given to the proper agents of the bank, legally intrusted with the particular business, to whicli the notice relates. If the business be legally confided to the cashier, notice to him ought to bind the bank. If it is to be done by a board of directors, as, for example, in the discounting of notes, they ought to have official notice of any illegality or informality affecting the notes. And notice to one director only, unknown to the others of the board, ought not to bind the bank.* But in one of the authorities, a distinction is taken between notice given to a director privately, and notice given to him ofiBcially, for the purpose of being com- municated to the board, although it should not be communicated ' See Louisiana State Bank v. Senecal, 13 La. 526, 627; Housatonic and Lee Bank v. Martin, 1 Met. 294, 308 ; Commercial Bank v. Cunningham, 24 Pick. 274, 276. On this occasion, the court said, "The knowledge of Parker, although he was one of the directors of the Commercial Bank, is no proof of notice to that corporation, especially as he was a party to all these contracts whose interest might be opposed to that of the corporation. To admit the stockholders or directors of a bank to subject it to liability, or to affect its inter- ests, unless they have authority so to do expressly by its charter, would be attended with the most dangerous consequences, and is certainly not sanctioned by any authority. Hallowell & Augusta Bank v. Hamlin, 14 Mass. 180." ^ Bank of United States v. Davis, 2 Hill, 461 ; North Eiver Bank v. Aymar 3 Hill, 262, 274, 275. » Porter v. Bank of Rutland, 19 Vt. 410. * Louisiana State Bank v. Senecal, 13 La. 625, 527. See also National Bank v. Norton, 1 Hill, 672, 578 ; Bank of United States v. Davis, 2 Hill, 451 463 ; Fulton Bank v. New York & Sharon Canal Co. 4 Paige, 127, 136, 137. " AGENCY. 11 162 AGENCY. [CH. VI. to the board. In the latter case it is said, that tlie bank is bound by the notice to the one director only, although it may not be in the former .1 In another case a distinction is taken between no- tice to a director, who acts at the board in discounting a note, of whose illegality or infirmity he alone has notice, and not the board, and notice to a director, who does not act at the time of the discount, at the board. In the former case, it is said, that the bank is bound ; in the latter, it is not.^ Perhaps it will be found, » National Bank v. Norton, 1 Hill, 675, 578 ; Fulton Bank v. New York & Sharon Canal Co. i Paige, 127, 129. " Bank of United States v. Davis, 2 Hill, 451, 464 ; North River Bank v. Aymar, 3 Hill, 262, 274, 275. In the case of Bank of United States ». Davis, 2 Hill, 451, 463, Mr. Chief Justice Nelson, in delivering the opinion of the court, said, " I agree, that notice to a director, or knowledge derived by him, vfhile not engaged officially in the business of the bank, cannot and should not operate to the prejudice of the latter. This is clear, from the ground and reason upon which the doctrine of notice to the principal, through the agent, rests. The principal is chargeable with this knowledge for the reason that the agent is substituted in his place, and represents him in the particular transaction ; and as this relation, strictly speaking, exists Only while the agent is acting in the business thus delegated to him, it is proper to limit it to such occasions. But in this case, as has been already observed, Williams was a member of the board, participating at the time in the discounting of bills and notes as one of the directors of the bank ; and as such procured the discount of the paper in ques- tion, avowedly for his own benefit, but knowing at the time that it belonged to Davis, one of the defendants. So far, therefore, as he may be regarded as representing the bank in transacting its business at the board, the institution must be considered as having knowledge of the fraudulent perversion of the bills from the object for which they were drawn. To this extent, his acts and knowledge concerning the object and ownership of the paper, are to be deemed the acts and knowledge of the institution itself. It is said, however, that Williams was but one of the five empowered by the bank to represent it in this transaction ; that the bank is . not therefore to be held responsible for his indi- vidual fraud at the time, nor can it be chargeable with his knowledge of the facts, under which the paper in question was discounted ; and that such knowl- edge is chargeable only when the agent has full power to act for the principal in the particular case. It is not to be denied, that if a principal employs several agents to transact jointly a particular piece of business, he is equally responsible for the conduct of each and all of them while acting within the limit and scope of their power, as completely so as he would be for the conduct of a single agent iipon whom the whole authority has been conferred. He cannot shift or avoid this responsibility by the multiplication of his agents. It is also clear, that the corresponding responsibility of each of the several joint agents to the principal for the faithful discharge of their duties, is a's complete and perfect as in the case of a single agency ; and any prejudice to the principal, arising from § 140 c.] NATUEE AND EXTENT OF AUTHORITY. 163 that, if either of these distinctions is to prevail, it will sap the foundations, on which the security of all banking and other mon- eyed corporations, if not of all corporations, have been hitlierto fraud, misconduct, or negligence of either of them, would afford ground for redress from the party guilty of the wrong. These are general conceded principles, for which no authority need be cited. One of the grounds for charg- ing the principal with the knowledge possessed by the agent is, because the latter is bound to communicate the fact to the former, and is liable for any prejudice that may arise from a neglect in this respect ; and hence the law pre- sumes that the principal has had actual notice. Now the duty of any one of the joint agents is as obligatory on him in this respect, as if he had possessed the sole power in the matter of the agency, and any prejudice resulting from the neglect would afford a like redress. Again, so completely is the principal represented by the agent while acting within the scope of his authority and employment, that the third party, for most purposes, is considered as dealing with the principal himself. In the case of a contract, it is deemed the contract of the principal, and if the agent at the time of the contract make any repre? sentation or declaration touching the subject-matter, it is the representation and declaration of the principal. Sandford v. Handy, 23 Wend. 260, and cases there cited. Upon these views it seems to me consistently and reasonably to follow, that in case of a joint agency by several persons, — as of the directors of a bank, — notice to any one, or the acts of any one, while engaged in the business of the principal, is notice to the bank itself. The corporation is acting and speaking through the several directors, who jointly represent it in the par- ticular transaction. In judgment of law it is present, conducting the business of the institution itself; the acts of the several directors are the acts of the bank; their knowledge the knowledge of the bank, and notice to them, notice to the bank.'' In North River Bank ». Aymar, 3 Hill, 262, 274, the Supreme Court of New York recognized the authority of this case. In Fulton Bank v. New York and Sharon Canal Co. 4 Paige, 127, 136, 137, Mr. Chancellor Wal- worth said, " There can be no actual notice to a corporation aggregate, except through its agents or oiEcers. The directors or trustees, when assembled as a board, are the general agents, upon whom a notice may be served ; and which will be binding upon their successors and the corporation. But notice to an individual director, who has no duty to perform in relation to such notice, can- not be considered a notice to the corporation. The notice, which Brown and Cheeseborough had of what took place at the house of the former, on the even- ing of the 7th of September, was not of itself legal notice to the bank that the fund was placed under the control of the finance committee ; and that Brown, although he left his signature, and apparently had the control of the money the next morning, was not in fact authorized to draw it from the bank. But if Cheeseborough had been authorized by the bank, as their president and agent, to agree to receive the money on deposit, the agreement made with him as such agent, would have been notice to the corporation ; although he neglected to communicate the facts to the other officers of the bank, or to the board of directors. It is well settled, that notice to an agent of a party, whose duty it 164 AGENCY. [CH. VI. supposed to rest ; to wit, that no act, or representation, or knowl- edge of any agent thereof, unless officially done, made, or ac- quired, is to be deemed the act, representation, or knowledge of the corporation itself. If it is once promulgated, that the mere private knowledge of any director of a bank, or of any member of an official board, is binding upon the bank, although unknown to the other members of the board, whenever he acts officially at the board, or whenever it is his duty to communicate that knowl- edge to the board, it will be found difficult to circumscribe the doctrine practically within any bounds short of binding the cor- poration in all cases, where any director has such private knowl- edge. It may, perhaps, be correctly said, that, in all cases, it is the duty of every director to communicate all facts within his is, as such agent, to act upon the notice, or to communicate the information to his principal, in the proper discharge of his trust as such agent, is legal notice to the principal. And this rule applies to the agents of corporations as well as others." On the other hand, in Louisiana State Bank v. Senecal, 13 La. 525, 527, Mr. Justice Rost, in delivering the opinion of the court, said, "It was proved at the trial, that the note was given in payment of land sold by Mrs. Peychaud, and was delivered to her husband, Anatole Peychaud, who had signed with her the deed of sale. That deed contains a clause, that the note, upon which this action is brought, shall not be negotiated, nor the payment thereof exacted, until the property sold shall be fully released from all liabilities result- ing, or to result, from certain general mortgages then existing upon it. Pey- chaud, being at that time a director of the Louisiana State Bank, offered the note for discount, before the mortgages were raised ; was present at the board when it was acted upon ; took no part in the discount of it, and gave no in- formation to the board in relation to the restrictions contained in the act of sale. The note was discounted for his benefit, and the defendant now contends, that he was the agent of the bank, and that the knowledge of the agent being the knowledge of the principal, the plaintiffs are to be considered as having received notice, and ought not to recover. If the knowledge of those facts had been brought home to the president or cashier, we would unhesitatingly say, that the plaintiffs were bound by it, they being the executive officers of the bank, upon whom all notices and process may be served. But directors are not offi- cers of the bank, in the proper sense of the word, nor have they individually any power or control in the management of its concerns. They act collectively, and at stated times, and have otherwise no more to do with the general man- agement of the institution than the other stockholders. The director, in this instance, had a direct interest in suppressing the information he possessed ; and it would be extending constructive notices beyond all reasonable bounds to say, that the plaintiffs must be held cognizant of facts which are proved to have been intentionally concealed from them, by a person who, individiially, was neither their officer nor their agent." § 140.C-140e.J NATDBE AND EXTENT OF AUTHORITY. 165 knowledge or notice, which are material to the interests of the bank. Whenever, therefore, the question shall again directly arise in judgment, it will well deserve the profound consideration of those who shall be qalled upon to decide it, what, in a conflict of authority, ought, upon principle, to be the true rule to govern, with reference to the rights, and claims, and securities, not only of the members of corporations, but also of the public at large dealing with corporations. It may here be said in respect to both, " Una salus, ambobus periculum." § 140 d. If notice to any director be notice to the corporation, although never communicated to the other proper functionaries of the corporation, notice by any director ought equally to pre- vail in favor of the corporation, although not authorized by any act of the appropriate board superintending its concerns. Ques- tions may easily be put upon this subject, which would involve ; considerations of a very delicate and important nature. Would notice to a single director of a bank, of the dishonor of a bill or note indorsed by or on behalf of the bank, be notice to bind the bank, although the other directors never had any knowledge thereof? Would notice of the dishonor of a bill or note indorsed to, and held by the bank, given by one of the directors, be good to bind the indorsers, although unknown to the board of direct- ors, and never adopted by it ? Would a bank, holding bills or notes indorsed to it by one of its directors, be affected with all infirmities, or illegalities, or frauds, which might attach to it in his own hands upon the notion of constructive notice thereof? Would a mortgage made to a bank by one of its directors, or by a tliird person, be affected by prior unregistered incumbrances or other equities, attaching to it, whicli were known at the time to such directors ? Would a mortgagor be permitted to avoid a mortgage given by him to the bank, for a valuable consideration, without notice by the board of directors of any defect in the title, merely because one of the directors had, at the time, secret knowledge of facts which would avoid it ? These questions are put merely to show the extent to which the doctrine of construc- tive notice may be carried in regard to corporations which are compellable, by their charters, to act through the instrumentality of a board of directors. § 140 e. On the other hand, notice of facts to the principal is ordinarily notice thereof to the agent ; for it is the duty of the 166 AGENCY. [CH. VI. principal to communicate to his agent notice of the facts which come to his knowledge, touching the matter of the agency ; and if the principal suffers any loss or injury by want of such notice, he suffers by his own fault ; and if the . other party is injured thereby, he ought to have correspondent redress. ^ The law, therefore, imputes the knowledge of the principal to be the knowledge of the agent, either upon the presumption, that the principal has done his duty, or to avoid all circuity and difificultyj as to the mode and extent of the remedy. § 141. We have already had occasion to remark, that, although the powers of agents are, ordinarily, limited to particular acts ; yet, that extraordinary emergencies may arise, in which a person, who is an agent, may, from the very necessities of the case, be justified in assuming extraordinary powers ; and that his acts, fairly done, under such circumstances, will be binding upon his principal.^ Thus, for example, a factor will be justified in devi-| ating from his orders directing him to sell at a stipulated price, if the goods are of a perishable nature, and the sale is indispen- sable to prevent a total loss, or a greater loss.^ The master of a ship acquires in the same way, as we have seen, a superinduced authority over the cargo of the ship in cases of necessity, which does not belong to his ordinary agency.* Upon the same ground, perhaps, an agent, not generally authorized to insure, might, in \inforeseen exigencies, to prevent an irreparable loss to his prin- cipal, acquire a right to insure for his principal.^ So an agent, who is directed by his principal to place his funds in a certain place, may be justified or excused in sending them to another place, if there be reasonable grovind of alarm and danger, which prevents him from obeying his orders;^ » Mayhew v. Eames, 3 B. & Cressw. 601 ; Willis v. Bank of England, 4 Adolph. & Ellis, 21, 39. « Ante, § 85 ; Post, 118, 193, 194, 237 ; 2 Kent, Comm. Lect. 41, p. 614 (4th ed.) ; 3 Chitty pn Com. & Manuf. 218 ; Liotard v. Graves, 3 Gaines, 226; Lawler v. Keaquick, 1 John. Gas. 174 ; Drummond v. Wood, 2 Gaines, 310 ; Forrestier «. Bordman, 1 Story, 43. ^ 3 Chitty on Com. & Manuf. 218 ; 1 Comyn on Contr. 236. But see Anon. 2 Mod. 100 ; Story on Bailm. § 455 ; Ante, § 85 ; Chapman v. Morton, 11 Mees. & Wels. 540. * Ante, §§ 85, 118 ; The Gratitudine, 3 Rob. 255-268. » See Wolf «. Horncastle, 1 Bos. & Pull. 323 ; Paley on Agency, by Lloyd, 107, 108 ; 1 Liverm. on Agency, 123, 124. ° Perez v. Miranda, 19 Martin, 494. §§ 1406-143.] NATURE AND EXTENT OP AUTHORITY. 167 § 142. The same doctrine would seem to apply to the case of a mere stranger, acting for the principal without any authority, under circumstances of positive necessity ; as, for example, in the case of a stranger interfering to prevent irreparable injury to perishable property, occasioned by fire, shipwreck, inundation, or other casualties, or found without any known owner or agent, in order to its due protection or preservation. ^ In such cases, he performs the functions of the rtegotiorum gestor of the civil law ; and seems justified in doing what is indispensable for the preservation of the property, or to prevent its total destruction.^ Salvors, on land, equally with those at sea, in cases of this sort, are understood to be clothed with authority to dispose of the property saved for the interests of all concerned, if it be of a perishable nature, or unfit to await the regular determination of a court of justice.^ § 143. Cases bearing a strong analogy have also come under the cognizance of courts of equity. Thus, for example, where a foreign factor deviated from his orders, as to the price of goods to be shipped by him to his principal ; and the goods arrived ; and the principal refused to receive them ; the question arose, whether the principal was bound to return them, at all events, to the factor, by a reshipment ; or, whether he was at liberty to act as an agent from necessity, for the benefit of the original factor ; and, whether, if it was for the interest of the latter, he might sell them on the spot ; and it was thought that he might. And, even supposing that at law, under such circumstances, the principal would not be protected in such a sale, a court of equity would deal with it as a matter of equitable agency.* ' Story on Bailm. § 83. " Story on Bailm. § 189 ; Dig. Lib. 3, tit. 5, 1. 10, § 1 ; Id. 1. 45 ; Pothier, Pand. Lib. 3, tit. 5, n. 1-14 ; Pothier, App'x, Bu Quasi Oontrat Negot. Oes- torum; 1 Pothier on Oblig. n. 113-115; 2 Kent, Comm. Lect. 41, p. 616 (4th ed.) ; Ersk. Inst. B. 3, tit. 3, § 62 ; 1 Stair, Inst. B. 1, tit. 8, §§ 3-6, by Brodie. ' Story on Bailm. §§ 83, 83, a, 84, 121a, 189, 189 a, 190, 621a, 622-625.' ■• Paley on Agency, by Lloyd, 28-30, and note (m) ; Id. 32 ; Kemp v. Pryor, 7 Ves. jr. 240 ; Cornwall v. Wilson, 1 Ves. 609 ; Smith on Merc. Law, 52, 63 (2d ed.) ; Id. ch. 5, § 2, p. 99 (3d ed. 1843). Lord Eldon. on one occasion, said, " But I doubt, whether it may not be held, and whether it has not been held, by special juries before me, that in such a case as this, of goods exportied, and where the person receiving them abroad cannot return them, the vendee is authorized to sell them for the benefit of the vendor, and may hold 168 AGENCY. [CH. VII. CHAPTER VII. DUTIES AND OBLIGATIONS OF AGENTS IN EXECUTING AUTHORITY. [* § 144. Duties, obligations, and responsibilities of agents, next to be considered. 145. Questions in relation to duties and obligations of agents to their principal. 146. Agent ordinarily must act himself for his principal. 147. Agent must execute ordinarily a written contract in the name of the principal. 148. This rule regularly true in regard to all solemn instruments under seal; but not as to those not under seal. 149. As to agent of the king, or agent of corporation, to make deed. him liable in an action for damages, to the amount of the difference ; giving him the benefit of the sale in the foreign market.'' Again, " I go upon these particular oirciamstances : that, where there is a contract of sale and delivery, and the goods might, from the nature of the contract, be re-delivered; if under the circumstances they cannot be re-delivered, an equity arises from this, that the party cannot protect himself at law, as he cannot re-deliver ; and he was led into that by the misrepresentation of the other. The vendee, therefore, has a right to the extent of his loss ; the vendor to an account of the sales in the foreign market ; and whether the most was made of them ; which can only be made out by an account under the particular circumstances." Again, "I have a strong conviction, upon sound principles, confirtned by my short ex- perience at Guildhall, that, if a man under a contract to supply one article supplies another, under such circumstances that the party to whom it is supplied must remain in utter ignorance of the change, until the goods are under cir- cumstances in which it would be against the interest of the other to return or reject them, instead of doing what is best for him, selling them immediately, a jury would have no hesitation in saying, he ought to be considered, if he pleased, not as a purchaser, but as placed by the vendor in a situation, in which, acting prudently for him, he was an agent. The consequence, then, is, that he would be liable to account for the money received, subject to freight and other charges ; though, while the goods were in transitu, he had considered himself owner." Kemp v. Pryor, 7 Ves. jr. 240-242, 247. See also Cornwall v. Wil- son, 1 Ves. 509, where the same doctrine is affirmed by Lord Plardwioke, who said, " Bat, though I could incline to that, yet the present case turns on the latter part of the transaction, what defendant himself has done by taking these goods to himself, treating them as his own, not as factor for plaintiffs, as he would have himself considered by the custom of merchants ; as to which it is sworn (and it is very true and reasonable), that a merchant here, refusing the goods sent over by his factor in a foreign country, who exceeded the authority, having advanced and paid his money on these goods, may be considered as having an interest in the goods as a pledge, and may act thereon as a factor for that person, who broke his orders, and may therefore insure these goods, as he his done ; which might be reasonable, as it was war time." § 144.J AUTHORITY, HOW EXECUTED. 169 150. Reason of the doctrine founded in good sense. 151. Rule applies where a deed is to be made to a person through an agent. 152. Acts done in pais or in any other way than by instrument under seal, construed so as to accomplish intent of principal. 153. Execution of deed by agent ; form of ; name of principal must appear as grantor, and his seal and signature. 154. Execution of unsolemn instruments, especially commercial and maritime con- tracts, more liberally construed. Numerous illustrations. 154a. Construction of written contracts made by the defendants, as the " committee" of a religious society. 155. Same principles of coijstruction applj' where bills are drawn, accepted, or indorsed by agents. It must appear that agent means to bind principal. 156. Illustrations of the foregoing statements. 157. Known agent signing or accepting bills in his own name is personally liable. 158. Case of consignee and agent of a ship signing charter-party with master in his own name. 169. Case of bill drawn by principal upon agent, describing his agency; accepted gen- erally held to bind agent personally. 160. Although agents cannot ordinarily bind their principals by contract under seal in agent's name, so as to sustain an action by or against the principal, yet such contract may be collaterally binding on the principal. 160a. Far more liberal doctrine established as to contracts not under seal. 161. Cases illustrating the exceptions to the general rule as to sealed instruments, and the rule as to unsealed instruments. 162. Principle upon which these cases stand explained. 163. In the Roman law, the principal ordinarily not directly liable to the other party on the contract of his agent, nor could he enforce it in his own name. 164. Where the agent's power is coupled with an interest his authority may be exe- cuted, and in general properly is, in his own name. 165. Agent's authority must be punctiliously pursued. 166. How far an act is void when the agent does more or less than he is authorized to do. 167-169. Cases illustrating the subject. 170, 171. General principle of all these cases is the same; that the principal is bound where the agent's authority is substantially pursued. Illustrations. 172. True inquiry is, what is the nature and limits of the agent's authority. 173. Upon similar grounds, agent who has power coupled with an interest may do less than the terms of his authority seem directly to warrant, and yet bind his prin- cipal. 174. Roman law adopted similar distinctions. 175. The mere fact that the bargain is better for the principal will not avail the agent if it differ from the substance of his authority. 176. A deviation from his authority defeating the manifest inducements of the principal renders agent's purchase void. 177. Roman law on this subject. 178. Probable ground of the distinction. 179. Rules applicable to sales of land by agent. 180. In mercantile sales of personal property very liberal construction given to author- ity. 181. Agent authorized to receive payment of a debt ordinarily bound to receive whole of it in money ; circumstances varying this rule. 182. Degree of diligence required of agents. | 183. Reasonable skill and ordinary diligence required. 184. Roman law the same. 185. Whether proper skill and diligence has been applied, a question of fact ; considera- tions to determine it. 170 AGENCY. [CH. VII. 186. Case of factor employed to make sale of goods on consignment, fitly illustrates general doctrine as to degree required. 187. Duty of insurance brokers or agents. 188. Generally, agent having used reasonable diligence and skill is not liable for acci- dents, &c., happening without his default. 189. Agent is bound to execute the orders of his principal whenever for a valuable con- sideration he has undertaken to perform them. 190. Cases in which an agent is bound to insure. 191. What is due diligence and skill in obtaining insurance. 192. Incidental duties and obligations of an agent. 193. Instructions are applicable onlj' to the ordinary course of things, and in emer- gencies agent may deviate from them. 194. If strict performance becomes impossible without fault of agent, he is excused. 195. If the instructions require the agent to do an illegal or immoral act, he may vio- late them. Effect of performance by agent. 196. This rule not followed fully in our intercourse with foreign nations. ' 197. It will not be presumed that an agent is authorized to violate the laws of a foreign country. 198. Agent bound to execute his instructions with that degree of diligence and skill which prudent men exercise in similar affairs. 199. Must conform to known usage of trade. 200. Illustrations of the doctrine. 201. Agent authorized 'to employ sub-agent, and, using reasonable diligence in choice of sub-agent, not responsible for his acts. 202. Agent giving usual credit and using due diligence in selling to persons in good credit, not responsible for loss by subsequent insolvency or fraud. 203. Duty of agent, where business admits of it, to keep and to render to his principal full accounts of receipts and disbursements. 204. This duty strictly enforced in equity ; agent unreasonably delaying to render ac- count, presumed to have received money. 204a. General rule to keep distinct accounts of sales and receipts for different persons. 205. Penalty for mingling goods of principal with those of agent. Also, for investing or not investing money collected. 206. Agents becoming depositaries are subject to the duties ordinarily belonging to depositaries of the same nature. 207. All profits made by an agent in the course of his business belong to the prin- cipal. 208. Duty of agents to deposit money in the name of principals, and to give notice to their principals of every thing important to their interests. 209. Certain duties belong to certain classes of agents which are not of universal appU- ^ cation. 210. Agent cannot act in matters touching the agency so as to bind his principal, where he has an adverse interest in himself. 211. Hence, when employed to sell, he cannot himself become the purchaser; and when employed to buy cannot himself be the seller. 212. Presumption is jirimd/acie against a purchase of an estate by an attorney from his client. 213. Soman and French law in most respects the same. 214. Doctrine in all its applications founded upon the policy of protection to the prin- cipal, arid the advancement of his interests. 215. Contract of guaranty arising from the receipt of a del credere commission. 216. Agents may incur liabilities to third persons. 217. Agent is not ordinarily permitted to dispute the title of his principal. 217a. Agent employed by a trustee is accountable only to him and not to the cesttd que trust; and sub-agent to his superior agent only.] §§ 144-147.] AUTHORITY, HOW EXECUTED, 171 § 144. Let us, in the next place, proceed to the consideration of the duties, obligaitions, and responsibilities of agents. The latter, so far as their principals are concerned, naturally grow out of the former. So far as third persons are concerned, they may, in some measure, depend uppn, or arise from, collateral inquiries. § 145. And first, in relation to the duties and obligations of agents to their principals. These may admit of various considera- tions : (1.) What is the proper mode of executing the author- ity ; and what will be held a good execution thereof. (2.) What is the degree of diligence required of agents, in the proper exer- cise of their functions. (3.) What are the other incidental acts, which are required of them by law, in order to fulfil their duties and obligations. § 146. First. As to the proper mode of execution of their authority by agents. We have already seen that an agent can- not ordinarily delegate his authority, and, consequently, the act must be done by him in person, as it is a matter of personal con- fidence.^ Hence it follows, that if he is authorized to make a contract for his principal in writing, it must, in general, be per- sonally signed by him, and it cannot be signed by his clerk, either in his own name, as agent, or in the name of the principal, so as to bind the latter.^ We have also already seen how a joint au- thority is to be executed ; and therefore it is unnecessary to recur to that subject in this place.^ § 147. But a most material consideration is, as to the particu- lar form in which the agent, when he acts personally, is to exe- cute the authority, so as to bind his principal. And as to this, the rule usually laid down in cases of written contracts (subject, however, to the qualifications and exceptions hereafter stated),* is, that in order to bind the principal, and to make it his contract, the instrument must purport on its face to be the contract of the principal, and his name must be inserted in it, and signed to it, ' Ante, §§ 13, 14 ; Paley on Agency, by Lloyd, pp. 175-177 ; Coles v. Tre- cothick, 9 Ves. 236, 251, 252 ; Henderson v. Barnwall, 1 Y. & Jerv. 387 ; Colly I). Rathbone, 2 M. & Selw. 299 ; Catlin v. Bell, 4 Campb. 184 ; Coombe's case, 9 Co. K. 76, 76 ; Ex parte Sutton, 2 Cox, 84. « Coles V. Trecothick, 9 Ves. 235, 251, 252; Blore v. Sutton, 3 Meriv.237; Henderson «. Barnwall, 1 Y. & Jerv. 387. But see Ex parte Sutton, 2 Cox, 84. ' Ante, §§ 42, 44; Com. Dig. Attorney, C. 11. *■ Post, §§ 161, 162, 269, 270. 172 AGENCY. y [CH. VII. and not merely the name of the agent, even/ though the latter be described as agent in the instrument ; or kt least the terms of the instrument should clearly show, that the principal is intended to be positively bound thereby, and that the agent acts plainly as his agent in executing it.^ Indeed, the rule has been laid down ' Stackpole v. Arnold, 11 Mass. 27, 29 ; Bedford Commercial Ins. Co. v. Covell, 8 Met. 442. Mr. Justice Parker, in delivering the opinion of the court in the first case, said, " It might be sufficient for the decision of this cause to state that no person, in making a contract, is considered to be the agent of another, unless he stipulates for his principal by name, stating his agency in the instrument which he signs. This principle has been long settled, and has been frequently recognized ; nor do I know of an instance in the books of an attempt to charge a person as the maker of any written contract, appearing to be signed by another, unless the signer professed to act by procuration or authority, and stated the name of the principal, on whose behalf he gave his signature. It is also held, that whatever authority the signer may have to bind another, if he does not sign as agent or attorney, he binds himself and no other person." [But see Lindus v. Bradwell, 6 Com. B. 583.]' The same doctrine was affirmed in Bradlee v. Boston Glass Manufactory, 16 Pick. 347, 850. See also Arfridson v. Ladd, 12 Mass. 173-175 ; Savage v. Rix, 9 E". H. 263, 269, 270 ; Rice «. Gove, 22 Pick. 158, 161 ; Minard v. Reed, 7 Wend. 68 ; Pentz ». Stanton, 10 Wend. 271 ; Spencer v. Field, 10 Wend. 87. And such is now the well-settled law of Massachusetts as applied to bills of exchange and promissory notes. [* See Bank of British North America v. Hooper, 5 Gray, 567 ; Slawson V. Loring, 6 Allen, 340; Drapers. Mass. Steam Heating Co. ib. 388; Brown V. Parker, 7 Allen, 337.] We shall presently see that the doctrine here stated, if maintainable at all in respect to contracts not under seal, must be received with many qualifications and limitations. It seems directly opposed to the decision in Higgins v. Senior, 8 Mees. & Wels. 834, 844, and many other well-considered authorities. See post, §§ 164, 165, 160, 160 a, 161, 162, 269, 270, 275, 276, 391-400 ; Taintor v. Prendergast, 3 Hill, 72 ; Post, § 268. Indeed, in the case of the New England Mar. Ins. Co. v. De Wolf, 8 Pick. 56, 61, Mr. Chief Justice Parker laid down the doctrine in a manner which quali- fies the conclusion from the general language of the case of Stackpole v. Arnold, 11 Mass. 27, 29, restraining it to cases of sealed instruments. He there said, " If Clapp had authority to make the guarantee for the defendant, and the words are such as not clearly to bind himself alone, and it can be ascertained that he intended to act for De Wolf, the latter will be bound. The authorities cited to maintain the position, that the name of the principal must be signed by the agent, are of deeds only, instruments under seal ; and it is not desirable that the rigid doctrine of the common law should be extended to mercantile transactions of this nature, which are usually managed with more attention to the substance than to the form of contracts." See also Andrews v. Estes, 2 Fairf. 267, where the rule in Coombe's case is affirmed to apply only to con- tracts under seal. 2 Kent, Comm. Lect. 41, p. 631, note (a), (4th ed.) ; Post, §§ 160, 161. See also Daniells v. Burnham, 2 La. 243 ; American Jurist for Jan. 1830, vol. 3, pp. 78, 79 ; Post, §§ 269, 270 ; Stetson v. Patten, 2 Greenl. § 147.] AUTHORITY, HOW EXECUTED. 173 in broader terms ; and it lias been said to be an ancient rule of the law, that, when any one 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 liim who gives the authority.^ [It has therefore sometimes been thought not a sufficient execution for an agent to sign merely his principal's name, as if it were liis own personal act, but that he ought to add some words indicating that the signature was signed by an agent, and not by the principal. The propriety of such a mode of execution may be easily seen,^ but it cannot positively be 368; Stanton v. Camp, 4 Barbour, Sup. Ct. (N. Y.) 274; Taber u. Cannon, 8 Met. 466 ; Dyer v. Burnham, 35 Maine, 10 ; Burnham v. Williams, 7 Q. B. 103. [* It is not necessary to the validity of a notice to quit, given by the general agent of a landlord to a tenant, that the agency should appear on the face of the notice. Jones v. Phipps, Law Rep. 3 Q. B. 567.] ' Coombe's case, 9 Co. E,. 76, 77 ; Cora. Dig. Attorney, C. 14 ; Paley on Agency, by Lloyd, 180-182 ; 2 Kent, Comm. Lect. 41, pp. 629-631 (4th ed.) ; Clark V. Courtney, 5 Pet. 319, 349, 360 ; Shack v. Anthony, 1 M. & Selw. 573 ; Parker v. Kett, 1 Salk. 95 ; s. c. 2 Mod. 466 ; Lynch v. Postlethwaite, 7 Miller, La. 293 ; New England Mar. Ins. Co. v. De Wolf, 8 Pick. 56, 61 ; Andrews V. Estes, 2 Fairf. 267 ; Abbott on Shipp. P. 2, ch. 2, § 5 (ed. 1829) ; Abbott on Shipp. P. 3, ch. 1, § 2 ; Harper v. Hampton, 1 Harr. & John. 622 ; Amer- ican Jurist for January, 1830, vol. 3, pp. 52-86 ; Wilks v. Back, 2 East, 142 ; Stinchfield v. Little, 1 Greenl. 231 ; Elwell v. Shaw, 1 Greenl. 339 ; Heffernan u. Addams, 7 Watts, 121; Mears v. Morrison, 1 Breese (111.), 172; Sheldon V. Dunlap, 1 Harr. (N. J.) 246. \^ In Wood V. Goodridge, 6 Cush. 120, Fletcher, J., said, " The first ques- tion, as to the plaintiff's title to the land, is, whether the form of executing the mortgage and note by the attorney was a legal execution of his power as such ; whether signing the name of the principal, Benjamin Goodridge, as if it were his own personal act and signature (it not appearing upon the instruments to be done by Levi as attorney), was a good execution of the instruments un- der the power, so as to make them valid as the deed and note of Benjamin, and thus eifectually to convey the land to Sewall Goodridge by the mortgage under which the plaintiff's title is derived. When one writes the name of another to a deed, in his presence, at his request, and by his direction, the act of writing is regarded as the party's personal act, as much as if he had held the pen, and signed and sealed the instrument with his own hand. Story, Ag. § 51 ; Bull «. Uunsterville, 4 T. R. 313 ; Lovelace's case, W. Jones, 268 ; Hibblewhite v. M'Morine, 6 Mees. & Wels. 200, 214, 215 ; Gardner v. Gardner, 5 Cush. 483. In the present instance, the deed and note were not executed by Benjamin personally ; nor in his presence, but in his absence ; and, so far as appears, 174 A(3ENCT, [CH. Til. said, upon the authorities, to be absolutely necessary to the validity of the instrument.^] ■ § 148. This rule, thus laid down, is regularly true in regard to without his knowledge. But, upon the face of the papers, they appear to have been signed by him personally and with his own hand. In fact, they were signed by Levi ; but it does not appear, upon the face of the papers, that in signing the name of Benjamin, Levi acted as his agent, or intended to act under the power of attorney from Benjamin, or meant to execute the authority givgn by that power. The deed and note, which thus appear to be signed by Benjamin personally, when, in fact, they were signed by Levi, are not such instruments as Levi was authorized to make. He was authorized to make instruments in the name of Benjamin ; not as made by Benjamin personally ; but by Levi, in his name, as his attorney. It should appear upon the face of the instruments, that they were executed by the attorney, and in virtue of the authority delegated to him for this purpose. It is not enough, that an attorney in fact has authority, but it must appear, by the instruments themselves which he executes, that he intends to execute this authority. The instruments should be made by the attorney expressly as such attorney ; and the exercise of his delegated author- ity should be distinctly avowed upon the instruments themselves. Whatever may be the secret intent and purpose of the attorney, or whatever may be his oral declaration or profession at the time, he does not in fact execute the instruments as attorney, and in the exercise of his power as attorney, unless it is so expressed in the instruments. The instruments must speak for themselves. Though the attorney should intend a deed to be the deed of his principal, yet it will not be the deed of the principal, unless the instrument purports on its face to be his deed. The authority given clearly is, that the attorney shall execute the deed as attorney, but in the name of the principal. There is much learning and much discussion, in the books of the law, as to the proper mode of executing authority by agents. In what form the agent should execute his authority, so as to bind his principal, and not bind himself, has been a subject largely considered in elementary works, and much discussed in numerous adjudged cases. The rule commonly laid down by all the au- thorities is, that to bind the principal, the instrument must purport, on its face, to be the instrument of the principal, and executed in his name ; or, at least, that the tenor of the instrument should clearly show, that the principal is intended to be bound thereby, and that the agent acts merely as his agent in executing it. But it is contended, that it is nowhere laid down in any work of authority, or established by any adjudged case, that the agent may put the name of the principal, as his own personal act and signature ; the execution of the agent, as agent, not being in any way disclosed. Such an execution does not appear to ' See Forsyth v. Day, 41 Maine, 882 ; 11 Cush. 697. [* See also Hunter V. Giddings, 97 Mass. 41.] §§ 147, 148.] AUTHORITY, HOW EXECUTED. 175 all solemn instruments under seal,^ although not, as we shall presently see, as to instruments not under seal.^ Therefore, if a person is authorized by a power of attorney to make a convey- ance under seal of the lands of his principal ; and he makes the conveyance by a deed in his own name, it will be a void convey- ance.^ And it will make no difference in the case, that, in the be warranted by the power delegated to execute the instrument as attorney, but in the name of the principal. If such a mode of execution is proper and legal, it seems most remarkable that it is nowhere stated or suggested in any work of authority. The execution of instruments by agents, in this way, would certainly be attended with great difficulties and dangers. If the agent might execute instruments in this mode, the principal, if he found his name signed to an instrument, would have no means of knowing by whom it had been signed, or whether he was bound or not bound by such signature ; and other persons might be greatly deceived and defrauded, by relying upon such signature as the personal act and signature of the principal, when the event might prove, that it was put there by an agent who had mistaken his authority, and consequently that the principal was not bound. When it should be discovered that the name of the principal was not written by him, as it purports to be, it might be wholly impossible to prove the execution by attorney, as there would be nothing on the note to indicate such an execution. For authorities as to the form of execution of the mortgage and note, see Story, Ag. §§ 147, 148, 153, notes, and cases cited; Hoffman's opinion, in 3 Am. Jur. 71-85 ; Wilks v. Back, 2 East, 142 ; Story, Notes, §§ 11, 66, 71. In the case of Stackpole v. Arnold, 11 Mass. 27, 29, Parker, C. J., said, "No person, in making a contract, is considered to be the agent of another, unless he stipulates for his principal by name, stating his agency in the instrument which he signs. This principle has been long settled, and has been frequently recognized ; nor do I know an instance in the books of an attempt to charge a person as the maker of any written contract, appearing to be signed by another, unless the signer professed to act by procuration or authority, and stated the name of the principal on whose behalf he gave his signature.'' There is a dictum of Lawrence, J., in the case of Wilks v. Back, 2 East, 142-146, which would seem to import, that an agent might put his principal's name, without stating it to be by attorney. But it is but a dictum, the import of which is not entirely clear and certain. Though there is no direct authority to the point, the court are inclined to think, that the execution of the mortgage and note, in the present case, were not such as the attorney was authorized to make, and not such as to make them valid and binding.] ' Ibid. = Post, §§ 154, 156, 275-279. = Coombe's case, 9 Co. K. 77 a ; 1 Roll. Abridg. Authority, p. 330, 1. 37 ; Com. Dig. Attorney, C. 14; Erontin v. Small, 2 Ld. Rayra. 1418; s. c. 2 Str. 706; Wilks D. Back, 2 East, 142; Eowler v. Shearer, 7 Mass. 14; Elwell v. 176 AGENCY. [CH. VII. deed, the agent describes himself as such ; as if he says, " Know all men by these presents, that I, A. B., as agent of C. D., do hereby grant, sell, convey, &c. ; " or if he signs and seals it, "A B., for C. D. ; " for, in such a case, it is still his own deed, and not the deed of his principal.^ For the same reason, if a person be authorized by a power of attorney to make a release,, and he draws and executes the same in his own name, it will not bind his principal, or be the release of the latter.^ A court of equity might, indeed, if the release were for a valuable consideration, compel the principal to make a release in his own name, or com- pel the agent to execute a proper release, or grant other relief adapted to the circumstances.^ § 149. Upon the same ground, where an agent of the king is, by letters-patent, authorized to execute a deed of lease for the king, the deed must be drawn and executed in the name of the king, and the king's seal must be affixed thereto ; for if the Shaw, 16 Mass. 42; s. c. 1 Greenl. 339; Copeland v. Merch. Ins. Co. 6 Pick. 198 ; Lutz V. Linthicum, 8 Pet. 165 ; 2 Kent, Comm. Lect. 41, pp. 631, 632 (4th ed.) ; Stone v. Wood, 7 Cowen, 463 ; Clarke v. Courtney, 5 Pet. 319, 349, 350; American Jurist for January, 1880, vol. 3, pp. 71-85, where the leading cases are collected in a learned argument of Mr. Professor David Hoffman, of Baltimore ; Stinchfield v. Little, 1 Greenl. 231 ; Sheldon v. Dun- iap, 1 Harr. (N.J.) 245; Townsend ». Hubbard, 4 Hill, 351, 357, 358. [* It seems, that a signature to a deed by an attorney in his own name, may in equity, bind his principal, known as such to all the parties at the time, although it is not binding at law. Robbing v. Butler, 24 111. 387.] " Frontin v. Small, 2 Ld. Raym. 1418 ; s. c. 2 Str. 705 ; Wilks v. Back, 2 East, 142 ; Bacon v. Dubary, 1 Ld. Kaym. 246 ; Paley on Agency, by Lloyd, 181-183 ; Bac. Abridg. Leases, I. § 10 ; Com. Dig. Attorney, C. 14 ; Spencer ». Field, 10 Wend. 87 ; White v. Cuyler, 6 T. R. 176 ; Appleton v. Binks, 5 East, 148 ; Cayhill v. Fitzgerald, 1 Wils. 28, 68 ; D'Abridgecourt v. Ashley, Moore, 818, pi. 1106 ; Bogart v. De Bussey, 6 John. 94 ; Taft v. Brewster, 9 John. 334; 2 Kent, Comm. Lect. 41, p. 631 (4th ed.) ; Tippetts u. Walker, 4 Mass. 696; Fowler v. Shearer, 7 Mass. 14; Elwell v. Shaw, 16 Mass. 42; Fetter ». Field, 1 La. An. 80 ; Clarke v. Courtney, 6 Pet. 349-851 ; Martin v. Flowers, 8 Leigh (Va.), 158; Hall v. Bainbridge, 1 Mann. & Gr. 42; Townsend «. Hubbard, 4 Hill, 351 ; Skinner B. Gunn, 9 Port. 806. » Com. Dig. Attorney, C. 14; Moore, 818, pi. 1106; Wells u. Evans, 20 Wend. 261. The statute of Maine, of 1823, ch. 220 (vol. 3, p. 49), provides, that deeds made by an agent, in his own name, shall be valid, provided the agent had authority, and it appears on the face of the deed that he meant to execute the authority. " See Yerbyj). Grisby, 9 Leigh (Va.), 387; McNaughten ». Partridge, 1 Ohio, 223. §§ 148, 149.] AUTHORITY, HOW EXECUTED. 177 agent affixes his own seal, and says, " In testimony whereof I have hereunto set my seal," the execution will be bad; for unless it be the king's seal, it cannot be his deed of lease.^ The same principle will apply to the case of a power of attorney given by a corporation to execute a deed. To bind the corpora- tion, the deed must be under the seal of the corporation, and not under the seal of an attorney.^ [And in a late American case, a deed by a corporation, in which the formal part was, "Know all men, &c., that the New England Silk Co., a cor- poration, by C. C. their treasurer, &c., do hereby grant, &c.," and signed thus: " In witness whereof, I, the said C. C, in be- half of said company, and as their treasurer, do hereto set my hand and seal. 0. C, Treasurer of New England Silk Co.," — was held not properly executed, and not the deed of the corporation.^] ' Bac. Abridg. Leases, I. § 10; Paley on Agency, by Lloyd, 181; Anony- mous, Moore, 70, pi. 191. The anonymous case in Moore, 70, pi. 191, is very strong in point. There the king, by his letters-patent, had authorized his sur- veyor to make leases ; and the surveyor made a lease beginning, ' ' This inden- ture, made between our lord the king of the one part, and J. S. of the other part, witnesseth, &c. That our lord the king demiseth, &c.'' But at the end, the words were, ' ' In testimony whereof, the said (the surveyor) hath hereunto set his seal ; " and it was held, that the lease was void ; for the seal of the sur- veyor was not the seal of the king ; and so the lease was not the lease of the king. See also Clarke v. Coultney, 5 Peters, 349-361 ; Townsend v. Hubbard, 4 Hill, 351, 358. ' Bank of Columbia v. Patterson's Adm'r, 7 Cranch, 299, 308 ; Damon v. Inhab. of Granby, 2 Pick. 345 ; Tippetts v. Walker, 4 Mass. 696, 697 ; Hatch V. Barr, 1 Ohio, 390 ; Brinley v. Mann, 2 Cushing, 337, a strong case on this point. Savings-Bank v. Davis, 8 Conn. 192; Flint v. Clinton Co. & Trustee, 12 N. H. 433. There is a distinction between doing an act by an agent, and doing an act by a deputy, whom the law deems such. An agent can only bind his principal, when he does the act in the name of his principal. But a deputy may do the act, and sign his own name ; and it binds his principal ; for the deputy in law has the whole power of his principal. Parker v. Kett, Salk. 96 ; Craig v. Radford, 3 Wheat. 694. [' Brinley v. Mann, 2 Cush. 337. Metcalf, J., said, " It is a rule of con- veyancing, long established, that deeds which are executed by an attorney or agent must be executed in the name of the constituent or principal. In Coombes's case, 9 Co. E. 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 him who gives the authority.' And in Fowler v. Shearer, 7 Mass. 19, Parsons, C. J., says, 'It is not enough for the attorney, A.6ES0Y. 12 178 AGENCY. [CH. Til. § 150. The reason of this doctrine, although at first view it may seem somewhat artificial, is not wholly technical, but seems founded in good sense. Where an interest is to pass by an in- strument, it must in terms purport to be conveyed by him, in whom alone that interest is vested. A power of attorney to convey is but a naked power, and transfers no interest to the attorney ; and, consequently, as no interest is vested thereby in the agent, his own conveyance can pass none to his grantee. It cannot pass the interest of the principal ; for he is not a party thereto, or the grantor thereof; and it is not the instrument which he has authorized to be executed.^ In this respect, the 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 executed by the attorney in his name.' This doctrine, which was applied in Elwell v. Shaw, 16 Mass. 42, and in other cases cited by the demand- ants' 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 pur- pose of executing it. But this, as we have seen, was ' not enough.' He should have executed the deeds in the name of the company. He should also have affixed to them the seal of the company, and have acknowledged them to be the deeds of the company. 1 Crabb on Keal Property, §§ 703, 706 ; 4 Kent, Comm. (3d ed. 451 ; Stinchfield v. Little, 1 Greenl. 231 ; Savings-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 Vt. 385, cited by the tenant's counsel, was decided upon a statute of Vermont, which authorizes certain cor- porations 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.' "] ' Paley on Agency, 181-183, Bac. Abridg. Leases, I. § 10 ; Coombes's case, 9 Co. K. 77 ; Lutz v. Linthicum, 8 Peters, 165. The reasoning of Lord Ch. Baron Gilbert on this subject in Bac. Abridg. Leases, 1. § 10 (4 Gwillim's Bac. Abridg. 140), is very full on this point. " If one hath power" (says he) "by virtue of a letter of attorney, to make leases for years generally by indenture, the attorney ought to make them in the name and style of his master, and not in his own name. For the letter of attorney gives him no interest or estate in the lands, but only an authority to supply the absence of his master by stand- ing in his stead, which he can no otherwise do than by using his name, and §§ 150-152.] AUTHORITY, HOW EXECUTED. 179 case differs from that of a power coupled with an interest in the property ; for, there, the deed of the agent may convey the interest Tested in him in connection with the power.^ § 151. The same doctrine will apply to cases where a deed is to be made to a person through the instrumentality of his agent. The deed must be made to, and in the name of, the principal ; for if it be made to, and in the name of, the agent, although it describes him as agent of the principal, as if it be a grant " to A. B. for, and as agent of, 0. D.," the deed will convey nothing to the principal ; but it will take effect as a conveyance only to the agent himself, although it may be a trust for his principal.^ So, if an agent should in a sealed instrument describe himself as an agent, and covenant that he himself, or that his principal will do a certain thing, and the deed is executed in his own name, he alone will be liable thereon, and the term " agent," will be deemed a mere descriptio personce.^ § 152. But where an act is to be done in pais, or in any other manner than by a written instrument, under seal, there, the act will be so construed, if it may be, as most effectually to accom- making them just in the same manner and style as his master would do if he were present. For if he should make them in his own name, though he added also, by virtue of the letter of attorney to him made for that purpose ; yet such leases seem to be void ; because the indenture, being made in his name, must pass the interest and lease from him, or it can pass it from nobody. It cannot pass it from the master immediately, because he is no party ; and it cannot pass it from the attorney at all, because he has nothing in the lands. And then his adding by virtue of the letter of attorney, will not help it ; because that letter of attorney made over no estate or interest in the land to him, and consequently, he cannot, by virtue thereof, convey over any to another. Neither can such interest pass from the master immediately, or through the attorney ; for then the same indenture must have this strange effect at one and the same instant, to draw out the interest from the master to the attorney, and from the attorney to the lessee, which certainly it cannot do. And therefore all such leases made in that manner seem to be absolutely void, and not good, even by estoppel, against the attorney ; because they pretend to be made, not in his own name absolutely, but in the name of another, by virtue of an authority, which is not pursued. See also Clarke ». Courtney, 6 Peters, 349, 350. ' Hunt V. Rousmaniere's Adm'r, 2 Mason, 244 ; s. c. 3 Mason, 294 ; s. c. 8 Wheat. 174, 202, 203 ; s. c. 1 Peters, 1 ; Post, § 164. = See 1 Stair, Inst, by Brodie, B. 1, tit. 12, § 16 ; Clarke v. Courtney, 5 Peters, 319, 349, 360. See Fox v. Frith, 10 Mees. & Wels. 136. ' Deming v. Bullitt, 1 Blackf. Ind. 241; HaU v. Bainbridge, 1 Mann. & Gr. 42 ; Post, § 450. 180 AGENCY. [CH. Ytl. plish the end required by the principal ; ^ for, where the act may take effect, if construed one way, and will be defeated, if con- strued another way, " ut res magis valeat, quam pereat," it will, to accomplish the intention of the parties, be construed so as to give it validity .2 Thus, if a power of attorney should authorize an agent to make a surrender of a copyhold, or to make livery of seisin ; and the agent should, in making the surrender or livery, say, I, A. B., as attorney of C. D., or by virtue of a letter of attorney from C. D., do surrender, &c., or do deliver to you seisin of such lands (naming them) ; such an act will be held valid and binding upon the principal, as his own act ; because (it is said) such acts are only ministerial or transitory acts in pais, the first to be done by holding the court-rod, and the last by delivering a turf or twig ; and when the agent does them as an attorney, or by virtue of a letter of attorney from the principal, the law pro- nounces them to be done by the principal himself, and carries the possession accordingly.^ So, the delivery of a deed by an agent for the principal, after its due execution, as the deed of the principal, is governed by the same rule ; for the delivery is an act in pais.* The better reason in all such cases seems to be, that as the agent, doing the act, intends it to be done as the act of his principal, his act shall be construed accordingly, and not as his own personal act, upon the maxim already stated. § 153. And even in the case of deeds, if the name of the prin- cipal be properly stated therein, as the grantor, and the seal and signature of the principal are affixed thereto, the form of the words used in the execution and subscription of the deed by the agent will not be material. The true and best mode in such cases undoubtedly is, to sign the name of the principal (" A. B.") and to add, " by his attorney, C. D." But it will be suf&cient, if the signature in such case be, " For A. B." (the ppncipal) " 0. D." (the agent) ; for, under such circumstances, the order of the words is not material,^ as the deed purports on its face to be ' [See Ish V. Crane, 8 Ohio St. 635.] ' Paley on Agency, by Lloyd, 181 ; Parker v. Kett, 1 Salk. 95 ; 8. c. 12 Mod. 467 ; Anderson v. Highland Turnpike Co. 16 John. 86. » Bac. Abridg. Leases for Years, 1 § 10 (4 Bac. Abridg. by Gwillim, 140); Com. Dig. Attorney, C. 14 ; Coombes's case, 9 Co. R. 77 ; Parker v. Kett, 1 Salk. 95 ; s. c. 12 Mod. 467 ; Clarke v. Courtney, 5 Peters, 319, 350, 351. * Ibid. ' Mussey v. Scott, 7 Cush. 216 ; Hunter v. Miller, 6 B. Monroe, 612; Wil- §§ 152-154.J AUTHOBITT, HOW EXECUTED. 181 the deed of the principal ; and the intention is to execute it in his name, and as his deed.^ Indeed, in all cases where the instru- ment purports on its face to be intended to be the deed of the principal, and the mode of execution of it by the agent, however irregular and informal, is not repugnant to that purport, it would probably be construed to be the deed of the principal, especially where the In testimonium clause is, that the principal has thereto affixed his seal.^ § 154. But although the rule is thus strict in relation to the mode of executing sealed instruments, where, from the objects of the instruments, as well as the due technical and legal operation of the same, it is essential that they should be in the name of the burn V. Larkin, 3 Blackf. 56 ; Martini). Almond, 25 Mo. 313 ; Deming v. Bul- ]itt, 1 Blackf. 242. ' Wilks V. Back, 2 East, 142 ; Abbott on Shipp. Part III. eh. 1, § 2, note (c). In this case, the deed purported to be the deed of M. W. & J. B., and it was executed, having two seals, thus : " M. W." (l. s.) " for J. B. M. W. (l. s.) ; " and it was held to be the deed of J. B. Mr. Justice Grose said, "Whether the attorney put his name first or last, cannot affect the validity of the act done." Mr. Justice Lawrence said, "Here the bond was executed by W. for, and in the name of his principal, and this is distinctly shown by the manner of making the signature. Not that even this was necessary to be shown; for if W. had sealed and delivered it in the name of B., that would have been enough without stating that he had so done. There is no particular form of words required to be used, provided the act be done in the name of the principal." Mr. Justice Le Blanc said, " I cannot see what difference it can make as to the order in which the names stand. But if, in this case, W., instead of putting the name of his principal (B.) had made the execution in his own name only, as ' W. (l. s.),' the case might have been different." Query, what would have been the effect, if the In testimonium clause had been, " In testi- mony whereof the said J. B. (the principal), hath hereunto set his seal; " and the signature had been "W. (l. s.)"? The whole subject has been discussed with a good deal of learning by Mr. Professor Hoffman, in an article in No. 5 of the American Jurist, pp. 71-81; Mears v. Morrison, 1 Breese (111.), 172; Deming v. Bullitt, 1 Blackf. 241, 242. It is to be remarked, that this doctrine, as to the manner of the execution of a sealed instrument in order to bind the principal, is to be applied to the mere liability of the principal at law on the instrument ; for there are many cases, where, in equity, the principal might be bound to fulfil the contract, notwithstanding he was not bound by it at law. Van Reimsdyk v. Kane, 1 Gall. 630 ; 8. c. 9 Cranch, 163 ; Devinney v. Reynolds, 1 Watts & Serg. 828 ; McNaughten v. Partridge, 11 Ohio, 232 ; Ante, § 148 ; Post, § 162. " Ibid, and supra, note; Post, § 160. See also Anon., Moore, 70, pi. 191; Devinney c. Reynolds, 1 Watts & Serg. 328 ; Stanton v. Camp, 4 Barbour, Sup. Ct. (N. Y.) 274. 182 AGENCY. [CH. VII. principal, and under his seal ; yet a more liberal exposition is allowed in cases of unsolemn instruments, and especially of com- mercial and maritime contracts, which are usually drawn up in a loose and inartificial manner.^ In such cases, in furtherance of the public policy of encouraging trade, if it can, upon the whole instrument, be collected, that the true object and intent of it are to bind the principal and not to bind the agent, courts of justice will adopt that construction of it, however informally it may be expressed.^ Thus, where an agent duly authorized, made a promissory note, thus : " I promise to pay J. S. or order, &c.," and signed the note, " Pro C. D. A. B.," it was held to be the note of the principal, and not of the agent, although the words were, "I promise." ^ So, where A. and B. wrote a note in these words : " We jointly and severally promise," and signed it A. and B. for C, it was held to be the note of C, and not of A. and B. the agents.* So, where the note was, " I promise," &c., and it was signed by the agent, " For the Providence Hat Manufactur- ing Company," A. B. (the agent) ; it was held to be a note of the company, and not of the agent.^ So a promissory note of a like tenor, signed by the agent in this manner: "A. B., agent for C. D.," ha:s been held to be the note of the principal, and not of the agent.^ So, where a promissory note was in these words : " I, the subscriber, treasurer of the Dorchester Turnpike Corporation, for value received promise, &c. ; " and it was signed " A. B., Treasurer of the Dorchester Turnpike Corporation," it was held to be the note of the corporation, and not of the treasurer.^ So, » N. E. Mar. Ins. Co. v. De Wolf, 8 Pick. 66; Ante, § 147, note; Bell v. Bruen, 1 Howard, Sup. Ct. 169 ; s. c. 17 Peters, 161. ' Ibid. ; Pentz v. Stanton, 10 Wend. 271 ; Mechanics' Bank of Alexandria V. Bank of Columbia, 5 Wheat. 326 ; Post, 269, 270, 276, 276, 395-400 ; Towns- end V. Hubbard, 4 Hill, 361 ; Alexander v. Bank of Rutland, 24 Vt. 227. [* Olcott V. Tioga Railroad Co. 27 N. Y. Ct. of Ap. 669.] ' Long V. Coburn, 11 Mass. 97. * Rice V. Gove, 22 Pick. 158 ; Post, §§ 275, 276, 395. * Emerson !j..Prov. Hat Manuf. Co. 12 Mass. 237. « Ballou V. Talbot, 16 Mass. 461 ; Despatch Line of Packets ». Bellamy Manuf. Co. 12 N. H. 229 ; Roberts ti. Button, 14 Vt. 195 ; Robertson v. Pope, 1 Richardson, 501 ; Campbell v. Baker, 2 Watts, 88. But see, contra, De Witt ». Walton, 6 Selden, 671. ' Mann v. Chandler, 9 Mass. 336. See Hills v. Bannister, 8 Cowen, 31 ; Post, § 276 ; Barker v. Mechan. Fire Ins. Co. 3 Wend. 94 ; Mott v. Hicks, 1 Cowen, 613; Brockway v. Allen, 17 Wend. 40. [* See Fiske v. Eldridge, § 154.] AUTHORITY, HOW EXECUTED. 183 where a note purported to be a promise by " The President and Direetors " of a particular corporation, and was signed " A. B., President " [or J. W., Cashier^], it was held to be the note, not of A. B., but of the corporation.^ But if the note had been, " I, A. B., President of the Corporation (naming it) promise to pay, &c.," it would (it seems) have been deemed to be the personal note of A. B., and not of the corporation.^ [And where the note read " I promise to pay," &o., signed " C. N., Pres't of the Dor- chester Avenue Railroad," it was held to bind 0. N. personally, although given by authority for the benefit of the company.*] So, where the agent of a corporation drew a bill of exchange upon the president of the corporation, styling him such, and the 12 Gray, 474, where several cases on this subject are cited : also, Haverhill Mut. Fire Ins. Co. v. Newhall, 1 Allen, 130 ; Gillig v. Lake Bigler R. Co. 2 Nev. 214.] ' Farmers' Bank v. Troy City Bank, 1 Douglass, 107. ' Mott V. Hicks, 1 Cowen, 513. See also Bowen v. Morris, 2 Taunt. 374 ; Shelton V. Darling, 2 Conn. 435 ; Brockway v. Allen, 17 Wend. 40 ; Post, § 278 and note, § 279. ' Barker v. Mechan. Fire Ins. Co. 3 Wend. 94. But see Brockway v. Allen, 17 Wend. 40 ; Hills v. Bannister, 8 Cowen, 31 ; Post, § 276 ; Mann v. Chan- dler, 9 Mass. 335. It is not easy to reconcile all the cases in the books on this subject ; although I cannot but think, that the true principle to be deduced from them is that stated in the text. See Paley on Agency, by Lloyd, pp. 378-385, and Bayley on Bills (2d Amer. ed. from 6th London ed.) , by Phillips & Sewall, ch. 2, § 7, pp. 68-76 (ed. 1836), and notes, ibid; Bowen v. Morris, 2 Taunt. 374 ; Kennedy v. Gouveia, 3 Dowl. & Ryl. 603 ; Dubois v. Del. & Hudson Canal Co. 4 Weni. 285. In Pentz v. Stanton, 10 Wend. 271, where an agent drew a bill for a purchase of goods, on account of his principal, and signed the bill A. B., agent, not stating the name of his principal, it was held that he, and not his principal, was personally bound by the bill, as drawer. But the prin- cipal was held liable for the goods, on a count for goods sold and delivered, as the form of the bill showed that exclusive credit was not given to the agent. There is a curious case cited in the Digest, Lib. 14, tit. 3, 1. 20, where the ques- tion, whether an agent, who wrote a letter to a creditor, stating himself to be agent of his principal, was personally liable on the contract stated in the letter ; and it was held that he was not, as he wrote confessedly as an agent. Pothier, Pand. Lib. 14, tit. 3, n. 2; 1 Domat, B. 1, tit. 16, § 3, art. 8. In Dubois v. Del. & Hudson Canal Co. 4 Wend. 285, an agent signed and sealed a contract, " M. W., agent for the Del. & Hudson Canal Co. ; " and it was held, that he was not personally liable thereon, as he was authorized to make the contract, although it was not under the seal of the corporation. S. P. Randall v. Van Vechten, 9 John. 60. But see Hopkins v. Mehaffey, 11 Serg. & R. 129 ; Kean v. Davis, Spencer, 426. See post, §§ 274-278. * Haverhill Mut. Fire Ins. Co. v. Newhall, 1 Allen (Mass.), 130. 184 AGENCY. [CH. VII. latter accepted the bill, it was held, that he was not personally liable, if he had authority to accept the bill ; but the corporation was alone liable.^ So, where the agents of a corporation, being duly authorized, made a written contract, as follows : " We hereby agree to sell," &c., and signed it as agents of the corporation, it was held, that they were not personally bound thereby ; but the corporation was.^ So, where A., an agent duly authorized, wrote on a note, " by authority from B., I hereby guaranty the payment of this note," and signed in his own name, A. ; it was held to be the guaranty of the principal, and not of the agent.^ So where A., an agent, entered into and signed an agreement " as agent for and on behalf of B.," and B. shortly afterwards wrote on it the words, " I hereby sanction this agreement, and approve of A.'s having signed it on my behalf; " it was held to be the agreement of B., and that A. was not personally responsible thereon.* So, where on a sale of real property by a corporation, a memorandum of the sale was signed by the parties, on wliich it was stated, that the sale was made to A. B., the purchaser, and that he and C. D., " mayor of the corporation, on behalf of himself and the rest of the burgesses and commonalty of the borough of Caermarthen, do mutually agree to perform and fulfil, on each ' Lazarus v. Shearer, 2 Ala. 718, n. s. See also Eobertson v. Pope, 1 Rich. 601 ; Wyman v. Gray, 7 Har. & John. 409 ; Lyman v. Sherwood, 20 Vt. 42. [A charter-party expressed to be "between P., of the good ship C-, and W., agent for E. W. & Son,'' to whom the ship was to be addressed, and signed by W. without any restriction, binds W. personally. Parker v. Winslow, 7 El. & Bl. 944.] [* But a charter-party made in London between the plaintiff, ship-owner, and the defendant, "as agents to S. F., of Anamaboe, merchants and charterers," was signed, " for D." (the plaintiiF), " owner H. G., as agent. For S. F. of Anamaboe, G. Brothers " (the defendants) , " as agents." The char- ter-party was partly written and partly printed, the words " merchants " and " charterers " being printed, and in the plural, throughout it. The defendants, merchants in London, acted in England as agents for S. F., a native of Africa, and residing at Anamaboe, in that country. By the charter-party the plaintiff's ship was chartered for a voyage from London to Africa and back, and freight was made payable on delivery of the return cargo ; and it was held, that the defendants were not personally liable, as principals, on the charter-party. Deslandes v. Gregory, 2 El. & El. 602, Exch. Cham.] * Marny v. Beekman Iron Co. 9 Paige, 188 ; Evans v. Wells, 22 Wend. 326. ' N. E. Mar. Ins. Co. v. De "Wolf, 8 Pick. 66. See Passmore v. Mott, 2 Binn. 201 ; Post, §§ 160 a, 161, 269, 270, 276, 276, 396-400. * Spittle V. Lavender, 2 Brod. & Bing. 462. § 154.] AUTHORITY, HOW EXECUTED. 185 of their parts respectively, the conditions of sale," and then came the signature of the purchaser, and of " C. D., mayor ; " it was held, that the agreement was that of the corporation, and not that of the mayor personally ; and that, consequently, the mayor could not sue thereon.^ So, where in articles of agreement the covenants were in the name of a corporation without mention of any agent, but the instrument was signed by the president of the corporation by his private name on behalf of the corporation, and sealed with his private seal, it was held, that he was not person- ally liable thereon.^ On the other hand, unless some agency is apparent on the face of the instrument, it has been not unfre- quently held, that the principal is not bound, although the agent had full authoi'ity to make the contract.^ Thus, where a wife had full authority to sign notes for her husband, and she made a note in her own name, not referring to her husband, either in the body of the note or in the signature, it was held, that the hus- band was not bound.* [So where a bill of exchange is drawn by an agent in his own name, it does not render his principal liable thereon, although drawn for his benefit, and containing a direc- tion to the drawee to charge the amount to the account of the prin- cipal.^] So, where A., B., and C. made a note as follows : " We, ' Bowen V. Morris, 2 Taunt. 374, 387. See Kennedy v. Gouveia, 3 Dow. & Ryl. 503 ; Hopkins ». Mehaffey, 11 Serg. & R. 129 ; Meyer ». Barker, 6 Binn. 228, 231. See Woodes v. Dennett, 9 N. H. 65; Post, §§ 275, 276. » Hopkins v. Mehaffey, 11 Serg. & R. 129 ; Post, § 273, note. ' Ante, § 147, note. ' Minard v. Reed, 7 Wend. 68. [But the contrary has recently been held in England. Lindus v. Bradwell, 5 Com. B. 683.] ' Bank of North America v. Hooper, 5 Gray, 567. Dewey, J., there said, " The consideration of the questions arising in the case of Eastern Railroad v. Benedict, 6 Gray, 561, has led to a full examination of the adjudicated cases upon the question of the right of the principal, or real party in interest, to sue in his own name on a written promise made to his agent ; and, as connected therewith, the liability of the principal to be sued and charged in damages for the breach of a contract made by his agent. " To a certain extent, we have found the law to authorize the introduction of oral evidence as to the parties in interest, and for the purpose of showing from whom the consideration moved, or for whose benefit the promise was made. The cases cited, and particularly the English cases, are very decisive in favor of the exercise of this right in cases of ordinary simple contracts, extend- ing it perhaps somewhat further than we should feel authorized to do, without modifying some of the views stated in Stackpole v. Arnold, 11 Mass. 27 ; unless 186 AGENCY. [CH. Til. the subscribers, jointly and severally, promise to pay D.,or order, for the Boston Glass Manufactory, the sum of ," and signed the note in their own names, without saying " as agents," it those remarks are to be considered as made peculiarly with reference to bills of exchange or negotiable promissory notes. While the recent English cases are found to be very strong in favor of the right to charge an unknown principal upon contracts made by his agent, upon oral proof of who is the real party, yet there will be found to be a leading distinction taken between cases of com- mercial paper in the form of bills of exchange and negotiable promissory notes, and other simple contracts — holding that no one but a party to such negotiable paper can be sued for the non-payment thereof. Byles on Bills (5th ed.), 26. Such is the doctrine of Emly w. Lye, 15 East, 7, where it was held that in the case of a bill of exchange drawn by one. only, it was not competent to charge others as parties in interest, but that the liability was confined to the party who signed the instrument. In Beckham v. Drake, 9Mees. & Wels. 92, whereupon a written contract it was held that the real party in interest might be shown by oral evidence, the court distinctly except negotiable instruments from the ap- plication of the rule, Lord Abinger saying, ' Cases of bills of exchange are quite different in principle.' — ' By the law merchant, a chose in action is passed by indorsement, and each party who receives the bill is making a contract with the parties upon the face of it, and with no other party whatever.' "The American cases will, we think, be found to maintain the same doc- trine. Pentz V. Stanton, 10 Wend. 276, is strong to this point. Our own case of Stackpole v. Arnold, 11 Mass. 27, was a direct application of this principle. That was a suit upon a negotiable note, and the defendant's name was not on the paper; 6 Gray, 565. The oral evidence offered was, however, full to the point, that the person who signed the note was in fact the agent of the defend- ant, and that the note was given for the defendant's debt. But the court held that no action could be maintained on the note against the defendant. That case has ever been recognized, certainly to the extent of its application to nego- tiable paper, as the law of Massachusetts. Bedford Commercial Ins. Co. ». Covell, 8 Met. 443 ; Taber v. Cannon, 8 Met. 460. If sound, it meets the present case, and discharges the private estate of Horace Gray from all liability on the draft. " It is urged, for the appellants, that that case must be considered as over- ruled by the late case of Huntington v. Knox, 7 Cush. 371 ; and especially that it was in conflict with the principles stated by the court in the opinion given in that case. It is true that the court do there recognize and apparently fully indorse the case of Higgins v. Senior, 8 Mees. & Wels. 834 ; and taking the remarks of the court without reference to the case to which they were applied, they might seem to be somewhat at variance with the decision in Stackpole v. Arnold. But the case of Huntington v. Knox was the case of a simple con- tract in writing, in reference to the sale of goods. The agent of the plaintiff, in making a memorandum of the contract, and giving a receipt for money paid on account of the same, had used his own name exclusively ; but his agency being fully proved by oral evidence, and the interest of the plaintiff shown as the owner of the article sold, the question was, whether the principal could §§ 154, 154 a.] AUTHORITY, HOW EXECUTED. 187 was held, that they were personally bound, and not the corpora- tion.^ So where A. (an agent) made a promise in the following terms, " I undertake on behalf of Messrs. E. & Co., to pay," it was held on the face of the paper to be the promise of A. as agent of the principals, and not as himself a principal ; and that A. was not liable on the .promise personally, unless it was proved that he had no authority to make the contract, or that he exceeded the authority.^ [§ 154 a. So, where a written contract, for the building of a church edifice was entered into by the defendants as the " com- mittee " of a religious society, and was subscribed by them as such, the intent being clearly to bind the corporation as principal and not the defendants as agents, and the name of the principal maintain an action in his own name ; and the court decided that he could, citing the case of Higgins v. Senior as a direct authority, as it was, for the case of Huntington v. Knox ; for, like that, it was an action upon a contract not nego- tiable. The adoption of the language of the court in the case of Higgins v. Senior, as sound law, was certainly warranted for the purposes to which it was applied ; but it ought not to be held as going further, much less as overruling Stackpole v. Arnold, without any reference to it, or suggestion of that kind. It seems to us that the two cases may well stand together, applying the law, as stated in each, to its own peculiar facts. " We then recur to the contract in the present case, and find it to be a nego- tiable draft, drawn by Joseph Barrell, in his own name, without any indication that he is not the principal, and payable to a third person, who indorsed it to the appellants. There is nothing in the margin or the heading of the draft, that indicates any other principal than Barrell. There is no single circumstance on the face of the paper, which in any way connects Horace Gray or the Pem- broke Iron Works with the draft, unless it be the direction to the drawees, to ' charge the same to the account of the Pembroke Iron Works.' It has been argued that this direction indicates that the Pembroke Iron Works are the real drawers. But no such inference can properly be drawn from that circumstance. Bills are often drawn by parties on funds of others distinct from the drawer, but with whom arrangements have been made to discharge such drafts."] [*As to bills of exchange, it is said that the agent must either sign the name of the principal to the bill, or it must appear on the face of the bill itself, in some way, that it was drawn for him or the principal will not be bound. Anderton v. Shoup, 17 Ohio, N. s. 128.] ' Bradlee v. The Boston Glass Manufactory, 16 Pick. 347. This case seems distinguishable from that of Rice v. Gove, 22 Pick. 168, principally in the cir- cumstance, that the signatures of A., B., C. did not purport to be as agents. See also Savage v. Rix, 9 N. H. 263 ; Trask v. Roberts, 1 B. Monr. 201, as to the effect of the words jointly and severally. Post, §§ 275, 276 ; Ante, 147, and note. ^ Dowman v. Jones, 7 Queen's Bench, 103. 188 AGENCY. [CH. VII. and the fact of the agency, as well as the want of individual in- terest by the defendants in the subject-matter of the contract, all appeared on the face of the contract ; it was held, that these facts might be pleaded in bar of an action upon such contract against the members of the committee individually.-'] § 155. The same principles of construction will apply to cases where bills are drawn, or accepted, or indorsed by agents. If, from the nature and terms of the instrument, it clearly appears not only that the party is an agent, but that he means to bind his principal, and to act for him, and not to draw, accept, or indorse the bill on his own account, that construction will be adopted, however inartificial may be the language, in furtherance of the actual intention of the instrument. But, if the terms of. the instrument are not thus explicit, although it may appear that the party is an agent, he will be deemed to have contracted in his personal capacity .^ And there is no difference on this point, whether the instrument be a deed or an unsealed contract.^ Thus, if an agent should execute a deed in his own name, and should thereby, " for and on behalf" of his principal, covenant, &c. ; he would be personally bound thereby, and not his princi- pal.* So, if an unsealed instrument should purport to be a mem- ' Stanton v. Camp, 4 Barbour, Sup. Ct. (N. Y.) 274. " Paley on Agency, by Lloyd, ch. 6, § 1, pp. 378-402; Stackpole v. Ar- nold, 11 Mass. 27, 29; Bedford Com. Ins. Co. v. Covel, 8 Met. 442; Lead- bitter V. Farrow, 5 M. & Selw. 345 ; Kennedy v. Gouveia, 3 Dowl. & Ryl. 503 ; Stevens v. Hill, 6 Esp. 247 ; 2 Kent, Comm. Leot. 41, pp. 630, 631 (4th ed.) ; Tippets v. Walker, 4 Mass. 595 ; White v. Skinner, 13 John. 307 ; Ante, § 154 ; Post, §§ 269, 275, 276 ; Dusenbury v. Ellis, 3 John. Gas. 70 ; Hastings V. Loveriug, 2 Pick. 214, 221 ; Mills v. Hunt, 20 Wend. 431 ; Newhall i). Dun- lap, 2 Shepley, 280; Higgins v. Senior, 8 Mees. & Wels. 834, 844; Aikins. Bedford, 17 Martin, 502 ; Pentz v. Stanton, 10 Wend. 271 ; Eaton ». Bell, 5 B. & Aid. 34. A similar doctrine seems to pervade the Scottish law, and in its application to particular cases, has given rise to no small diversity of opin- ion. See Thompson on Bills of Exchange, pp. 218, 219 (2d ed.), 1836 ; Post, § 275 a. ^ Burrell v. Jones, 3 B. &. Aid. 47 ; Iveson v. Conington, 1 B. & Cressw. 160; Post, §§ 269, 273-276, 290; Ante, § 154; Pentz v. Stanton, 10 Wend. 270, 271. * Appleton V. Binks, 5 East, 148; Cayhill v. Fitzgerald, 1 Wilson, 28, 58; Cass V. Ruddle, 2 Vern. 280; Norton «j. Herron, Ryan & Mood. 229; s. o. 1 Car. & Payne, 648 ; Tanner v. Christian, 4 El. & Bl. 591, 29 Eng. Law and Eq. 103 ; Kennedy v. Gouveia, 3 Dowl. & Kyi. 503 ; Duvall v. Craig, 2 Wheat. 45; 3 Chitty on Com. & Manuf. 211, 212; 2 Kent, Comm. Lect. 41, pp. 361, §§ 154:0-156.] AUTHORITY, HOW EXECUTED. 189 orandum of agreement between A. B. on behalf of C. D., of the one part, and B. P. of the other part, to exec\ite a lease of cer- tain premises of the principal, it would be held to be the contract of the agent, and binding on him personally.^ A fortiori, an agent will be held to be personally bound, if the name or charac- ter of the principal should not appear on the instrument ; or, if it should appear that no other person than himself could be legally bound by it, although he should sign his name thereto as agent, or as acting in an official capacity .^ § 156. We shall have occasion, hereafter, to consider some- what more at large the cases in which an agent incurs a per- sonal liability, on contracts made by himself ; ^ and therefore shall content ourselves, in this place, with a few other illustra- tions, founded upon written instruments, to justify the foregoing statements. Thus, if a broker should sell goods, and draw upon the buyer for the amount, in his own name, in favor of his prin- cipal, if the bill should be dishonored, he would be personally liable, unless some special words were used in the bill to prevent it ; and this liability would not only extend to third persons, but even to his principal, although he was known to be a mere agent. For, in such a case, the bill imports, on its face, a per- sonal liability, as drawer, in favor of all persons, who are, or be- come parties to the bill : and there is nothing in the character of an agent, which excludes such personal liability, if he chooses voluntarily to incur it in favor of his principal, as well as in favor 362 (4th ed.) ; Post, § 269. \_* It seems, that the signature to a deed by an attorney in his own name, may in equity bind his principal, known as such to all the parties at the time, although it is not binding at law. Robbing v. But- ler, 24 111. 387. In Roberts v. Button, 14 Vt. 195, it was held, that a con- tract executed by an agent on behalf of his principal must, in order to bind the principal, appear to have been executed in the name of the principal, but that the form of subscription, whether A. B. for C. D. or C. D. for A. B., was not material. The general subject is there considerably discussed.] ' Norton v. Herron, 1 Car. & Payne, 648 ; s. c. 1 Ryan & Mood. 229 ; Tanner v. Christian, 4 El. & Bl. 591, 29 Eng. Law and Eq. 103 ; Cooke v. Wilson, 38 Id. 361 ; 1 J.' Scott, n. s. 153 ; Hopkins v. Mehaffey, 11 Serg. & R. 139 ; Post, §§ 269, 270, 274, note. ^ Norton v. Herron, 1 Car. & Payne, 648 ; Paley on Agency, by Lloyd, 886-388; Bayley on Bills, by Phillips and Sewall, from 6th London ed., ch. 2, § 7, pp. 72, 73, and notes ; Pentz v. Stanton, 10 Wend. 271 ; Post, §§ 280-287. ' Post, 260, 270, 272-276 ; Ante, §§ 1S4, 155. 190 AGENCY. [CH. VII. of third persons.^ So, if a known agent should draw a bill on a third person, in favor of the payee, and direct the drawee to place the amount to the debit of his principal, lie would be per- sonally liable on the bill to the payee, unless he use other words to exclude it.^ § 157. Precisely the same personal liability will attach to an agent, who, in his own name, signs a note as maker, or a bill as drawer, or accepts a bill, or indorses a bill or note generally ; for in such a case, although he is a known agent, the making, or accepting, or indorsing of the instrument, is treated as an admis- sion that it is his personal act, not only in respect to third per- sons, but also in respect to his principal.^ [In a recent case before the Privy Council, the facts were that B., acting as agent in' Malta for C, for the purpose of buying and reniitting to C, in England, bills on England, on account of money received by B. in Malta. In the course of such agency, B. purchased bills in Malta and indorsed them to C. without any reservation in the indorsement. It was held, that, in the absence of any special cir- cumstances showing that any liability was intended by B., he was not liable to 0. upon the dishonor of the bills, by the general principles of the law merchant.*] 1 Bayley on Bills (5th ed.), ch. 2, § 7, p. 68; Post, § 269; Le Fevre w. Lloyd, 6 Taunt. 749 ; Mayhew v. Prince, 11 Mass. 64 ; Stackpole v. Arnold, 11 Mass. 27, 29 ; Thompson on Bills of Exchange, pp. 218, 227, 228 (2d ed. 1836) ; Post, § 269. But see Sharp v. Emmett, 6 Whart. 288. 2 Leadbitter v. Farrow, 5 M. & Selw. 345 ; Bayley on Bills (5th ed.) ; ch. 2, § 7, n. 46 ; Eaton v. Bell, 5 B. & Aid. 34 ; Post, § 269. ^ Stackpole v. Arnold, 11 Mass. 27, 29 ; Goupy v. Harden, 7 Taunt. 169 ; Leadbitter v. Farrow, 5 M. & Selw. 346 ; Maber v. Massias, 2 W. Bl. 1072 ; Le Fevre v. Lloyd, 5 Taunt. 749 ; Heuback v. MoUman, 2 Duer, 260 ; Stevens V. Hill, 6 Esp. 247. But see Kidson v. Dilworth, 5 Price, 564. In respect to the principal, the doctrine may, in many cases, require to be qualified ; for if as between him and the agent, there was no intention to create a personal lia- bility, it will not arise ; Castrique v. Buttigieg, 10 E. F. Moore, 94, before the privy council, where it was said that in Goupy ». Harden, 7 Taunt. 169, there is an intention to make the agent liable. See Miles v. O'Hara, 1 Serg. & R. 32; Kidson o. Dilworth, 6 Price, 564; Post, § 269; Sharp v. Emmett, 5 Whart. 288. In this last case it was held, that if an agent remits a bill in payment, for goods sold on account of his principal, and indorses the bill, he does not thereby become responsible thereon to his principal, if he received no consideration for guaranteeing the bill, and does not expressly undertake to do so. * Castrique v. Buttigieg, 10 E. F. Moore, P. C. 94. §§ 156-159.] AUTHORITY, HOW EXECUTED. 191 § 158. Upon the same ground, where A, the consignee and agent of a ship, entered into an agreement of charter-party with the master of the ship ; and the agreement stated, that it was agreed between the master, of the one part, and A., consignee and agent of the ship and cargo, on behalf of B., the principal, on the other part; and A. signed the agreement in his own name, and not as agent ; it was held, that the agent A. was personally bound by the instrument ; for the agent and master only were parties to it.^ So, where an agent, by a writing, acknowledged himself to have received goods for his principal, and by the same writing, bound himself to pay for the same at a day certain, he was held personally liable.^ § 159. The doctrine has been carried constructively a step far- ther ; for it has been held, that a bill drawn by the principal upon an agent, with the description of his office or agency an- nexed, and directed to be placed to the account of the principal, will, if he accepts it generally, bind him personally ; and the description will be treated as a mere designation of the person, and not as a qualification of his personal liability.^ [So, where a bill of exchange, purporting to be " for value received in ma- chinery supplied to the adventurers in Hayter and Holne Moore Mines," was directed to the defendant as an individual, and he wrote across the bill the words " Accepted for the Company, W. C, Purser," he was held personally liable as acceptor, although ' Kennedy v. Gouveia, 3 Dow. & Eyl. 603 ; Paley on Agency, by Lloyd, 381, 382 ; Meyer v. Barker, 6 Binn. 228, 234. See Thompson on Bills of Exchange, 218, 227, 228 (2d ed.), 1836. « Dyer, 230 6 ; Post, §§ 269-273: ' Thomas v. Bishop, 2 Str. 955 ; s. c. Cas. Temp. Hard. 1 ; Bayley on Bills (5th ed.), eh. 2, § 7, note 48; Paley on Agency, by Lloyd, ch. 6, § 1, pp. 378, 379. This case seems to press the doctrine to the utmost limit of the law, if, indeed, upon principle, it is sustainable at all. Post, § 269, note. In Mott V. Hicks, 1 Cowen, 513, where the principal made a note payable to an agent (in his, the agent's, own name), or order, and the payee indorsed the note "A. B., agent ; " it was held that the indorsee cotJd not recover person- ally against A. B. on this indorsement, he well knowing all the facts, and that the instrument was merely to give currency to the note. See also Rheinhold v. Dertzell, 1 Yeates, 39 ; Miles v. O'Hara, 1 Serg. & R. 32 ; Kidson v. Dil- worth, 6 Price, 564, 572, 573. See also Bayley on Bills, 2d Amer. from the 6th English ed. by Phillips & Sewall, in notes to p. 73 (ed. 1836). See Thomp- son on Bills, pp. 218, 227, 228 (2d ed. 1836). 192 . AGENCY. [CH. VII. he was not a member of the company, and had authority as purser to accept the bill.-^ § 160. As, on the one hand, we have seen, that agents cannot, ordinarily, bind their principals by a written contract under seal, executed in the agent's own name,^ and thus give a title to an action against them ; so, on the other hand, the principal cannot, ordinarily, avail himself of such a contract under seal, and sue the other contracting party thereon ; for it is treated as a con- tract merely between the parties named in it, although one is known to be acting in the character of an agent.^ But even in cases of contracts so made under seal by an agent, there are exceptions to the rule ; and it does not universally follow, that, [' Mare v. Charles, 34 Eng. Law and Eq. 138. Lord Campbell said, " I am of opinion that the defendant is personally liable as acceptor of these bills, and I come to this conclusion on principle and authority. The bills are drawn on him as an individual. In the body of them, to be sure, the consideration is stated to be for " machinery supplied the adventurers in Hayter and Heine Moore Mines." The defendant accepts the bills in these words : " Accepted for the companies. William Charles, purser." Now, I think that this will bear the interpretation that the defendant makes himself personally liable as ac- ceptor ; and we ought to put such a construction on the words as will not make the acceptance void, ut res magis valeat quam pereat. The defendant must be supposed to have known that the bills would be entirely void unless he made himself personally liable on them. There is nothing like a disclaimer of per- sonal liability, as might have been the case if the words "per proc." had been used. It seems to me to make no difference that the consideration is for goods supplied to the company. This only shows that the company are the parties ultimately indebted, and that as between the defendant and them there was an arrangement that he was to be repaid what he might have paid. In that sense he accepts for the company. This case falls within the principle of Thomas v. Bishop, which may have been doubted on the other side of the Atlantic, but has always been looked upon as good law here. It is not necessary to say whether we agree with aU the observations in NichoUs v. Diamond. The ac- ceptance was there " per proc," which might have amounted to a disclaimer of personal liability, if the defendant had not been a member of the company. We need not decide whether, if such words had been used here, the defendant would have been liable." See also NiohoUs v. Diamond, 9 Exch. 154 ; 24 Eng. Law and Eq. 403 ; Owen v. Van Uster, 1 Eng. Law and Eq. 396 ; 10 Com. B. 318.] " Ante, §§ 147-154. 3 United States v. Parmele, 1 Paine, Cir. 252 ; Clarke's Executors v. Wil- son, 8 Wash. Cir. 560 ; New England Mar. Ins. Co. v. De Wolf, 8 Pick. fi6, 61; Andrews v. Estes, 2 Fairf. 267; Clark v. Courtney, 6 Peters, 319, 349, 350 ; Ante, §§ 147-154. §§ 159-160 a.] AUTHORITY, HOW EXECUTED. 193 although no action lies by, or against, the principal thereon, therefore no obligations are created thereby between the prin- cipal and the other contracting party ; for in many cases, such a contract will be collaterally binding on the principal, and create an implied obligation on his part to fulfil its stipulations, and entitle him also to corresponding rights against the other con- tracting party, although the direct remedy for a breach of the original contract may be, or must be, exclusively sought by, or against the immediate parties thereto.^ The learned author of a very valuable work on shipping, speaking on this subject, says, " I apprehend, the owners of the ship may be made responsible, either by a special action on the case, or by a suit in equity for the faithful performance of the stipulations of a charter-party, made by the master under the circumstances before mentioned ; " ^ that is, in cases, where the owners have authorized the master to enter in the charter-party. If this be so, there can, be no rea- son why the owners should not reciprocally have an action on the case, or a bill in equity, to compel the charterer to fulfil his obligations, under the charter-party.^ § 160 a. In respect to written contracts, not under seal, a far more liberal doctrine has been established. It is very clear from the authorities, that it is not indispensable, in order to bind the principal, that such a contract should be executed in the name, ' Post, §§ 161, 162, note, 278, 422 ; Abbott on Shipp. P. 2, ch. 2, §§ 6-8, (ed. 1829) ; Id. P. 3, ch. 1, § 2 ; Id. P. 4, ch. 1, § 6 (6th ed. by Mr. Sergt. Shee, 1840). * Abbott on Shipp. P. 2, ch. 2, § 5. ^ Post, §§ 422, 460, note ; 1 Bell, Comm. B. 3, P. 1, ch. 4, § 1, .pp. 506, 507 (5th ed.) ; Id. § 2, pp. 538-547 ; Dubois v. Delaware & Hudson Canal Co. 4 Wend. 285. But see Schaok v. Anthony, 1 M. & Selw. 573. This case seems at variance with the doctrine maintained in Abbott on Shipping, and the case of Randall «. Van Vechten, 19 John. 60, and that of Dubois v. Delaware & Hudson Canal Co. 4 Wend. 285. It seems to me difficult to support the doc- trine, if the principal is not a party to the sealed instrument, executed by the agent, and yet is bound by its obligations, that an action of assumpsit is not maintainable against him for a breach of his implied promise to perform the ob- ligations thereof; and, e converse, that he may not maintain a like suit against the other contracting party for any breach of the implied obligations on his part. Th^ decision in Schack v. Anthony, 1 M. & Selw. 573, is but a dry declaration of the rule, promulgated by the court without any reasoning in its support, and founded on no antecedent authorities. See also Moorson v. Kymar, 2 M. & Selw. 303; Post, §§ 273, 277, 278, 294, 422, 460 and note!- See also Hall v. Bainbridge, 1 Mann. & Gr. 42. AOENCY. 13 194 AGENCY. [CH. TH. and as the act, of the principal. It will be sufficient, if upon the whole instrument, it can be gathered, from the terms thereof, that the party described himself and acts as agent, and intends thereby to bind the principal, and not to bind himself.^ Indeed, the doctrine, maintained in the more recent authorities, is of a far more comprehensive extent. It is, that if the agent possesses due authority to make a written contract, not under seal, and he makes it in his own name, whether he describes himself to be an agent, or not, or whether the principal be known, or unknown, he, the agent, will be liable to be sued, and be entitled to sue thereon, and his principal also will be liable to be sued,^ and be entitled to sue thereon in all cases,^ unless from the attendant circumstances, it is clearly manifested, that an exclusive credit is given to the agent, and it is intended by both parties, that no resort shall in any event be had by or against the principal upon it.* The doctrine thus asserted, has this title to commendation ' Ante, § 147 ; Staokpole v. Arnold, 11 Mass. 27, 29. See also other cases, where the doctrine is laid down in this qualified manner, cited ante, § 147, note ; Rice V. Gove, 22 Pick. 158 ; Daniels v. Burnham, 2 Miller, La. 244 ; Minard V. Reed, 7 Wend. 68 ; Pentz v. Stanton, 10 Wend. 271 ; Spencer v. Field, 10 Wend. 87. ' See Lindus v. Bradwell, 5 Com. B. 583. [* " The doctrine is well settled in England that, when a written contract not under seal is made by or with an agent, the principal, although undisclosed, may sue or be sued upon it except in the case of commercial paper.'' Hoar, J., Lerned v. Johns, 9 AUen, 421; York Co. Bank v. Stein, 24 Md. 463.] ' See Phelps v. Prothero, 32 Eng. Law and Eq. 474 ; Huntington u. Knox, 7 Cush. 874 ; Fuller v. Hooper, 3 Gray, 334. [ * See also Bank of British North America v. Hooper, 5 Gray, 667 ; and Slawson v. Loring, 5 Allen, 340; Prather v. Ross, 17 Ind. 495 ; Kenyon v. Williams, 19 Ind. 44.] * See Dupont v. Mount Pleasant Ferry Co. 9 Richardson, 268. This more comprehensive doctrine is very fully stated and expounded in Higgins v. Senior, 8 Mees. & Wels. 834, 846, which will be cited more at large hereafter (sect. 270). It is there said, " There is no doubt, that where such an agreement is made, 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 contract, so as to give the benefit of the contract on the one hand to, and charge with lia- bility on the other, the unnamed principals ; and this, whether the agreement be or be not required to be in writing by the statute of frauds. And this evi- dence in no way contradicts the written agreement. It does not deny that it is binding on those, whom, on the face of it, it purports to bind ; but shows, that it also binds another, by reason that the act of the agent, in signing the agree- ment, in pursuance of his authority, is in law the act of the principal." See Ford V. WUliams, 21 How. 288 ; Trueman v. Loder, 11 Adolph. & Ellis, 689 ; §§ 160a, 161.] AUTHORITY, HOW EXECUTED. 195 and support, that it not only furnishes a sound rule for the expo- sition of contracts, but that it proceeds upon a principle of reci- procity, and gives to the other contracting party, the same rights and remedies, against the agent and principal, which they pos- sess against him. § 161. Admitting then, the rule, usually laid down, to be gen- erally true, that in order to bind the principal and to make him personally liable upon a written contract made by his agent, or to enable the principal to sue or to be sued thereon, it should be executed in his own name, and appear to be his own contract ; yet, it must be equally admitted, that there are many qualificar tions of it and exceptions to it, as well established as the rule itself.^ A few cases may be sufficient in this place (as the sub- ject will necessarily occur in other connections hereafter])^ to illustrate, not only the qualifications and exceptions to the gen- eral rule as to sealed instruments, but also the more liberal doc- trine applicable to unsealed instruments. Thus, for example, a written contract made by a factor in his own name, for the pur- chase or sale of goods for his principal, will bind the principal, and he may sue and be sued thereon, exactly as if he were named in it ; for it is treated as the contract of the principal, as well as that of the agent.^ [So on a written order to deliver Post, §§ 269, 270, 272, 273-280, 396-400 ; Nelson v. Powell, 3 Doug. 410 ; Thomson v. Davenport, 9 B. & Cressw. 78; Cothay v. Fennell, 10 B. & Cressw. 671 ; Garrett v. Handley, 4 B. & Cressw. 664 ; Batemen v. Phillips, 15 East, 272; Higgins v. Senior, 8 Mees. & Wels. 834, 844; Jones v. Little- dale, 6 Adolph. & Ellis, 486 ; Beebee v. Roberts, 12 Wend. 413 ; Taintor v. Prendergast, 3 Hill, 72, 73 ; Inhabitants of Garland v. Reynolds, 2 Applet. 45 ; Taunton & South Boston Turnpike v. Whiting, 10 Mass. 827; Conuneroial Banku. French, 21 Pick. 486, 491; Fisher «. Ellis, 3 Pick. 322; Fairfield v. Adams, 16 Pick. 381 ; New England Mar. Ins. Co. ». De Wolf, 8 Pick. 56, 61, 62. See also 2 Kent, Comm. Lect. 41, pp. 631, 632 (4th ed.), and note (a); Hopkins v. Lacouture, 4 Miller, La. 66 ; Williams v. Winchester, 19 Martin, 24; Hyde v. Wolf, 4 Miller, La. 236; Muldon v. Whitlock, 1 Cowen, 290; Porters. Talcott, 1 Cowen, 359; Collins o. Butts, 10 Wend. 399; Sullivan v. Campbell, 2 Hall, 271; American Jurist for January, 1830, vol. 3, pp. 78-80; Edmond v. Caldwell, 3 Shepley, 340; Smith on Merc. Law, pp. 134-136 (3d ed. 1843); Hicks v. Whitmore, 12 Wend. 548; Hays v. Lynn, 7 Watts, 624; Small V. Attwood, 1 Younge, 407, 457. • Post, 392-402. = Post, 269, 270, 275, 276, 395-400. ^ Ante, § 110 ; Paley on Agency, by Lloyd, 207, 208 ; 3 Chitty on Com. & Manuf. 193, 210, 211; 1 Bell, Comm. §§ 212, 385, 386, 408, 409, 416 (4th 196 AGENCY. [CH. Til. property to " D. A. N., president of the Eastern Eailroad Com- pany," accepted by the drawee, the company may maintain an action in their own name, the consideration moving from them.i] ed.) ; Id. 490, 491, 494, 637, 558 (5th ed.) ; 2 Kent, Comm. Lect. 41, pp. 622, 624, 630 (4th ed.) ; 1 Liverra. on Agency, ch. 5, § 1, pp. 214, 217 ; Atkyns v. Amber, 2 Esp. 393 ; Paley on Agency, by Lloyd, ch. 2, § 2, p. Ill, note (3), ch. 4, § 1, p. 324; Snee v. Prescott, 1 Atk. 248; Morris v. Cleasby, 4 M. & Selw. 566 ; Allen v. Ayers, 3 Pick. 298 ; Taintor v. Prendergast, 3 Hill, 72 ; Commercial Bank v. French, 21 Pick. 486 ; Higgins v. Senior, 8 Mees. (ScWels. 844 ; Post, §§ 269-275, 392-402. [' Eastern Railroad v. Benedict, 5 Gray, 561. Dewey, J., there said, " The only ground of objection to maintaining the present action is, that the acceptance of this order by the defendants created a liability on the same solely in favor of D. A. Neale, and one that could be enforced only by an action in his name. This is said to result from the nature of the draft accepted by the defendants. It is said that the name of the plaintiffs does not appear on the face of the paper, as the payees thereof; and that no oral evidence can be properly admit- ted to show that they were the real party in interest, and that D. A. Neale was merely their agent, contracting in their behalf. " To a certain extent, and under some circumstances, the adjudicated cases seem to furnish abundant anthority to the point, that where a contract is made with an agent, the principal may sue thereon in his own name. Thus in Skin- ner V. Stocks, 4 B. & Aid. 437, it was held that an action might be maintained either in the name of the person with whom the contract was made, or in the name of the party really in interest. In Sims v. Bond, 5 B. & Aldolph. 393, and 2 Nev. & Man. 614, Lord Chief Justice Denman says, ' 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 ; the defendant, in the latter case, being entitled to be placed in the same situation, at the time of the disclosure of the real principal, as if the agent had been the contracting party.' In Paley on Agency (3d Am. ed.), 324, we find the same principle stated, that the principal may sue in his own name to enforce rights acquired by his agent in a course of dealing in his behalf. Angell & Ames on Corp. § 316, is to the same effect. " We may assume it to be quite clear and well supported by authority, that in the case of oral contracts the principal may sue in his own name upon a contract made with his agent. It is equally well settled that the same rule applies to cases of sales by written bills, or other memoranda made by the agent, using his own name, and disclosing no principal. Huntington v. Knox, 7 Cush. 371 ; Edwards v. Golding, 20 Vt. 30; Hubbert v. Borden, 6 Whart. 79 ; Salmon Falls Manuf. Co. v. Goddard, 14 How. 454, 456. In Wilson v. Hart, 7 Taunt. 260, Park, J., says, 'It is the constant course to show by parol evidence whether a contracting party is agent or principal.' In Potter v. Yale College, 8 Conn. 60, Chief Justice Hosmer says, 'I admit the principle, that where an agreement is made with an agent, for the sole and exclusive benefit of his principal, the principal has the legal interest.' " In the case of Beckham v. Drake, 9 Mees. & A\''els.79, this subject was much § 161.] AUTHORITY, HOW EXECUTED. 197 So, 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 ; for it is treated properly as a con- considered in the very full arguments of the counsel, as weU as in the several opinions given by the members of the court ; and the result was, that it was held, that the parties really contracting are the parties to sue in a court of justice, although the contract be in the name of another, and that this rule was to be applied, not only to oral contracts, but to cases of ordinary mercantile contracts in writing. Parke, B., says, 'The case of bills of exchange is an exception, which stands upon the law merchant ; and promissory notes another, for they are placed on the same footing by the statute of Anne.' 9 Mees. & Wels. 96. "It is unnecessary, in the present case, to decide whether, upon a mere naked written promise, made with one person, without any reference in the instrument to an agency, the action upon proof of such agency in fact, might be maintained in the name of the principal. We are aware that it is contended that the promise is directly and exclusively a promise to D. A. Neale, and that the addition of ' president of the Eastern Railroad Co.' must be rejected as merely descriptio personce. But this position, we think, is not maintainable. This written instrument may properly be held to disclose an agency, and to indicate enough to authorize an action in behalf of the railroad company, upon actual proof that the bargain was made on their account. " The case of Commercial Bank v. French, 21 Pick. 486, strongly illustrates and sustains this view. That was an action on a promise to pay ' the cashier of the Commercial Bank ; ' and the objection taken was, that the action could only be maintained in the name of the cashier. But it was held, that such descrip- tion sufficiently indicated the contract to be one in which the bank was the party in interest, and authorized to maintain the action in its own name. It is true that the promise was there made ' to the cashier,' and not to 'A. B., cashier of the Commercial Bank;' and some importance was given, in the opinion, to that circumstance ; but the principle upon which the opinion was based would equally have applied to the case of a promise to 'A. B., cashier,' &c. It was said by the court, ' The principle is, that the promise must be understood ac- cording to the intention of the parties. If in truth it be an undertaking to the corporation, whether by a right or a wrong name, whether the name of the corporation or some of its officers be used, it should be declared on and treated as a promise to the corporation.' 21 Pick. 490, 491. "In Pigott V. Thompson, 3 Bos. & Pull. 141, where commissioners for draining certain lands were authorized to receive tolls, and the defendant had agreed in writing to pay ' to the treasurer of the commissioners ' certain tolls, it was held, that the action was properly brought in the name of the commis- sioners. " In the case of Trustees of Ministerial & School Fund in Levant v. Parks, But see Finney v. Bedford Commercial Ins. Co. 8 Met. 348. 198 AGENCY. [CH. Til. tract, to which the principal as well as the agent is a party.^ So, if the master of a ship, by a written contract in his own name, should contract for or order repairs, the owner may be 1 Fairf. 441, it was held, that a note of hand, made payable to an individual as treasurer of a corporation, might properly be sued in the name of the cor- poration; and in State v. Boies, 2 Fairf. 474, it was held, the action was properly brought in the name of the State of Maine upon a note given ' to James Irish, land-agent of Maine.' In the case of Garland ». Reynolds, 20 Maine, 46, which was an action brought upon a note given ' to Enoch Hunting- ton, treasurer of the committee of the surplus revenue,' it was held, that the action might be maintained in the name of the town for which the committee were acting. " In Vermont Central Railroad v. Clayes, 21 Vt. 30, an action upon a note of hand, payable to ' the Commissioners of the Vermont Central Railroad Company,' the consideration of which was a subscription for shares in that company, was maintained in the name of the company, to whom the note had been delivered by the commissioners. And in Rutland & Burlington Railroad V. Cole, 24 Vt. 33, upon a note of hand payable ' to the order of Samuel Henshaw, treasurer,' &c., it appearing by other evidence that Henshaw was treasurer of the corporation, and that the consideration of the promise pro- ceeded from the corporation, the action was held well brought by them. " The defendants have referred to the case of Moss v. Livingston, 4 Comst. 208, as adverse to the maintenance of the present action. That was an action brought by an indorsee of a bill of exchange accepted by ' John R. Livingston, ' Ante, §§ 109, 111 ; Post, §§ 272, 392-402 ; 3 Chitty on Com. & Manuf. 201 ; Wolff ». Horncastle, 1 Bos. & Pull. 323 ; Lucena v. Crawford, 3 Bos. & Pull. 98 ; De Vignier v. Swanson, 1 Bos. & Pull. 346, n. ; Bell v. Gilson, 1 Bos. & Pull. 845 ; 2 Kent, Comm. Lect. 41, pp. 630, 631 (4th ed.) ; Paley on Agency, by Lloyd, 21, 22; Marsh, on Ins. B. 1, ch. 8, § 3, pp. 311, 812 (2d ed.) ; 3 Chitty on Com. & Manuf. ch. 3, p. 212. In the case of the United States V. Parmele, 1 Paine's Cir. 262, Mr. Justice Livingston admitted, that the principal might sue, in case of a written contract of his factor. But, arguendo, he expressed a doubt, whether he could sue on the instrument itself, as one to which he was a party. His language was : " But the court does not know, that such suit (by the principal) was ever sustained on the contract itself, when one in writing took place between the factor and vendor, in which the name of the principal did not appear. What use might be made of such a paper as evidence, is one thing. But, that a suit can be brought upon it in the name of any but a party to it, has not been shown ; nor is it believed that such is the law." The doctrine, however, which is here doubted by the learned judge, is now very firmly established, as may be abundantly seen in the au- thorities cited, ante, § 160 a, note, and post, § 270, note, § 278. And see Huntington v. Knox, 7 Gush. 875; McDonald v. Bear River Co. 13 Cal. 235. § 161.J AUTHORITY, HOW EXECUTED. 199 sued therefor, as well as the master ; and the contract will be treated as the several contract of each.^ So, a bottomry bond, properly entered into by the master of the ship, in his own name, will bind the owner ; and a charter-party, made by the master president of Rosendale Manufacturing Company,' and he was held personally- liable. Many cases will be found of that character ; and in reference to nego- tiable instruments, the doctrine seems to be maintained by numerous adjudica- tions, that, in such cases, for the purpose of charging the party who has thus signed his own name, the addition of 'treasurer' may be rejected as mere descriptio personal. That case is not, however, a parallel one with the present ; as here no third party is sought to be charged, and the only inquiry is, whether enough appears upon the face of the instrument to authorize the real party in interest, upon fully showing that interest, to sue in his own name. " That the corporation may be held liable upon a note signed by ' G. L. Chandler, treasurer of the Dorchester Turnpike Corporation,' upon its appear- ing that it was the real contract of the corporation, was the doctrine of our own case of Mann ». Chandler, 9 Mass. 836 ; The cases of Gilmore u. Pope, 5 Mass. 491, and Taunton & South Boston Turnpike v. Whiting, 10 Mass. 327, in both of which this court held that an action might be maintained by a corpo- ration upon a written contract promising to pay their agent, are more directly in point ; as they are cases where the question arose upon the right of the plain- tiffs to sue upon the contract, which is the present case. " More reliance was placed by the defendants upon the case of Stackpole v. Arnold, 11 Mass. 27. The notes, the subject of that action, were signed by Zebedee Cook, some by his own name, and one by the name of Cook & Foster, a house in which he was a partner ; and contained on their face no allusion to John Arnold, the defendant, as a principal, nor any thing indicating an agency in his behalf. They were negotiable notes, as appears by a recur- rence to the files in that case, although not so stated in the printed report. It was an attempt to charge a third party whose name did not appear in the instrument. The question was as to the competency of oral evidence to show that the notes were given for premiums on policies of insurance, procured at the request and for the use of the defendant, on property belonging to him ; and that the party signing the notes acted as agent of the defendant merely. The objection taken, and sustained by the court was, that oral testimony could not be received to control and vary the written contract, so as to make them the notes of Arnold. The rule of law was stated to be that ' no person, in making a contract, is considered to be the agent of another, unless he stipulates for his principal by name, stating his agency in the instrument which he signs.' It was further stated that no person could be charged as the maker of any •written contract signed by another, unless the signer professed to act by pro- curation or authority, and stated the name of the principal on whose behalf he ' Abbott on Shipp. P. 2, ch. 3, § 1-3 (ed. 1829) ; Ante, § 116 ; Post, § 294 ; James v. Bixby, 11 Mass. 36, 37 ; Ingersoll v. Van Bokkelin, 7 Cowen, 670. 200 AGENCY, [CH. VII. in his own name, or a bill of lading signed in his own name, in the usual course of the employment of the ship, will bind the owner.^ It is true, that from a technical principle of the com- mon law, the owner cannot be sued directly on a bottomry bond or a charter-party executed by the master under seal ; because it is not the deed of the owner.^ But the owner is, nevertheless, bound by it ; and all the obligations and covenants contained in it are binding on him, although the form of the remedy against him may be different from what it is against the master.^ It is not improbable that this liability of the principal was suggested by, if not derived from, the edicts of the Roman praetor, respect- ing the exercitorial action, and institorial action, which we have already had occasion to consider.* made his signature, 11 Mass 29. This last position must be taken with some qualification. " But the doctrine of Stackpole v. Arnold is not to be applied to this case, for two reasons : 1. Because that was a case of a naked signature of the name of the party signing, without any, even the slightest, indication that it was made in behalf of another person. 2. It was a negotiable promissory note, as to which a distinction prevails in the introduction of oral evidence to show a party in interest whose name is not disclosed on the face of the note. We have no reason to suppose that the court, in the opinion given in that case, intended to overrule their own previous decisions in the cases of Gilmore v. Pope, and Taunton & South Boston Turnpike v. Whiting, above referred to. " Looking at the present case in reference to the weight of judicial author- ity, and fully conceding that there has not been an entire uniformity of the authorities as to the point now in issue, we have come to the opinion that, in a case like the present, of an instrument not negotiable, given in the form in which this is, the plaintiffs, the real parties in interest, may maintain an action thereon in their own name."] Lerned v. Johns, 9 Allen, 419. > Abbott on Shipp. P. 2, ch. 2, §§ 1-3, 6-8 (ed. 1829) ; Ante, §§ 116- 119 ; 3 Kent, Coram. Lect. 46, pp. 161-163 (4th ed.) : 1 Bell, Coram. § 446- 466 (4th ed.) ; 1 Bell, Coram. B. 3, P. 1, ch. 4, § 1, pp. 606, 607 (5th ed.). = Ante, § 116 ; Abbott on Shipp. P. 2, ch. 2, § 6 ; Blood v. Goodrich, 9 Wend. 68 ; 1 Liverra. on Agency, ch. 2, § 3, pp. 36, 36 (ed. 1818) ; 3 Kent, Comra. Lect. 46, pp. 162, 163 (4th ed.) ; 1 Bell, Coram. § 482 (4th ed.) ; Id. p. 639, (6th ed.) ; Gardner v. Lachlan, 8 Sim. 126, 128; Meyer v. Barker, 6 Binn. 234; Pickering v. Holt, 6 Greenl. 160. ' Abbott on Shipp. P. 2, oh. 2, § 5 (ed. 1829) ; Id. P. 3, ch. 1, § 2. But see 1 Liverm. on Agency, 294-296 (ed. 1818) ; Schack v. Anthony, 1 M. & Selw. 678 ; Leslie v. Wilson, 3 Brod. & Bing. 171 ; 1 Bell, Coram. B, 3, P. 1, ch. 4, § 1, pp. 606, 607 (6th ed.) ; Ante, § 160 ; Post, §§ 162, 278, 294, 422, 450, note. * Ante, §§ 36, 116, 117, 122 ; Post, § 163 ; Abbott on Shipp. P. 2, ch. 2, §§ 3, §§ 161, 162.] AUTHORITY, HOW EXECUTED. 201 § 162. The true principle, however, upon wliich all these cases stand, undoubtedly is, that the principal authorizes the agent to contract in his own name, and thereby to bind the principal also ; and then the common law acting upon the intention of the par- ties, makes the party who would be ultimately liable, immedi- ately liable to the other, whenever its forms of proceeding will enable it to do so.^ In this respect, there is a strong analogy to the jurisdiction exercised by courts of equity, in cases of assign- ment of choses in action, where the debtor is made directly liable to the assignee, although he might not be so at law. The gen- eral interests of trade and commerce require this expansion of the law of agency : and the edicts of the praetor, were unques- tionably founded on this, as a matter of public policy ; " facilius hoc in magistro, quam institore, admittendum propter utilitatem ; dicendum tamen erit eo usque producendam utilitatem navigan- tium."^ Indeed, it may be asserted as a general rule, that in all cases where an agent has contracted within the sphere of his agency, and the principal is not by the form of the contract bound at law, a court of equity will enforce it against the princi- pal, upon principles ex aequo et bono.^ 11 ; Id. P. 8, ch. 1, § 2 (ed. 1829) ; Dubois v. Delaware & Hudson Canal Co. 4 "Wend. 285 ; Randall i?. Van Vechten, 19 John. 60. ' See Abbott on Shipp. P. 2, ch. 2, §§ 6-8 (ed. 1829) ; Id. P. 3, oh. 1, § 2 ; Higgins V. Senior, 8 Mees. & Wels. 834, 844 ; Ante, § 160 a, and note ; Post, § 270, and note. » Dig. Lib. 14, tit. 1, 1. 1, § 6. ^ Clark's Ex'crs v. Van Reimsdyk, 9 Cranch, 153; Abbott on Shipp. P. 2, ch. 2, § 5 (ed. 1829) ; Id. P. 3, ch. 1, § 2 ; Ante, § 160, note ; Dubois v. Del- aware & Hudson Canal Co. 4 Wend. 285. It seems, that in Louisiana, a power executed by the agent in his own name, will bind his principal, when he acts in the business intrusted to him, and according to the power conferred ; for in that law the liability of the principal depends upon the act done, not upon the form in which it has been executed. The only difference in that law is, that where the agent contracts in his own name he adds his own personal responsibility to that of the person who has empowered him. Hopkins v. Lacouture, 4 La. 64 ; Hyde v. Wolff, 4 La. 234. This seems also to be the rule of the foreign continental law ; and Pothier lays it down as clearly the law of France. Pothier on Oblig. n. 82, 448 ; 2 Emerig. on Assur. ch. 4, § 12, pp. 465-467. It was also clearly the doctrine of the Roman law, in which, in such cases, the actio utilis institoria was allowed against the principal, and the actio exereitoria, against the owner, which are analogous to our suits in equity. Pothier on Oblig. n. 82, 447, 448 ; Dig. Lib. 14, tit. 3, 1. 3, § 17 ; Pothier, Pand. Lib. 14, tit. 3, n. 17, 18; Dig. Lib. 14, tit. 1, L 1, §§ 7-9, 12; Pothier, Pand. Lib. 14, tit. 1, 202 AGENCY. [CH. VII. § 163. The Roman law seems, however, in some of its juridical regulations, to have proceeded upon principles somewhat differ- ent from ours, as to actions by and against parties contracting througli the instrumentality of agents. In general, the principal, although bound by the act of his agent, was not personally and directly liable to the other contracting party, nor could he en- force the contract against the latter.^ The only direct remedy (^actio directa) was between the immediate parties to the con- tract ; that is, the agent and the other contractor. Thus Pothier states it as the undoubted rule (and he is confirmed by other civilians) : " ex contractu procuratoris, actio regulariter pro- curatori et adversus procuratorem quaeritur ; non autem domino, aut adversus dominum." ^ There were exceptions to the rule, as has been before intimated ; but they were principally introduced by the praetor, as a matter of equity, and hence called actiones utiles, in which the contract of an agent would be enforced against his principal ; as for example, in cases of exercitors or owners of ships, by the actio exercitoria, and in other agencies of a common nature in trade, siich as the actio institoria against shop-keepers, and others acting through agents (institores or pro- curator es'), in favor of commerce.^ And it would seem that in the modern nations recognizing the civil law as the basis of their jurisprudence, the like action (actio utilis) will generally lie by or against the principal upon the contract of his agent ; and that it is competent for the agent to contract in his own name directly or in the name of his principal only. Such certainly is the law in Scotland and in Prance.* In cases of this sort where n. 9-18; 2 Kent, Comm. Lect. 41, p. 630, note (d), (4th ed.) ; Ante, § 160; Post, § 163, note, §§ 278, 422, 460. • Post, §§ 261, 271, 42.5, 426. " Pothier, Pand. Lib. 3, tit. 3, n. 9, 10 ; 1 Stair, Inst, by Brodie, B. 1, tit. 12, § 16 ; Ersk. Inst. B. 3, tit. 3, § 43. ^ Ersk. Inst. B. 3, tit. 3, §§ 43, 46 ; 1 Stair, Inst. B. 1, tit. 12, §§ 16, 18, 19 ; Pothier, Pand. Lib. 3, tit. 3, n. 1, 2, 6, 9, 10, and note ib. (3) ; Pothier on Oblig. n. 82, 458-60; Ante, § 117. ■• 1 Stair, Inst, by Brodie, B. 1, tit. 12, § 16; Pothier on Oblig. n. 447,448; Id. n. 74, 82. Pothier on Oblig. (by Evans), u. 82, speaking on this subject, says, "We contract through the ministry of another, not only when a person merely lends us his ministry, by contracting in our name, and not in his own, as when we contract by the ministry of a tutor, curator, agent, &c. , in their quality as such. We are also deemed to contract by the ministry of another, though he contracts himself in his own name, when he contracts in relation to the §§ 163, 164.] AUTHORITY, HOW EXECUTED. 203 the agent contracts in the name of his principal, having due au- thority, the principal is directly bound, and the agent is not (in general) personally liable. But if the agent makes the contract for his principal in his own name, he incurs a personal responsi- bility, although there is an accessorial obligation on the part of the principal.^ § 164. Hitherto, for the most part we have been considering cases of pure agency, where the authority is unclothed with any real or apparent interest in the property itself. But where the authority is coupled with an interest in the property itself, there (as we have seen) ^ the authority over it may be, and, in general, properly is, executed in the name of the agent himself, and not in that of the principal. Perhaps some of the cases of factors, and masters of ships, and insurance agents, may be explained upon this broad principle ; for they are in some cases clothed with a legal interest in the property, or the contract.^ Thus, if the principal has clothed a factor with the legal title to the property, subject to his own equitable ownership, or has authorized the factor to sell it in his own name, there cannot be a doubt that he may so sell it ; and the legal title will pass to the purchaser.* The master of a ship, too, who sells the ship or cargo, or a part thereof, in a case of necessity, generally sells it in his own name, and is presumed to be clothed with this superinduced authority affairs which we have committed to his management ; for we are supposed to have adopted and approved, beforehand, of all the contracts which he may make respecting the affairs committed to him, as if we had contracted ourselves, and are held to have acceded to all the obligations resulting therefrom. Upon this principle is founded the actio exercitoria, which those, who have contracted with the master of a ship for matters relative to the conduct of such ship, have against the proprietor, who has appointed the master. Upon the same prin- ciple is founded the actio institoria, which those, who have contracted with the manager of a commercial concern, or a manufactory, have against the employer (le commettant), and the actio utilis institoria, which relates to contracts made with a manager of any other kind." Post, § 271. ' Pothier on Oblig. n. 447-449. ^ Ante, § 160; Post, §§ 399, 400. 3 Ante, §§ 116, 160, IGl ; Post, §§ 278, 298, 299, 399-401. " Post, §§ 397, 400, 401 ; Paley on Agency, by Lloyd, P. 1, ch. 3, § 6, pp. 207, 208; P. 2, ch. 3, §5, pp. 288, 289; Coates v. Lewes, 1 Campb. 444; Baring v. Corrie, 2 B. & Aid. 137 ; 3 Chitty on Com. & Manuf. ch. 3, pp. 205, 206 ; Martini v. Coles, 1 M. & Selw. 140, 147 ; Pickering v. Busk, 16 East, 204 AGENCY. [CH. Til. in such extremities, by virtue of his office.^ But the more common cases in which this principle is applied, are, where there is an authority coupled with an interest in mortgages and other conveyances of real or personal property to the grantee, in which is also contained an authority to the grantee to sell the property under certain circumstances. In such cases, the legal estate in the property being in the grantee, he is at liberty to sell it in his own name, and to confer thereby, under the circumstances con- templated by the conveyance, an absolute title to the purchaser.^ •But, where no interest whatever in the property is conveyed to the grantee of the authority, although the instrument is designed to be a security for debts due to him, the sale by the grantee, to bind the principal, must be in his name, and not in that of the grantee.^ § 165. In the next place, let us consider, what in other respects will be held to be a good execution of the authority. And here it may be laid down as a general rule, that, in order to bind the principal (supposing the instrument to be in other respects prop- erly executed), the act done must be within the scope of the au- thority committed to the agent.* In other words, his authority or commission must be punctiliously and properly pursued ; and its limitations and extent duly observed, although a circumstan- tial variance in its execution will not defeat it.^ If the act vfiries substantially (and not merely in form) from the authority or com- mission in its nature, or extent, or degree, it is void, as to the principal, and does not bind him.^ [And where the agent of a corporation was authorized to borrow money from a bank, and to execute the note of the corporation therefor, and he borrowed the money accordingly, but executed a bond therefor under the seal of the corporation, it was held that he did not pursue his authority, and that his act was not _ binding on his principal.^] ' The Gratitudine, 3 Rob. 257-263 ; The Schr. Tilton, 5 Mason, 481 ; Ante, 116-118. ^ See Hunt v. Rousmaniere's Adm'r, 2 Mason, 244; s. c. 3 Mason, 294; 8 Wheat. 174 ; s. c. 1 Pet. 1, 13 ; Ante, § 160 ; Post, §§ 399, 400. ' Ibid. ■> Ante, §§ 126-133. ' Com. Dig. Attorney, C. 15 ; North River Bank o. Aymar, 3 Hill, 262 ; Nixon V. Hyserott, 5 John. 58 ; Batty v. Carswell, 2 Jojin. 48. " Com. Dig. Attorney, C. 11, 14, 15 ; North River Bank v. Aymar, 3 Hill, 262; Ni.xon v. Hyserott, 5 John. 58 ; Batty v. Carswell, 2 John. 48. ' Mayor and Aldermen of Little Rock v. State Bank, 3 Ark. 227. §§ 164-166.] AUTHORITY, HOW EXECUTED. 205 Of course, this doctrine is to be taken with an exception of the cases of a general authority, where there are secret instructions limiting it, to which our attention has been already directed.^ Thus, for example, if an agent is authorized to do an act upon condition, and he does it absolutely ; or, vice versd, if he is au- thorized to do an act absolutely, and he executes it upon condi- tion, — in such cases the act will not bind the principal.^ On the other hand, if a general discretion is reposed, the act of the agent, however indiscreet, becomes obligatory, unless, indeed, there is such gross misconduct, as amounts to a fraud upon the- principal, and that misconduct is known to the person contract- ing with the agent.^ § 166. But the question may often arise, whether an act is wholly void, or not, when the agent does more than he is author- ized to do, or less than he is authorized to do. There- are some distinctions on this subject, which deserve to be examined, not because they present any diversity in the general principle, but because they present some diversity in the application of it. Lord Coke has laid down the rule in the following terms: " Regularly, it is true that, where a man doth less than the commandment or authority committed unto him, there, the com- mandment or authority being not pursued, the act is void. And, where a man doeth that, which he is authorized to do, and more, there it is good for that, which is warranted, and void for the rest. Yet both these rules have divers exceptions and limita- tions." * And Lord Ot)ke is well warranted in suggesting, that there are exceptions and limitations. Where there is a complete execution of the authority, and something ex abundanti is added, which is improper, there the execution is good, and the ex;cess only is void. But where there is not a complete execution of a power, or where the boundaries between the excess and the ' Ante, §§ 73, 126-133 ;' Pothier on Oblig. n. 79 ; Tradesman's Bank v. Astor, 11 Wend. 87. ^ Co. Litt. 258 b ; Paley on Agency, by Lloyd, 29 ; Com. Dig. Attorney, C. 13, 14; Howard v. Baillie, 2 H. Bl. 623. ■ = 1 Liverm. on Agency, ch. 5, § 1, pp. 96, 97 (ed. 1818) ; Ante, §§ 78, 127- 133. * Co. Litt. 258 a ; Com. Dig. Attorney C. 15 ; Paley on Agency, by Lloyd , 179, and note (n) ; 1 Liverm. on Agency, ch. 6, § 1, pp. 98, 101, 102 (ed. 1818). 206 AGENCY. [CH. VII. rightful execution are not distinguishable, there the whole will be void.^ § 167. Some illustrations of this doctrine may, perhaps, be useful. Thus, if a man has a power to settle a jointure upon his wife for life, and he should execute it by an appointment for ninety-nine years, if she should so long live, even if it would be a void execution of the power at law, it would be upheld in equity pro tanto. For in such a case he has done less than his power, and the boundaries are clear and distinguishable ; for if the wife should outlive the ninety-nine years, the estate, for the residue of her life would be undisposed of.^ So, if the power were to lease for twenty-one years, and the party should make a lease for forty years, it would be a good execution of the power in equity, although not at law, for the twenty-one years, and void as to the residue ; for it distinctly appears how much he has ex- ceeded it.^ So, if a power of appointment is executed in definite proportions among persons who are objects of the power, and others who are mere strangers, it will, in many cases, be good as to the proper objects, 'and void as to the strangers, because the excess is clearly ascertained ; and the donee of the power shall not be allowed, by his own wrongful act, to defeat the rightful execution pro tanto J^ And where a distinct limitation or appoint- ment is made according to the power, and another distinct limita- tion or appointment is made in the same instrument, exceeding the power, the former will be good even at law, and the latter will be held void.^ » ' Harg. note (2'02) to Co. Litt. 258 a ; Alexander ». Alexander, 2 Ves. 644; Com. Dig. Attorney, C. 15; 1 Liverm. on Agency, ch. 5, § 1, pp. 101, 102 (ed. 1818). Mr. Sugden, in his work on Powers, has considered this sub- ject at large, with reference to powers of appointment and the execution of powers under the statute of uses. See Sugden on Powers (3d ed.), ch. 5, per tot., and especially §§ 7 and 8 of the same chapter. Id. ch. 6, §§ 7 and 8 (6th ed.), pp. 373-456. ^ Alexander v. Alexander, 2 Ves. 644 ; Post, § 173. ' Alexander u. Alexander, 2 Ves. 644 ; Sugden on Powers, ch. 5, § 8, pp. 649, 660 (3d ed.) ; Id. ch. 9, § 1, vol. 2, pp. 69-79 (6th ed.) ; Campbell ». Leach, Ambl. 740 ; Jenkins v. Kemishe, Hardres, 395 ; Roe v. Prideaux, 10 East, 168 ; Dig. Lib. 17, tit. 1, 1. 33. * Sugden on Powers (3d ed.), ch. 5, § 8, pp. 546-649 ; Id. ch. 9, § 1, vol. 2, pp. 69-79 (6th ed.) ; Adams v. Adams, Cowp. 651. ' Sugden on Powers (3d ed.), ch. 6, § 8, pp. 660-,556 ; Id. ch. 9, § 1, vol. 2, pp. 69-79 (6th ed.) ; Commons v. Marshall, 6 Bro. Pari. 168. §§ 166-169.] AUTHORITY, HOW EXECUTED. 207 § 168. Upon the same ground, if a warrant of attorney is given to make livery to one person, and the attorney make livery to two ; or if the authority is to make livery of Blackacre, and the attorney makes livery of Blackacre and Whiteacre, the exe- cution is good, so far as it is authorized by the power, and void as to the residue ; ^ for the excess is clearly ascertainable. So, if a letter of attorney be to make ILvery absolutely, and the attorney make it upon condition, this is a good execution of the power, and amounts to a sufficient livery, and the condition is void.2 But the contrary would be true, if the livery were to be made upon condition, and the attorney were to make it abso- lute ; ^ or, if it were to make livery to two, and he made it to one only.* § 169. Upon the same ground, if an agent were authorized to procure insurance upon a ship for two thousand dollars, and he should procure a policy for two thousand dollars on the ship, and two thousand dollars on the cargo, the policy would be held good as to the ship, and void as to the cargo, at least luiless under spe- cial circumstances.^ On the other hand, if an agent were author- ized to sign a note for his principal, payable in six months, and he should sign one payable in sixty days, it would be utterly void.^ [So, if being authorized to draw a bill at four months, he draws one payable in less than four months from the time it is drawn, but antedates it, making it apparently drawn according to his au- thority .7] So, if an agent were authorized to purchase goods on a credit of three and six months, and to give notes accordingly in the name of the principal ; and he were to purchase the goods * Perkins on Convey, n. 189 ; 1 Liverm. on Agency, ch. 6, § 1, pp. 101, 102 (ed. 1818). " 1 Liverm. on Agency, 102 (ed. 1818) ; Perkins on Convey, n. 188, 189. ' Perkins on Convey, n. 188 ; 1 Liverm. on Agency, ch. 5, § 1, p. 102 (ed. 1818) ;• Co. Litt. 258 a. * 1 Liverm. on Agency, ch. 5, § 1, p. 103 (ed. 1818) ; 2 Roll. Abridg. Feoffment, p. 9, 1. 60. See also Dig. Lib. 45, tit. 1, 1. 1, § 6. A case some- what analogous to some of the foregoing is put in the Roman law. Si mihi Pamphilum stipulanti, tu Pamphilum et Stichum spoponderis ; Stichi abjec- tionem pro supervacuo habendam puto. Nam si tot sunt stipulationes quot corpora ; duae sunt quodammodo stipulationes, una utilis, alia inutilis. Neque vitiatur utilis per hanc inutilem. Dig. Lib. 45, tit. 1, 1. 1, § 6; 1 Liverm. on Agency, ch. 5, § 1, p. 102, note (ed. 1818). * 1 Liverm. on Agency, ch. 5, § 1, pp. 101, 102 (ed. 1818). « Batty V. Carswell, 2 John. 48 ; Dig. Lib. 45, tit. 1, 1. 1, § 4. ' Tate V. Evans, 7 Mo. 419. 208 AGENCY. [CH. VII. and give notes payable at four and five months, it would be utter- ly void, since in neither respect is it in conformity to the authori- ty, as to the time of credit given to the principal, although the credit may possibly be equally beneficial to him ; for, as to tliat, the agent has no right to judge.^ § 170. The general principle, which pervades all these cases, is the same ; that the principal is not bound by the iinauthorized acts of his agent, but is bound where the authority is substaur tially pursued, or so far as it is distinctly pursued. But the question may often arise, whether, in fact, the agent has exceeded what may be deemed the substance of his authority. Thus, if a man should authorize an agent to buy one hundred bales of cot- ton for him, and he should buy fifty at one time of one person, and fifty at another time of a different person ; or if he should buy fifty only, being unable to purchase more at any price, or at the price limited ; the question might arise, whether the authority was well executed. In general, it may be answered that it was ; because, in such a case, it would ordinarily be implied, that the purchase might be made at diiferent times, of different persons ; or that it might be made of a part only, if the whole could not be bought at all, or not within the limits prescribed.^ So, if a commission to an agent were to purchase fifty shares of the stock of a bank, and the agent should contract with one person, who is the owner of thirty shares, for the purchase of that number, intending to buy the remaining twenty shares from some other person, the principal would be bound by that contract, although the agent should afterwards fail in his attempts to buy the remaining twenty .^ So, if a merchant should direct his corre- spondent to procure insurance for him of two thousand dollars upon a particular voyage, for a particular ship, and, after one underwriter had subscribed one thousand dollars, the others should decline the risk ; in such a case, the authority. would be well executed for the one thousand dollars, and the principal would be bound to pay the premium.* So, if the principal should ' Post, §§ 175-178.; Instit. Lib. 3, tit. 27, § 8. « 1 Liverm. on Agency, ch. 6, § 1, pp. 99, 100 (ed. 1818) ; Dig. Lib. 17, tit. 1, 1. 33. ' 1 Liverm. on Agency, ch. 5, § 1, pp. 99, 100 (ed. 1818) ; 2 Kent, Comm. Lect. 41, pp. 618, 619 (4th ed.). * 1 Liverm. on Agency, ch. 5, § 1, p. 100 (ed. 1818) ; Dig. Lib. 17, tit. 1, 1.33. §§ 169-172.] AUTHORITY, HOW EXECUTED. 209 authorize his agent to become surety in a certain sum for him, and he should become surety in a less sum, it has been thought that the principal would be bound by the stipulation ; and such, indeed, is the rule of the Roman law.^ § 171. But cases may arise, in which it would be as manifest from the objects of the purchase, that the whole or no part of the property was to be bought, and eyen bought of the same person. As for example, if a person should authorize his agent to buy a ship, it would be presumed that a purchase of the whole, and not of a part, was intended ; for the convenient use of a ship may be most materially impaired by a divided ownership ; and, perhaps, the whole objects of the purchase would thereby be defeated.^ The same rule would apply to the case of a commission or authority to buy a plantation. It would not be a good execution of the commission to buy a part thereof only, or to buy an undi- vided share of it, or any interest in it less than the fee. In all such cases, it would generally be presumed, that the entirety of the property constituted an essential element in the purchase.^ But of this more hereafter.* § 172. The true inquiry, therefore, in all such cases, is, what, under all the circumstances, is the true nature and limits of the authority. If it is exceeded in any substantial manner, it will not be obligatory on the principal." Let us suppose a case, where A. should authorize B. to purchase ten bales of cotton at ten cents per pound ; and B. should purchase the ten bales at eight cents per pound ; no one would doubt, that the purchase would be binding upon the principal ; because the meaning of the parties is presumed to be, that the price should not exceed the ten cents. In such a case, the maxim may well apply, " Omue majus in se continet minus. Majori summse minor inest." ^ But if B. should in such a case, purchase at twelve cents, the purchase would not be binding on the principal, or at least, not binding unless B. ' Post, § 174 ; 1 Liverm. on Agency, ch. 5, § 1, p. 100 (ed. 1818) ; Dig. Lib. 17, tit. 1, 1. 33 ; Pothier, Pand. Lib. 17, tit. 1, n. 46. See also Gordon V. Buchanan, 5 Yerger, 811 ; Lathrop v. Harlow, 23 Mo. 213. ' Post, § 180. ' 1 Liverm. on Agency, ch. 5, § 1, p. 100 (ed. 1818) ; Post, 176, 177. * Post, §§ 176-178. 5 Ante, § 165. « 1 Liverm. on Agency, ch. 5, § 1, pp. 96-98 (ed. 1818) ; Instit. Lib. 3, tit. 27, § 8 ; 2 Kent, Coram. Lect. 41, 617, 618 (4th ed.) ; Post, §§ 174, 176. AaENCT. 14 210 AGENCY. [CH. Til. should offer the bales of cotton to A. for the price of ten cents.^ In the former case, the bargain would be advantageous to the principal ; in the latter case it would be injurious ; and the law will construe the intention favorably in the case, where the less price is given, because it is for the advantage of the principal, and must be presumed to have been within the scope of the authority ; but it will never construe it to have been the intention of the principal to allow the agent to exceed the authority given to him, when it is to his disadvantage.^ § 173. Upon somewhat similar grounds of the apparent inten- tion, an agent, who has not a mere authority, but has an author- ity coupled with an interest, may do less than the terms of his authority seem directly to warrant, and yet bind his principal.^ Thus, if in England a copyholder for life has a license to lease for five years, he may lease for three years ; for it will be presumed, that the authority was limited in its extent to the duration of five years, and comprehended any intermediate period.^ So, a license to a copyholder for life to lease for five years, if he should so long live, will be well executed by a lease for five years, omitting," if he should so long live ; for the law will imply the limitation in such a case.^ § 174. The Roman law adopted similar distinctions. The gen- eral rule in that law was (as we have already seen), that the limits of the authority must be strictly observed.® If an author- ity was given to buy at a limited price, that price could not law- fully be exceeded. " Diligenter igitur fines mandati custodiendi sunt. Nam qui excessit, aliud quid facere videtur.'' Praeterea in causa mandati etiam illud vetitur, ut interim neo melior causa ' Pothier on Oblig. n. 77, 78 ; Co. Litt. 258 (a) ; 1 Liverm. on Agency, ch. 5, § 1, pp. 97-99 ; Dig. Lib. 17, tit. 1; 1. 33 ; 1 Domat, B. 1, tit. 16, § 8, art. 6, 7 ; 2 Kent, Comm. Lect. 41, pp. 617-619 (4th ed.) ; Just. Inst. Lib. 3, tit. 27, §§ 8, 9. » Ibid. ; Post, § 175. 3 See ante, § 164; Post, § 489. « Com. Dig. Attorney, C. 12, 16; 1 Roll. Abridg. Authority, G. 1, 1. 47; Ante, § 167. 6 1 Roll. Abridg. Authority, G. 2, 1. 50 ; Com. Dig. Attorney, C. 16 ; Ante, § 167. « Ante, §§ 43, 70. ' Ante, § 70 ; Dig. Lib. 17, tit. 1, 1. 6 ; Pothier, Pand. Lib. 17, tit. 1, n. 41. The Institutes say (Lib. 3, tit. 27, § 8), Is, qui exequitur mandatum, non debet excedere fines mandati. Ante, §§ 43, 70. §§ 172-174.] AUTHORITY, HOW EXECUTED. 211 mandantis fieri possit ; interdum melior ; deterior vero nunquam.^ Melior autem causa mandantis fieri potest, si, cum, tibi mandas- sem, ut Stichum decern emeres, tu eum minoris emeris ; vel tan- tidem, ut aliud quicquam servo accederet ; utroque enim casu, aut non ultra pretium, aut intra pretium fecisti.^ Et quidem si mandavi tibi, ut aliquam rem milii emeres nee de pretio quidquam statui, tuque emisti, utrinque actio nascitur." * But the Roman lawyers were divided in opinion, whether, if the stipulated price was exceeded, the principal was bound if the agent offered to remit the excess. However, the better opinion was that main- tained by Proculus, that, in such case, the principal was bound.* " Quod, si pretium statui, tuque pluris emisti, quidam negave- runt, te mandati habere actionem, etiam si paratus esses, id, quod excedit, remittere ; namque iniquum est, non esse mihi cum illo actionem, si nolit ; illi vero, si velit, mecum esse.^ Sed Proculus recte eum, usque ad pretium statutum, acturum existimat ; quae sententia sane benignior est." ^ Again ; " Rogatus, ut fidejuberet ; , • Dig. Lib. 17, tit. 1, 1. 3 ; Pothier, Pand. Lib. 17, tit. 1, n. 49 ; Just. Inst. Lib. 3, tit. 27, §§ 8, 9. » Dig. Lib. 17, tit. 1, L 5, § 6; Pothier, Pand. Lib. 17, tit. 1, n. 48; Justi Inst. Lib. 3, tit. 27, § 8 ; 1 Domat, B. 1, tit. 15, § 3, art. 6. = Dig. Lib. 17, tit. 1, 1. 3, § 1. * 2 Kent, Comm. Lect. 41, p. 618 (4th ed.) ; 1 Liverm. on Agency, ch. 6, § 1, pp. 98, 99 (ed. 1818) ; Just. Inst. Lib. 3, tit. 27, § 8. Mr. Livermore thinks that the same rule prevails in our law ; and he puts the case thus : " If I have directed my agent to cause insurance to be effected for me, and he pays a higher premium than that prescribed by the order, the commission will be well exe- cuted, the excess being a charge upon him." Ibid. And he cites a case from Valin, Comm. tome 2, liv. 3, tit. 6, Des Assur. art. 3, to that effect. Perhaps it may not be quite certain that our law would decide this case in the same way, although the decision is full of equity. It might be difficult to s^y, that the principal could insist upon his right to adopt the policy, made contrary to his orders, without ratifying it in toto. And, on the other hand, it might be diffi- cult to say, that the agent could compel the principal to adopt any indivisible contract of this nature, made contrary to his orders, by a remission of. part of the premium. See Pindley v. Breedlove, 16 Martin, 105. Mr. Chancellor Kent, however, is of opinion (and his opinion is deservedly of very great authority) that the decree of the French court was right, and that the defence was unjust. 2 Kent, Comm. Lect. 41, p. 618 (4th ed.). ' Dig. Lib. 17, tit. 1, 1. 3, § 2 ; Pothier, Pand. Lib. 17, tit. 1, n. 45 1 1 Stair, Inst, by Brodie, B. 1, tit. 12, § 9. " Dig. Lib. 17, tit. 1, I. 4, and 1. 6, § 3, 1. 33 ; Pothier, Pand. Lib. 17, tit. 1, n. 45, 46 ; Just. Inst. Lib. 3, tit. 27, § 8 ; 1 Liverm. on Agency, ch. 6, § 1, pp. 97, 98 (ed. 1818) ; 1 Domat, B. 1, tit. 15, § 3, art. 7. 212 AGENCY. [CH. Til, si in minorem, summam se obligavit, recte tenetur. Si in majo- rem, Julianus verius putat, quod a plerisque responsum est, eum, qui majorem summam, quam rogatus erat, fidejussisset, hactenus mandati actionem habere, quatenus rogatus esset ; quia id fecisset, quod mandatum ei est ; nam usque ad eam summam in quam rogatus erat, fidem ejus spectasse videtur, qui rogavit." ^ § 176. But the mere fact, that the bargain which is made will be more beneficial for the principal, will not avail the agent if it be different from the substance of the authority.''^ Thus, if A. authorizes B. to purchase a' particular house at a certain price, and B. purchases another house at a lower price, which is really a better house, still A. is not bound thereby ; for the estate is not that which was authorized to be bought. " Si mandavero tibi, ut domum Sejanam centum emeres, tuque Titianam emeris long^ majoris pretii, centum tamen, aut etiam minoris non videris implesse mandatum." ^ § 176. Upon a broader ground, any deviation from the author- ity which would defeat the manifest inducements of the princi- pal to make the purchase, would be void, whether the bargain were beneficial or not. Therefore, if an authority is given to purchase a house with an adjoining wharf and store, and the agent should buy the house only, although at an advantageous bargain, the principal would not be bound to take the house, especially if the wharf and store constituted an apparent induce- ment to the purchase.* So, if an agent were authorized to pur- chase a certain farm in fee, and he should purchase an interest for life, or for years, or an undivided right or share of one tenant in common therein, the principal would not be bound thereby; for it would be presumed, that the main inducement to the pur- chase was the purchase of the entirety of the estate and title.^ It would be an abuse of the meaning of the maxim, " Majori summse minor inest," to apply it to such cases.^ So, if the prin- cipal should authorize the agent to purchase a house for him, it '■ Dig. Lib. 17, tit. 1, 1. 33 ; Pothier, Pand. Lib. 17, tit. 1, n. 46. ' Ante, § 170. " Dig. Lib. 19, tit. 1, L 6, § 2 ; Pothier, Pand. Lib. 17, tit. 1, n. 43 ; Pothier on Oblig. n. 78; 1 Liverm. on Agency, 103 (ed. 1818). * 2 Kent, Comm. Lect. 41, pp. 618, 619 (4th ed.). <■ Ibid. « Ante, § 172. §§ 174-177.] AUTHOEITY, HOW EXECUTED. 213 would not be a proper execution of the authority to purchase a part of the house only ; for, it must be presumed, unless the contrary should appear, that the principal intended the purchase of the whole house, and not of a part only.^ But if the whole house were purchased, it would not make any difference as to binding the principal, that it was purchased in parts of the different owners.^ § 177. However, in the case of an authority to purchase a farm or tract of land, owned and sold in parts, it seems, that by the Roman law a purchase of .a part would be within the authority, unless there was a plain restriction, that tlie whole should be purchased or none. At least, so the Digest seems to import ; " Quod si fundum, qui per partes venit, emendum tibi mandassem, sed ita, ut non aliter mandato tenear, quam si totum fundum emeres, si totum emere non potueris, in partibus emendis tibi negotium gesseris ; sive habueris in eo fundo partem, sive non ; et eveniet, ut is, cui tale mandatum datum est, periculo suo interim partes emat ; et nisi totum emerit, ingratus, eas retineat.^ Quod si mandassem tibi, ut fundum mihi emeres, non addito eo, ut non aliter mandato tenear, quam si totum emeres ; et tu partem, vel quasdam partes ejus emeris ; turn habebimus sine dubio invicem mandati actionem, quamvis aliquas partes emere non potuisses.* ' Dig. Lib. 17, tit. 1, 1. 36, § 2; Pothier, Pand. Lib. 17, tit. 1, n. 44; Po- thier, Traits de Mandat, n. 95 ; Ante, § 171. 2 Dig. Lib. 17, tit. 1, 1. 35, 36, §§ 1, 2 ; Pothier, Pand. Lib. 17, tit. 1, n. 44 ; Post, § 177. " Dig. Lib. 17, tit. 1, 1. 36, § 2 ; Pothier, Pand. Lib. 17, tit. 1, n. 44 ; Po- thier, Traite de Mandat, n. 96 ; Liverm. on Agency, ch. 5, § 1, pp. 100, 101 (ed. 1818) ; 2 Kent, Comm. Lect. 41, pp. 618, 619 (4th ed.). ' Dig. Lib. 17, tit. 1, L 36, § 3 ; Pothier, Pand. Lib. 17, tit. 1, n. 44. Mr. Livermore has stated the whole of this doctrine with singular clearness and accuracy, and supposes it to be coincident with our law. " Therefore," says he, " if I have commissioned you to buy for me a certain plantation, and you have bought a part of it only, this purchase, which you have made in my name, will not be obligatory upon me ; for this business is of an entire nature ; and although I might have a desire to be the owner of the entire plantation, yet its value may be very much lessened, or in my estimation lost, by a division of it. If, however, when I employed you to purchase this plantation, I knew, that it was owned by several tenants in common, who proposed to sell their interests separately, I shall be bound by your contracts if you have purchased the estate of some of the tenants in common, but have not been able to purchase of the others ; unless there were an express provision, that I should be obliged only 214 AGENCY. [CH. Til. § 178. The ground of this distinction is not very apparent. But it probably may have rested upon the presumption, that where the house or land is owned and to be sold in parts, the authority ought, in the absence of all controlling restrictions to be treated as an authority to purchase the parts in severalty, as far as the agent can. In our law, it is most probable, that the construction would ordinarily be the other way, unless under peculiar circumstances ; as, where the purchaser was already a part-owner of the house or land ; and the object might fairly be presumed to be to enlarge his interest in it, by purchasing the shares of the other part-owners, as he might be able, from time to time. § 179. Similar considerations would apply to the converse case, where an agent is authorized to sell the land of his prin- cipal ; for a sale of a part at one time, and a sale of another part at another time, might, in some cases, be deemed good, and in others be deemed bad, according to the just presumption of intent, and the consideration, whether a partial sale would be injurious, or not, to the sale of the residue. Thus, for example, if A. should, by his will, devise all his lands to be sold, it might be a good execution of the authority, to sell a part at one time, and a part at another.^ So, if there be a feoffment of different parcels of land, with a letter of attorney to make livery thereof, the attorney may make livery of a part thereof at one time, and for a part thereof at another time.^ So, if A. should authorize in case of all the estates being purchased. It is the same thing, if the estate, •which the agent has obtained is less than that which he was authorized to pur- chase. As, if I have given you an authority to purchase for me the estate of J. S. in a certain dwelling-house, of which he has the fee-simple, and you pro- cure me a lease for life, or a term of years ; this will not be in pursuance of your authority." 1 Liverm. on Agency, ch. 5, § 1, pp. 100, 101 (ed. 1818). ' Com. Dig. Attorney, C. 15 ; Co. Litt. 113 a. « Com. Dig. Attorney, C. 15; Battey v. Trevillion, Moore, 278, 280. It was held, in Corlies v. Widdifield, 6 Cowen, 181, that, if a factor has the goods of different principals for sale on credit, he may sell the whole to one purchaser, and take his note, payable to himself, for the aggregate amount, and it will not be a violation of his duty. But that case had some peculiarities in it, affecting the general doctrine so laid down. And it may deserve much consideration, whether uniting in one note the claims of different principals might not materially affect the rights of each. The court in that very case, seemed to be of opinion, that, at least under some circumstances, the act might have been a violation of duty. See Jackson v. Baker, 1 Wash. Cir. 395, 445 ; Ante, § 38, note. In §§ 178-180.] AUTHORITY, HOW EXECUTED. 215 his agent to sell all his houses and lands in a particular place, where he owned divers distinct houses and tracts of land in severalty, a sale of one house or tract at one time, and the sale of another house or tract at another, would, or at least might, be good. But a sale of an undivided portion of any one house or tract of land would hardly be deemed justified by the power, from its apparent tendency to injure the sale of the residue, and to diminish the value of the residue, even to the owner himself. § 180. In cases of mercantile sales of personal property, a very liberal construction of the authority would, undoubtedly, be generally, although perhaps not universally, adopted.^ Thus, if A. should consign a cargo of goods to B. for sale ; there could be no doubt that B. might sell different parcels thereof to differ- ent persons, and at different times ; and the sales would be held, by implication, fairly within the scope of the authority. This is the known usage of trade ; and it would probably be adopted as a just rule of interpretation of the authority, independent of any known usage in the particular place of sale. But, if an agent were authorized to sell a ship, it would, upon grounds of incon- venience, be presumed that a sale of the whole, and not of a part only, was authorized ; because the use of the ship for beneficial purposes might (as has been already intimated) be greatly em- barrassed by a divided ownership.^ Johnson v. O'Hara, 5 Leigh (Va.) , 456, it was proved to be the usage in Peters- burg, Va., for a commission merchant, not only to sell on credit, but to take one note for the goods sold for different persons, payable to himself or order, and that he might procure such note to be discounted in his own name. But in so procuring the note to be discounted, the court held that he made it his own, and was liable for the proceeds to his principal, although the maker of the note had failed. Post, §§ 204 a, 206. [In the case of Clarke v. Tipping, 9 Beavan, 284, it is said, that among the most important duties of a factor are those which require him to give to his principal the free and unbiassed use of his own dis- cretion and judgment, to keep and render just and true accounts, and to keep the property of his principal unmixed with his own, or the property of other persons.] ' Ante, §§ 60, 73, 74, 82. • See 1 Liverm. on Agency, ch. 5, § 1, pp. 99, 100 (ed. 1818) ; Ante, § 171. Mr. Lloyd, in his edition of Paley on Agency, has, in his note to pp. 179, 180 (note n.), said, that inquiries as to the due execution of powers on this point (of doing more or less than the power directs), " can have little place in mercantile questions, where the act done is, for the most part, indivisible." It is apparent, from what is said in the text, that this remark, in its general latitude, is incorrect, if not unfounded. 216 AGENCY. [CH. VII. § 181. Where an agent has a general authority to receive pay- ment of a debt, he is ordinarily bound to receive the whole of it in money only ; for that is the only way which will enable him completely to discharge his duty to his principal.^ But circum- stances may vary this duty. As, for example, if he is a creditor of his principal, and the latter has authorized him to deduct from the sum received the amount due to himself, it will be sufficient for the agent to receive the balance in cash which wUl remain due to the principal after deducting the sum due to himself; and as to the other part of the debt, he may settle it with the debtor as he pleases, provided he gives credit therefor to the principal ; since it can make no difference to his principal how it is received, or whether it is ever received by the agent or not.^ § 182. Secondly. What is the degree of diligence required of agents in the proper exercise of their functions ? The doctrine, upon this subject is often laid down in very loose and indeter- minate terms. It is often said, that an agent is bound to use the utmost care and diligence in the execution of his trust.^ So, in the Roman law, terms equally indeterminate are often used. Thus, it is said, in the Digest, that some contracts make the party liable for deceit only ; some both for deceit and neglect. Nothing more than responsibility for deceit is demanded in deposits, and precarious possessions, or possessions at will. Both deceit and neglect are inhibited in mandates, lending for use, custody after sale, taking in pledge, hiring, also in portions, guardianships, and voluntary services.* Among these some require (even more than ordinary) diligence. " Contractus quidam dolum malum duntaxat recipiunt ; quidam, et dolum et culpam. Dolum tantum, depositum et precarium ; dolum et ' Ante, §§ 98, 103, 109, and note ; Post, §§ 215, 413, 429, 430, and note. ^ Barker v. Greenwood, 2 Younge & Coll. 419, 420; Stewart u. Aberdein, 4 Mees. & Wels. 211, 228 ; Post, § 413, note. ^ Paley on Agency, by Lloyd, Pt. 1, ch. 1, § 2, pp. 4, 5 ; Madeira ». Townsley, 12 Martin, 84. Lord Holt, in applying the doctrine to the analo- gous cases of hiring, says, " That if goods are let out for a reward, the hirer is bound to the utmost diligence, such as the most diligent father of a family uses." Coggs i;. Bernard, 2 Ld. Raym. 916; Jones on Bailm. 86. And in BuUer's Nisi Prius, 72, it is laid down, that " The hirer is to take all imaginable care of the goods delivered for hire." Jones on Bailm. 6 ; Id. 86. See also 1 Bell, Comm. § 394, pp. 867-370 (4th ed.). * Jones on Bailm. 15, 16. §§ 181-183.] AUTHORITY, HOW EXECUTED. 217 culpam, mandatum, commodatum, venditum, pignori acceptum, locatum, item dotis datio, tutelse negotia gesta. In his quidam et diligentiam." ^ And, again, it is said, after enumerating other contracts : " Sed ubi utriusque utilitas vertitur, ut in empto, ut in locate, ut in dote, ut in pignore, ut in societate, et dolus et' culpa praestatur." ^ Upon the true meaning of these passages commentators have been greatly divided.^ Even in case of mere gratuitous mandates, the code is supposed to have required very exact diligence, and to have made the mandatary liable for slight neglect.* " A procuratore dolum et omnem culpam, non etiam improvisum casum, praestandum esse, juris auctoritate manifeste declaritur.^ § 183. The true rule undoubtedly is, that as the contract of agency is one for the benefit of both parties, the agent is under- stood to contract for reasonable skill and ordinary diligence, and he is consequently liable for injuries to his employer, occasioned by the want of reasonable skill, and also for ordinary negligence ^ [but not for injuries caused by his mistake in a doubtful matter of law'^]. By reasonable skill, we are to understand, such as is, and no more than is, ordinarily possessed and employed by per- sons of common capacity, engaged in the same trade, business, or employment.^ By' ordinary diligence, we are to understand, that ' Dig. Lib. 50, tit. 17, 1. 23. The Florentine copy has quidem ; the Vulgate editions, quidam. Jones on Bailm. 18-20. " Dig. Lib. 13, tit. 6, I. 5, § 2. ^ Jones on Bailm. 14, 17, 18-29; Ersk. Inst. B. 1, tit. 1, § 21; Id. tit. 3, § 36 ; 1 Liverm. on Agency, ch. 8, § 2, pp. 337, 338 (ed. 1818). * 1 Stair, Inst. B. 1, tit. 12, § 10; Ersk. Inst. B. 3, tit. 3, § 36; Story on Bailm. § 173 ; Heinecc. Elem. Jur. Inst. Lib. 3, tit. 14, § 788 ; 1 Domat, B. 1, tit. 16, § 3, art. 4. ° Cod. Lib. 4, tit. 35, 1. 13 ; Heinecc. Elem. Pand. Lib. 17, tit. 1, § 233 ; Heinecc. Elem. Jur. Inst. Lib. 3, tit. 14, § 788. « Jones on Bailm. 9, 10, 23 ; Id. 86, 119 ; Story on Bailm. §§ 23, 466 ; 1 BeU, Comm. § 389, p. 364 ; Id. § 411, p. 387 (4th ed.) ; MoUoy, B. 3, ch. 8, § 10 ; Chitty on Com. & Manuf. 216 ; Chapman v. Walton, 10 Bing. 67 ; 1 Liv- erm. on Agency, 331-341 (ed. 1818) ; Paley on Agency, by Lloyd, 77, 78 ; Madeira v. Townsley, 12 Martin, 84 ; Leverick ». Meigs, 1 Cowen, 645 ; Brous- sard V. Declouet, 18 Martin, 260; Lawler «. Keaquick, 1 John. Cas. 174; Savage v. Birckhead, 20 Pick. K7. ' Mechanics' Bank v. Merchants' Bank, 6 Met. 13. 8 Story on Bailm. §§ 431-434 ; Jones on Bailm. 94, 98, 99 ; Denew v. Dav- erell, 3 Campb. 451 ; Leare v. Prentice, 8 East, 348 ; 1 Stair, Inst, by Brodie, B. 1, tit. 12, § 10, and note; 1 Liverm. on Agency, ch. 8, § 2, pp. 337-341 218 AGENCY. [CH. VII. degree of diligence which persons of common prudence are accus- tomed to use about their own business and affairs.^ § 184. This seems, also, to have been the rule of the Roman law, where culpa, or levis culpa, is deemed to be equivalent to ordinary neglect, or the want of ordinary diligence.^ And in regard to skill, although the language of the Roman lawyers is, " Imperitia culpse adnumeratur ; spondet peritiam artis ; spondet diligentiam gerendo negotio parem ; " ^ yet, this is to be under- stood with the proper qualification, that the agent contracts for the reasonable skill belonging to persons in general, engaged in the like business oi* employment. " In negotio gerendo opus sit diligentia atque industria ; et is, qui mandat, diligentiam rei ge- rendfe convenientem exigere ; et qui suscipit mandatum, hoc ipso industriam et diligentiam ad rem exequendam necessariam in se •futuram, recipere videtur ;* which words seem to import no more than reasonable diligence and skill, adequate to the ordinary performance of the task required. In another place it is added, " Nihil enim amplius, quam bonam fidem prsestare eum oportet, qui procurat.^ However, the civilians are not agreed upon this point ; and therefore, what is here propounded must be deemed open to much doubt and discussion.^ The same rule, at least in regard to diligence, prevails in the Scotch law,'^ in that of France, (ed. 1818) ; Id. 352 ; Simpson j). Swan, 3 Campb. 291 ; Madeira v. Townsley, 12 Martin, 84 ; Dartnall ». Howard, 4 B. & Cressw. 345 ; 1 Liverm. on Agency, ch. 8, § 2, pp. 352-354 (ed. 1818) ; Park ». Hammond, 6 Taunt. 495 ; Cheviot ». Brooks. 1 John. 364 ; Chapman «. Walton, 10 Bing. 57. ' Jones on Bailm. 6-7 ; Id. 121 ; Story on Bailm. § 11. = Jones on Bailm. 21-23 ; Heinecc. Elem. Inst. Lib. 3, tit. 14, § 788 ; Id. Pand. Lib. 17, tit 1, § 233; Ersk. Inst. B. 3, tit. 3, §§ 36, 37; Pothier, Ob- serv. Gen^rale at the end of his Treatise on Obligations ; 1 Pothier, (Euv. (ed. 1781), 4to. p. 455; Story on Bailm. § 24; 1 Bell, Coram. § 389, p. 864 (4th ed.) ; Id. pp. 481, 482 (5th ed.). ' Jones on Bailm. 23, note (m) ; Id. 63, note (w) ; Id. 99, note (1) ; Dig. Lib. 50, tit 17, 1. 132. * Vinn. ad Inst. Lib. 4, tit. 27, § 11, n. 2. See Pothier, Traits de Mandat., n, 46, 48; Id. Louage, n. 425 ; Story on Bailm. §§ 431-435 ; 1 Domat, B. 1, tit. 4, § 8, n. 1, art. 1 ; Id. B. 1, tit. 15, § 3, art. 4, 5 ; 1 Liverm. on Agency, ch. 8, § 3, pp. 336, 337 ; Id. 352 ; 1 Bell, Coram. § 394, pp. 367-370 (4th ed.) ; Id. pp. 481, 482 (5th ed.). ' Dig. Lib. 17, tit. 1, 1. 10, Introd. " Ibid. ' Ersk. Inst. B. 3, tit. 1, § 21 ; Id. tit. 3, § 36 ; 1 Bell, Comm. § 411, p. 387, (4th ed.); Id. § 389, p. 364; Id. pp. 481, 482 (5th ed.). §§ 183-186.] AUTHORITY, HOW EXECUTED. 219 and, indeed, in all the continental nations of Europe, which de- rive their jurisprudence from the Roman law.^ § 185. Whether the proper degree of diligence and skill, which the law requires of agents in performing their duties, has been applied in a particular trade, employment, or business, is for the most part a matter of fact, open for inquiry, and sometimes in- volving points of great delicacy and difficulty. The general usages of trade, the common habits of the particular business, and the special mode of dealing between the principal and agent, will often explain and expound the duties, required of the agent, as to diligence and skill.^ § 186. The case of a factor, employed to make sale of goods on consignment, may furnish a fit illustration of the general doc- trine. He is bound, not only to good faith, but to reasonable diligence. It is not sufficient, that he has been guilty of no fraud, or of no such gross negligence, as would carry with it the insignia of fraud. He is required to act with reasonable care and prudence in his employment, and to exercise his judgment after proper inquiries and precautions. If he shut his eyes against the light, or sell to a person without inquiry, when ordi- nary diligence would have enabled him to learn the discredit or insolvency of the party, he will not be discharged from responsi- bility to his principal. [He is also bound in absence of any special directions as to price, to sell for the fair market value.^] So, also, he will not be permitted to sell his own goods to a pur- chaser, and take security for the price, and at the same time to sell the goods of his principal to the same party without any security. For, he is bound to exercise at least as much diligence and care, as to his factorage transactions, as he does to his own private concerns.* And, in the supposed case, it would afford ground for presumption that the factor had knowledge of some latent defect of credit, although in the commercial world in general the purchaser stood with a fair character. But this ^ Pothier on Oblig. n. 141, 142; Pothier on Oblig. App'x, Observ. Generate; 1 Pothier, CEuv. 455 (2d ed. 4to. 1781) ; Story on Bailm. §§ 24, 430-435 ; Jones on Bailm. 30, 31. ' Ante, §§ 95 and 96; 1 Liverm. on Agency, oh. 8, § 2, pp. 336-841 (ed. 1818); Nichols v. House, 2 La. 382; 3 Chitty on Com. & Manuf. 215- 218. " Bigelow V. Walker, 24 Vt. 149. [ * * Deshler v. Beers, 32 111. 368.] 220 AGENCY. [CH. YII. presumption would not ordinarily arise from the mere fact of the factor's taking security for advances made to the same purchaser in money, or even receiving a premium for such advances. He. may well refuse to lend his own money without security, or a premium, upon grounds altogether distinct from any doubt of the solvency of the party. In order to aifect the factor witla the im- putation of negligence, it is sufficient, if he have notice of facts which ought to put a person of ordinary prudence on his guard. For the same rule prevails here as in equity, that the factor will be held affected with the notice, if the facts be such as ought to have put him upon further inquiry before he sold the goods.i § 187. Another illustration may be derived from the case of in- surance brokers, or agents employed to procure insurance. Their duty is to take care that the policy is procured in such a manner, and in such terms, as to cover the contemplated voyage and risks ; and they are bound to possess reasonable skill on this subject. So, they are to take care that the underwriters are persons in good credit at the time of the insurance, otherwise, they must bear the loss arising from their insolvency.^ But if the underwriters are in good credit at the time, their subsequent insolvency will not make the broker responsible to his employer.^ § 188. But new cases and new exigencies are perpetually aris- ing, in which it is not easy to say that there is any established general rule ; or that, if a general rule is established, it can with propriety govern such new cases, under all their circumstances. Resort must then be had to the general principle of law on the subject, aided by a search into those kindred doctrines, which may furnish analogies to guide or instruct us in arriving at the proper conclusion. It may, however, be generally stated, that where an agent has used reasonable diligence and skill he is not liable for accidents, or losses, or damage, happening without his default, such, for example, as for losses by robbery^ by fire, or by other accident, either at sea or on the land.* There are ' Liverm. on Agency, ch. 8, § 2, pp. 364-356 (ed. 1818) ; Burrillw. Phillips, 'l Gall. 361 1 Molloy, B. 3, ch. 8, § 5 ; Leverick v. Meigs, 1 Cowen, 646; Clarke v. Tipping, 9 Beavan, 284. ' Post, §§ 191, 218. ' 1 Valin, Coram. Lib. 3, tit. 6, art. 3, p. 33 ; Post, § 191. * Paley on Agency, by Lloyd, 4, 5, 15-17 ; 1 Domat, B. 1, tit. 16, § 3, §§ 186-189.] AUTHORITY, HOW EXECUTED. 221 special exceptions ; such, for example, as the case of common carriers ; and other exceptions may arise, from the particular contract or dealing between the parties, which may enlarge, or narrow the duty and responsibility of the agent.^ In tliis last particular our law adopts the rule of the civil law : " Nisi si quid nominatim convenit, vel plus, vel minus, in singulis contractibus ; nam hoc servabitur, quod initio convenit ; legem enim contrac- tus dedit.^ However, an agreement, that the agent should not be liable for his own frauds, would be held utterly void, as incon- sistent with morals and public policy. " Legem enim contractus dedit ; excepto eo, quod Celsus putat, non valere, si convenerit, ne dolus praestetur. Hoc enim bonse fidei judicio contrarium est ; et itur utimur.^ Illud nuUS, practione efi&ci potest, ne dolus prsestetur.* § 189. It is in this connection, that we are most commonly called upon to consider, when an agent is bound to act upon the instructions of his principal , or, in other words, when he is bound to execute the orders sent or delivered to him. And the doctrine under this head subject to the qualifications hereinafter stated,^ may be reduced to one general principle ; which is, that every agent is bound to execute the orders of his principal, whenever, for a valuable consideration (for we are not treating of mere gratuitous agency), he has undertaken to perform them.^ Tliis duty may arise in various ways ; either by express agreement, or by clear implication. The former requires no explanation. Tlie latter may arise either from the common usages of the particular agency; or from the general modes art. 4; Ersk. Inst. B. 3, tit. 1, § 21 ; Coggs v. Berpard, 2 Ld. Kaym. 917; Story on Bailm. §§ 23, 25-31 ; Jones on Bailm. 44, 119-122 ; 1 Liverm. on Agency, ch. 8, § 2, pp. 367, 358 (ed. 1818) ; Molloy, B. 3, ch. 8, § 7. ' Jones on Bailm. 120-122 ; Story on Bailm. §§ 25-38 ; Nicholson v. Willan, 5 East, 513 ; Bridge v. Austin, 4 Mass. 114 ; 1 Liverm. on Agency, ch. 8, § 2, pp. 357, 358 (ed. 1818) ; Post. § 194. ' Dig. Lib. 50, tit. 17, 1. 23 ; Story on Bailm. §§ 34, 35 ; 1 Liverm. on Agency, ch. 8, § 2, pp. 358-360 (ed. 1818). ' Dig. Lib. 60, tit. 17, 1. 23. * Dig. Lib. 2, tit. 14, 1. 27, § 23 ; 1 Liverm. on Agency, ch 8, § 2, p. 360 (ed 1818). <■ Post, §§ 194-196. ' Le Guen v. Governeur, 1 John. Cas. -437, n. ; Bell v. Palmer, 6 Cowen, 128 ; La Earge v. Kneeland, 7 Cowen, 456 ; Allen v. Suydam, 20 Wend 321. 222 AGENCY. [CH. VII. of dealing between the particular parties ; or from the natural implications, arising from the nature and objects of a single transaction. § 190. The most familiar illustrations of this doctrine will be found in the cases, where an agent is called upon by orders to procure insurance for his principal. We have already seen in what cases an agent may, in his discretion, insure for his princi- pal ; ^ we are now to consider when he is absolutely bound to insure. And it is now clearly settled, that there are several cases, in which an agent is bound to obey an order to insure. One is, where the agent has expressly contracted to procure in- surance.2 Another is, where a merchant abroad has effects in the hands of his correspondents here, and he has a right to ex- pect that he will obey an order to insure ;. because he is entitled to call his money out of the other's hands, when, and in what manner, he pleases. Another is, where the merchant has no effects in the hands of his correspondent; yet, the course of dealing between them has been such, that the one has been used to send orders for insurance, and the other to comply with them ; in such a case the former has a right to expect, that his orders for insurance will still be obeyed, unless the latter gives him notice to discontinue that course of dealing.^ Another is, where the merchant abroad sends bills of lading to his corre- spondent here, and ingrafts on them an order to insure, as the implied condition, on which the bills of lading are to be ac- cepted ; in such a case the agent is bound to obey, if he accepts them ; for it is one entire transaction.* Another may be added, ' Ante, § 111 ; Lucena v. Crawford, 3 Bos. & Pull. 75 ; s. c. 6 Bos. & Pull. 269; De Forest v. Fulton Ins. Co. 1 Hall, 84, 100-136. ^ Tiokel V. Short, 2 Ves. 239 ; Marsh on Ins. B. 1, ch. 8, § 2, pp. 296, 297. ' Ralston v. Barclay, 6 Miller, La. 653 ; Berthoud v. Gordon, 6 Miller, La. 683. * Smith V. Lascelles, 2 T. R. 189 ; 1 Liverm. on Agency, ch. 8, § 1, pp. 323, 325, 326 (ed. 1818) ; 2 MoUoy, B. 2, ch. 8, § 9 ; Morris v. Summerl, 2 Wash. Cir. 203 ; S. C. Marsh, on Ins. by Condy, note to p. 301 ; Paley on Agency, by Lloyd, 18 ; Wallace v. Telfair, 2 T. R. 188, note ; Smith on Merc. Law, 51 (2d ed.) ; Id. ch. 5, pp. 91-93 (3d ed. 1843) ; De Tastet v. CrousiUat, 2 Wash. Cir. 132 ; French v. Reed, 6 Binn. 308 ; Berthoud v. Gordon, 6 La. 679 ; Marsh, on Ins. B. 1, ch. 8, § 2, pp. 296, 297 ; 1 Phillips on Ins. ch. 22, pp. 519-524. §§ 189-191.] AUTHORITY, HOW EXECUTED. 223 which is, where the general usage of trade requires the agent to insure. And here we may remark, that it seems to be the duty of an agent who is ordered or bound to procure insurance, to give notice to his principal, if he is unable to effect it ; for, other- wise, the principal may be subjected to a loss, which he could have provided against, by procuring insurance to be made else- where. If, in any of the foregoing cases, the agent negUgently or wilfully omits his duty, he becomes responsible to his princi- pal for all losses sustained by the want of the insurance. And this rule is promulgated by the general sense of foreign maritime writers, as well as by our own law. The rule, being, " Mandato dato de assecurandis mercibus, si non est ad impletum mandatum, tenetur mandatarius de casu sinistro." ^ § 191. What is the proper exercise of due diligence and skill, in obtaining insurance, is, in some cases, a matter of great nicety and difficulty. On the one hand, an agent who acts iond fide in effecting an insurance for his principal, using reasonable skill and diligence, is not liable to be called upon because the insur- ance might possibly have been procured from other persons upon better terms, or to include additional risks, by which the princi- pal might, in the event of loss by those risks^ have been indem- nified.2 On the other hand, an agent, in a like case, is bound to have inserted in the policy all the ordinary risks and chances which are usual and proper, to secure the principal for the con- templated voyage.^ And if he omits to have them inserted, when a reasonable attention to the facts stated in his orders, or the nature of the voyage, or the state of the property, or the objects intended, would have induced other insurance agents, of reasonable skill and diligence, to have had them inserted, he will be liable, ini case of any loss, for his negligence.* The same rule will apply, if such an agent negligently or wilfully conceals a material fact, or affirms a false fact, whereby the policy is avoid- ' Emerig. Des Assur. Tom. 1, ch. 5, 8, p. 148; Casaregis, Discurses, 1, n. 26. ' Moore v. Morgue, Co-wp. 479 ; Comber v. Anderson, 1 Campb. 623 ; 1 Liverm. on Agency, 344-347 (ed. 1818). ' Post, §§ 200, 218. ♦ Post, § 200; Park v. Hammond, 6 Taunt. 496; s. c. 4 Campb. 344; Mallough V. Barber, 4 Campb. 150; Farren v. Oswell, 3 Campb. 869; 1 Liverm. on Agency, 352, 363, 372-374 (ed. 1818); Paley on Agency, by Lloyd, 18. 224 AGENCY. [CH. VII. ed; for his duty in each case is violated.^ So (as we have seen) it is the duty of an agent, procuring insurance, to ascertain whether the underwriters are in good credit or not, at the time of procuring the policy ; ^ and if he negligently omits this duty, and a loss occurs from the insolvency of the underwriters at the time of subscribing the policy, he will be liable to pay it.* So, if an agent has procured a policy, and it remains in his hands, he is bound to apply to the underwriters for payment of it within a reasonable time ; and if a loss occurs by his neglect, he will become responsible therefor.* § 192. Thirdly. The remarks which have been already made, naturally conduct us to the next head of inquiry, and that is, what are the incidental acts which the law requires of agents, in the discharge of their duties and obligations ? And here, in the first place, it may be stated to be the primary obligation of an agent, whose authority is limited by instructions, to adhere faith- fully to those instructions, in all cases to which they ought properly to be applied.^ If he unnecessarily exceeds his com- mission, or risks the property of his principal, he thereby renders himself responsible to his principal for all losses and damage, which are the natural consequences of his act. And it will con- ' Mayhew v. Forrester, 5 Taunt. 615. See Wake «. Atty, 4 Taunt. 493 ; 1 Liverm. on Agency, 335 (ed. 1818) ; Seller v. Work, 1 Marsh, on Ins. B. 1, ch. 8, § 2, p. 300 ; Id. ch. 11, § 1, p. 466 ; Paley on Agency, by Lloyd, 257-260. " Ante, § 187 ; Post, § 218. ' 1 Liverm. on Agency, 354 (ed. 1818) ; Valin, Comm. T5m. 1, Liv. 3, tit. 6, art. 3, pp. 32, 83 ; Ante, § 187. , * 1 Liverm. on Agency, 469-466 (ed. 1818) ; Smith on Merc. Law, 198 (2d ed.) ; Id. B. 3, ch. 4, § 1, p. 322 (3d ed. 1843) ; Power v. Butcher, 10 B. & Cressw. 329 ; Ante', §§ 68, 103, 109, note. ' Paley on Agency, by Lloyd, p. 3 ; Id. 28 ; Bundle w. Moore, 3 John. Gas. 36 ; 1 Liverm. on Agency, ch. 8, § 2, pp. 341-638 (ed. 1818) ; Id. pp. 368-374 (ed. 1818) ; 3 Chitty on Com. & Manuf. ch. 3, pp. 216, 216, 220 ; Malyne, Lex. Merc. ch. 16, p. 81 ; Blot v. Boiceau, 1 Sandf. Sup. Ct. (N. Y.) Ill ; Marfield v. Douglas, ibid. 361 ; Wilson u. Wilson, 26 Penn. St. 394 ; Johnson V. New York Central Railroad, 31 Barb. 198. [ * Where a factor was instructed by his principal to sell wheat assigned to him at a specified price on a given day, and if not sold on that day, to ship the same to New York and on the given day the factor gave the refusal of the wheat at the specified price until the morning following, and on that morning perfected the sale, he was held lia- ble for disobeying the instructions of his principal, and as having converted the wheat to his own use. Scott «. Rogers, 31 N. Y. 676.] §§ 191, 192.] AUTHOEITT, HOW EXECUTED. 225 stitute no defence for him, that he intended the act to be a benefit to the principal.^ [Thus, where the principal directed his agent to remit him |300 in bills of |50 or flOO each, and the agent sent the amount in bills of |5, $10, and |20, which never reached the principal, the agent was held to have deviated from his instructions, and to be liable for the loss.^] Indeed, in ' Paley on Agency, by Lloyd, 3, 9, 10, 25, 26 ; 3 Chitty on Com. & Manuf. ch. 3, pp. 215, 218 ; 1 Liverm. on Agency, ch. 8, § 2, pp. 868-374 (ed. 1818) ; 1 Beawes, Lex. Merc. 44, 46 ; Ure v. Currell, 16 Martin, 602 ; Manella v. Barry, 3 Cranch, 415 ; Post, § 199. [* Wilson V. Wilson, 26 Penn. St. 394. Lewis, C. J. said, "The primary obligation of an agent, whose authority is limited by instructions, is to adhere faithfully to those instructions, in all cases to which they ought properly to apply. Story on Agency, § 192. He is in general bound to obey the orders of his principal exactly, if they be imperative and not discretionary ; and, in order to make it the duty of a factor to obey an order, it is not necessary that it should be given in the form of a command. The expression of a wish by the consignor may fairly be presumed to be an order. Story on Contracts, § 359 ; Brown v. McGran, 14 Peters, 494. It is true that instructions may be disre- garded in cases of extreme necessity arising from unforeseen emergencies, or if performance becomes impossible, or if they require a breach of law or morals. Story on Agency, § 194. These are, however, exceptional cases. There may, perhaps, be others which have been sanctioned by adjudications, founded on the principle that the departure complained of was not material. But the gen- eral rule is as indicated in what has been said, and the case before the court is not brought within any of the exceptions. To justify a departure from in- structions, where a loss has resulted from such deviation, the case must be brought within some of the recognized exceptions. It is not sufficient that the deviation was not material if it appear that the party giving the instructions regarded them as material, unless it be shown affirmatively that the deviation in no manner contributed to the loss. This may be a difficult task in a case like the present ; but the defendant voluntarily assumed it when he substituted his own plan for that prescribed by the plaintiff. To force a man to per- form an executory contract after substituting for the consideration other terms than those provided for in the bargain, is to deprive him of the right to man- age his own business in his own way. To do this on the ground that the departure is not material, when it is manifest that the party considered it otherwise, is a violation of private right, which leads to uncertainty and liti- gation without necessity or excuse. In Nesbit u. Burry, 1 Casey, 210, this court refused to compel a man to give up his oxen, although he had sold them and received part of the purchase-money, because it was a part of the contract that they were sold by weight, and the weight was to be ascertained by ' the scales at Mount Jackson.' The scales designated were so out of repair that the weight could not be ascertained by them, and it was held that no oth- ers could be substituted against his consent so as to divest his right of property. Whether an action for damages could have been sustained was not the ques- AGENOT. 15 226 AGENCY. [CH. Til. all such cases, the question is not whether the party has acted from good motives and without fraud, but whether he has done his duty, and acted according to the confidence reposed in him ; for the rule is, "Grave est fidem fallere;^ Fides servanda est; Simplicitas juris gentium prsevaleat." ^ On the other hand, if by the violation of his instructions he obtains a profit or advantage, he is not allowed to retain it ; but the principal is entitled to the full benefit of it.^ So, an agent, by his misconduct, must bear the whole risk of failure and loss, and is not entitled to any indemnity for his unauthorized act or speculation.* The law never holds out a premium for any violation of duty. What will be the effect of a subsequent ratification by the principal, will come under review in our subsequent pages. ^ § 193. In regard to instructions, there are two qualifications, which are naturally, and perhaps necessarily, implied in every case of mercantile agency. The first is, that they are applicable only to the ordinary course of things ; and the agent will be justified in cases of extreme necessity and unforeseen emergency, tion there; nor is it the question here. As between vendor and vendee, the right of property and the consequent risk vests on delivery of the goods purchased to the designated carrier, packed, and directed according to usage or instructions. But if a different method of packing and directing, or a different carrier than the one designated, be adopted by the vendor, he as- sumes the risk in case of loss, unless it be shown that his deviation in no way contributed to the loss. Where the goods are stolen, how can this be shown? In sending bank-notes by mail, it is manifest that while a large package would attract the attention and care of honest agents on the route, it might tempt the cupidity of dishonest ones. The party who proposes to take the risk of this method of remittance has a right to weigh the advantages and disadvantages of the various methods of enclosing the notes ; and if he directs the money to be remitted in notes of $100 or $50, the debtor has no right to increase the size of the package by remitting in notes of $10 and $5. There was error in permitting the jury to find that the de- parture from instructions was immaterial."] ' Dig. Lib. 13, tit. 5, Introd. * 1 Liverm. on Agency, ch. 8, § 1, p. 363 (ed. 1818) ; Paley on Agency, by Lloyd, 9, 10 ; Manella ». Barry, 3 Cranch, 416. [*Langton k. Waite, Law Rep. 6 Eq. 166.] ■■ Paley on Agency, by Lloyd, 61 ; Malyne, Lex Merc. 82 ; Massey v. Davies, 2 Ves. jr. 317 ; Beaumont v. Boultbee, 7 Ves. 608, 617 ; Post, §§ 207, 214, 340. " Paley on Agency, by Lloyd, 3, 4; Id. 49-61 ; 3 Chitty on Com. &Manuf. ch. ,3, pp. 260, 218, 221 ; Williams v. Littlefield, 12 Wend. 362. ' Post, §§ 239-260, 439, 446. §§ 192-194.] ADTHOEITT, HOW EXECUTED. 227 in deviating from them.^ Thus, for example, if goods are perish- able and perishing, the agent may deviate from his instructions as to the time or price at which they are to be sold.^ So, if they are accidentally injured, and must be sold to prevent further loss. So, if they are in imminent peril of being lost by the capture of the port, they may for safety, in a case of necessity, and not otherwise, be transported to another port.^ [Where the instructions of an American owner of flour to his factor at Liver- pool were to withhold it from sale until an expected act of Parliament had produced its results upon the market, the latter is not chargeable with a breach of instructions in selling pre- maturely, if he wait a considerable time after the passage of the act, and then sell in good faith and with reasonable prudence. Under such instructions, the factor has a discretion, after the market has remained a considerable time under the influence of the hew law, to judge whether the measure has produced its full effect upon the market ; and he is not liable for an error in judgment in that respect.*] § 194. It is a proper corollary from this principle, that any unavoidable calamity, or overwhelming force or accident, with- out any default of the agent, will excuse him from a strict per- formance of the duties of his agency ; for all such cases are deemed exceptions to the general rule.^ A fortiori, if the strict performance becomes impossible, without any default of the . agent, he is excused.^ The Roman law was even more indul- gent in cases of mandataries, excusing them for non-performance in cases of sickness ; or of capital enmities ; or of an action be- coming fruitless against the principal (as where he had directed • Ante, §§ 86, 118, 141 ; Post, § 237 ; 1 Liverm. on Agency, ch. 8, § 2, pp. 368-370 (ed. 1818) ; 3 Chitty on Com. & Manuf. ch. 3, p. 218; Dusar v. Perit, 4 Binn. 361. " 3 Chitty on Com. & Manuf. ch. 3, p. 218 ; Anon. 2 Mod. 100 ; Story on Bailm. § 455 ; Ante, §§ 86, 118, 141 ; Post, § 237 ; 1 Liverm. on Agency, 368, 369 (ed. 1818). ' See Catlin «. Bell, 4 Campb. 183. ' Milbank v. Dennistoun, 21 N. Y. (1860) ; 1 Bosworth. ' Ante, §§ 86, 118, 141 ; Post, §§ 200, 208, 237 ; WUson v. WUson, 26 Penn. St. 394. = 1 Liverm. on Agency, ch. 8, § 1, pp. 310, 311; Id. 328, 367, 358 (ed. 1818) ; Smith v. Calogan, 2 T. R. ISS^n. ; Ante, §§ 85, 118, 141, 188; Post, §237. 228 AGENCY. [CH. Til. goods to be purchased, and became insolvent) ; and for other causes deemed just. " Sane, si valetudinis adversse, vel capitahum inimicitiarum, seu ob inanes rei actiones, sen ob aliam, justam causam, excusatioues allegat ; audiendus est." ^ § 195. The second qualification is, that, if the instructions re- quire the agent to do an illegal or immoral act, he may violate his instructions with impunity; for the law will not tolerate either party in violating any moral or legal duties.^ " Rei turpis nullum mandatum est ; et ideo hac actione non agetur.^ Illud quoque mandatum non est obligatorium, quod contra bonos mores est. Veluti,. si Titius de furto, aut de damno faciendo, aut de injuria facienda, mandet tibi ; licet enim paenam istius facti nomine prsestiteris, non tamen uUam babes adversus Titium actionem.* Pacta, quee contra leges constitutionesque, vel contra bonos mores fiunt, nullum vim habere, indubitati juris est," is the strong language of the Roman law ; ^ and it is more strongly dictated by the sound morals inculcated by Christianity.^ Thus, for example, if goods are bought or sold by an agent, to be smuggled in violation of the laws of the country, no recovery or account can be had by either party of the same ; for the law, in such a case, refuses to interfere on either side, upon the prin- ciple, " Ex turpi causa non oritur actio." ' And where the fault is mutual, the law will leave the case as it finds it ; " In pari delicto potior est conditio defendentis." ^ So, if a person is employed, and money is advanced to him for the purchase of libellous books or indecent pictures, he will not be compelled to account. And, on the other hand, if he has advanced the money for such immoral purposes, at the request of his employer, he ' Dig. Lib. 17, tit. 1, 1. 23-25; Pothier, Pand. Lib. 17, tit. 1, n. 80. ' Catlin V. Bell, 4 Campb. 183 ; Bexwell v. Christie, Cowd. 395 ; Paley on Agency, by Lloyd, 8, 25, 26 ; Webster v. De Tastet, 7 T. R. 167 ; 3 Chitty on Com. & Manuf. 216. • Dig. Lib. 17, tit. 1, 1. 6, § 8. * Inst. Lib. 3, tit. 27, § 7. » Cod. Lib. 2, tit. 3. L 6 ; Story on Conflict of Laws, § 245. ' 1 Liverm. on Agency, ch. 1, § 2, pp. 14-16 (ed. 1818) ; Holman v. John- son, Cowp. 343 ; 1 Story on Eq. Jurisp. § 296 ; Story on Conflict of Laws, §§ 244-260. ' 1 Liverm. on Agency, ch. 1, § 2, pp. 14, 15 (ed. 1818) ; Holman «. John- son, Cowp. 343 ; Story on Conflict of Laws, §§ 244-268 ; Armstrong v. Toler, 11 Wheat. 268, 260. « 1 Liverm. on Agency, ch. 1, § 2, pp. 19, 20 (ed. 1818). §§ 194-197.] AUTHORITY, HOW EXECUTED, 229 cannot recover these advances, or compel the employer to take the books or the pictures, and to pay for them.^ Nay, the prin- ciple is carried further; and if the main object for which the agent is employed, is legal ; yet if, by the terms of the contract, and as a part of it, the agent is to act in an illegal character or manner in another part of the transaction, the whole contract will be contaminated thereby, and the agent can recover no compensation even for his legal acts under the contract. Neither can the principal enforce any of its obligations.^ § 196. This doctrine is founded in the principles of eternal justice ; and it is greatly to be lamented, that it has not been followed out in our intercourse with foreign nations, to the extent of refusing to interfere in contracts, even between our own citizens, which are made in violation of the laws of trade and the public policy of foreign nations. Pbthier, with the deep feel- ings of a moralist and universal jurist, has inculcated and en- forced, in a persuasive manner, this enlarged doctrine.^ But the general practice of nations is the other way ; and that practice is sustained by the common law, as well as by the authority of Valin and Bmerigon.* § 197. However, it will not be presumed, that an agent is authorized to violate the laws of a foreign country (as, for ex- ample, by smuggling) ; and, therefore, either an express author- ity must be shown, or an implied authority from the known habits of the particular trade, or the general dealings between the parties in similar enterprises.® We hope that the time may arrive, when the general cultivation of international law, en- lightened and reformed by Christian morals, wiU introduce a better system, which shall declare, that the common interests of • 1 Liverm. on Agency, ch. 1, § 2, pp. 19, 20 (ed. 1818). ' 1 Liverm. on Agency, ch. 1, § 2, pp. 19-21 (ed. 1818) ; Story on Conflict of Laws (246-248) ; The "Vanguard, 6 Kob. 207. ' Pothier d'Assur. n. 58, and note of Estrangin. ad locum (ed. 1810), pp. 86-89. * 1 Liverm. on Agency, ch. 1, § 2, pp. 15-19 (ed. 1818) ; Story on Conflict of Laws, §§ 246, 246, 257 ; 1 Emerig. d'Assur. ch. 8, § 6, pp. 212, 215 ; ed. by Boulay Paty, pp. 215-218 ; 2 Valin, Comm. art. 49 p. 127 ; 1 Marsh, on Ins. ch. 3, § 1, pp. 59-61 ; Planche v. Fletcher, Doug. 251, 254; 1 Chitty on Com. & Manuf. 83, 84. ' 1 Liverm. on Agency, ch. 8, § 2, pp. 361-368 (ed. 1818) ; Wellman v. Nutting, 4 Mass. 434 ; MoUoy, B. 3, ch. 8, § 6. 230 AGENCY. [CH. Til. all nations are best promoted by a steady support of all the muni- cipal laws of each, which are not inconsistent w\th justice, rational liberty, and liberal intercourse. § 198. In regard to instructions, they must often leave much to the discretion of the agent ; and, under such circumstances, his proper duty must be ascertained by the considerations already mentioned, as well as by those which will be hereinafter stated.^ Thus (to suggest a rule in a general form), where an agent has general orders to dispose of goods for his principal to the best advantage (a very common mode of expression, to be found in written orders), he is bound to execute them with that degree of diligence and skill, which prudent men usually exercise in simi- lar affairs ; ^ and, consequently, he may dispose of the goods ac- cording to the best terms, which can be obtained at the time ; and if he does so, his principal will be bound thereby, although the sale may turn out in the event to be disadvantageous.^ And sometimes even a literal deviation from the terms of the orders may be excused, and the act bind the owner, if the conditions and objects of the order are substantially obtained, without any increase of expense or risk to the principal. Thus, if an agent should exceed the limited price in a purchase of goods in a small degree, and yet he should be able to effect an equal saving in some other part of the same business, such as in the expense of ship- ping them, he would, at least in equity, be deemed excused, and the principal be bound.* § 199. In the next place, it. may be laid down as a general rule, in the absence of instructions, that if there be a known usage of trade, or a mode of transacting business, applicable to the particular agency, or analogous to it, in such a case it will be the duty of the agent to conform to it ; and any departure from it, not required by necessity, will be at the peril of the agent, and involve him in full responsibility for any loss occa- ' Ante, §§ 189, 192, 199, 237. ' Kingston v. Kincaid, 1 Wash. Cir. 453 ; Ante, §§ 182, 183. » 3 Chitty on Com. & Manuf. ch. 3, pp. 217, 218 ; 2 Molloy, B. 3, ch. 8, §§ 2, 6 ; Malyne, Lex Merc. ch. 16, pp. 81-83 ; Evans v. Potter, 2 Gall. 13; Burrill v. Phillipps, 1 Gall. 360. * Cornwall B.Wilson, 1 Ves. 510 ; 3 Chitty on Com. & Manuf. ch. 3, p. 219, note (1) ; Smith on Merc. Law, 63, 54: (2d ed.) ; Id. ch. 6, § 2, p. 99 (3ded. 1843) ; Ante, § 85. §§ 197-200.] AUTHORITY, HOW EXECUTED. 231 sioned thereby.^ This is not an arbitrary doctrine; but it is founded upon an implied authority on one side, involving an implied confidence and obligation on the other side.^ We have already seen, that if an agent acts according to the customary mode of business, and settled usages of trade, he will be pro- tected, although a loss should, without his default, happen there- by, because his authority embraces, by implication, that extent.^ And it is equally true, that the agent impliedly agrees to act according to such modes of business and usages of trade, and that he is trusted, in the confidence that he will not violate them.* It will not, therefore, as we have seen, constitute any defence to the agent, that he intended a benefit to his employer, if he acted in violation of his duty.^ And, on the other hand, even the usage of trade may not, under all circumstances, excuse an agent for acting in conformity to it, if, by following it, he knowingly and advisedly and wilfully does an injury to his employer thereby ; for the very notion of an usage is, that it is to be a guide to his judgment and discretion in common cases, when it is presumed not necessarily to work a sacrifice of the interests of the em- ployer.^ § 200. Illustrations might be easily multiplied, to establish this doctrine in its various aspects. Thus, for example, if an agent, intrusted with the sale of goods, should negligently allow them to remain in an improper place of deposit, contrary to the usual habits of the business, and the goods should be destroyed by fire, he would be responsible for the loss, although the fire ' 3 Chitty on Com. & Manuf. 215, 216 ; Ante, §§ 85, 96, 118, 141, 185, 194 ; Post, §§ 208, 237. » Ante, §§ 60, 73, 77. ' Ante, §§ 96, 185 ; 1 Gall. 360 ; Reano v. Mager, 11 Martin, 636. * Ibid. We have already seen, that if the construction of the terms of TTritten instructions be doubtful, and the agent has acted in good faith under a mistaken interpretation of their purport, he will not be responsible to his prin- cipal for damages or losses occasioned thereby. And, in cases of doubt, the rule is, that the words are to be construed most strongly against the principal. Ante, 74-76, 82. See also Vianna v. Barclay, 3 Cowen, 281 ; Mackbeath u. Haldimand, 1 T. R. 182, per BuUer, J. ; Lucas ». Groning, 7 Taunt. 164 ; Morrell ». Frith, 3 Mees. & We'ls. 402. ^ 3 Chitty on Com. & Manuf. ch. 3, pp. 215, 216, 218; Ante, § 192. « 3 Chitty on Com. & Manuf. ch. 3, pp. 215, 216, 218, note (1). See Sadock ». Burton, Yelv. 202 ; Malyne, Lex Merc. 83 ; Rex ». Lee, 12 Mod. 614 ; 2 MoUoy, B. 3, ch. 8, § 5 ; Malyne, Lex Merc. ch. 16, pp. 81, 83. 232 AGENCY. [CH. TIL arose from an accidental cause ; for the loss, although not in a strict sense immediately caused, by his negligence, may fairly be attributed to it.^ So, if an agent should, improperly and con- trary to his known duty, or the habits of business, deposit the money of his principal in his own name, and on his own account, with a banker, who should fail, the agent would be responsible to his principal for the money lost by the failure.^ So, if an agent, authorized to procure insurance for his principal, should, by his negligence, omit to have inserted in the policy the com- mon and usual clauses in the like policies, and a loss should occur which would have been covered by such clauses, the agent would be responsible for the loss.^ So, if an agent should sell goods on credit, when there was no usage of trade to justify it ; or if he should sell on a longer credit than the usage should jus- tify ; or if he should omit to demand payment, when the credit had expired ; or if he should sell to persons of doubtful credit, or actually insolvent ; in all such cases, he would be personally responsible for the loss to his principal.* So, if he should give ' Post, § 218 ; Paley on Agency, by Lloyd, 10 ; Caffrey v. Darby, 6 Ves. 496. This is one of the cases, in which the maxim. Causa proxima, non remota, spectatur, does not apply, although it is not perhaps easy to state the exact grounds of the distinction. The loss is not, indeed, directly caused by the negligence ; but the latter may properly be said to be the occasion of it. See Davis V. Garrett, 6 Bing. 716. The case of a policy-agent stands on a similar ground ; for the loss cannot be correctly said to be immediately caused by his neglect, as it may be directly attributable to the peril of the sea. See Paley on Agency, by Lloyd, 15-17. In Caffrey v. Darby, 6 Ves. 496, the master of the rolls, in his judgment, speaking of loss, where there had been negligence by trustees, said, ' If they have already been guilty of negligence, they must be responsible for any loss in any way to that property ; for, whatever may be the immediate cause, the property would not have been in a situation to sustain that loss, if it had not been for their negligence." See ante, § 192. ' Massey v. Banner, 1 Jack. &"Walk. 245, 248 ; 3 Chitty on Com. & Manuf. oh. 3, p. 216; Wren u. Kirton, 11 Ves. 378; Post, §§ 203, 208, 218. ' Ante, § 191 ; MaUough v. Barber, 4 Campb. 150. See also Comber v. Anderson, 1 Campb. 523 ; Park v. Hammond, 4 Campb. 344 ; s. c. 6 Taunt. 495 ; 1 Liverm. on Agency, ch. 8, § 1, pp. 341-364 (ed. 1818) ; Paley on Agency, by Lloyd, 18-21. * Ante, §§ 60, 109, 209, 220 ; 1 Liverm. oi) Agency, ch. 8, § 2, p. 368 (ed. 1818) ; Id. 364; Paley on Agency, by Lloyd. 26, 27 ; MoUoy, B. 3, ch. 8, §3; 3 Chitty on Com. & Manuf. 206, 206, 216, 218 ; Littlejohn v. Ramsay, 16 Mar- tin, 666 ; Gilly v. Logan, 14 Martin, 196 ; Hosmer v. Beebe, 14 Martin, 368 ; Richardson v. Weston, 16 Martin, 244 ; Leverick v. Meigs, 1 Cowen, 646 ; For- restier v. Boardman, 1 Story, 43. §§ 200, 201.] AUTHORITY, HOW EXECUTED. 233 time for payment after the money became due, or should omit to use the common diligence to collect it, the loss would be his own.i So, if an agent, authorized to purchase goods, should deviate from his orders as to price, quality, or kind, or other- wise, the principal would not be bound.''' [And if an attorney at law undertakes the collection of a debt, and by gross negli- gence, puts it in such a situation as to embarrass the, creditor in obtaining payment, and to render the debt less valuable, he is lia- ble to his employer .3] § 201. The employment of sub-agents or substitutes is often expressly provided for in letters of attorney, and other formal instruments. In such cases it is clear, that the original attorney or agent will not be liable for the acts or omissions of the sub- stitute, appointed or employed by him, unless, indeed, in the appointment or substitution he is guilty of fraud, or gross negli- gence, or improperly co-operates in the acts or omissions.* In many other cases a similar authority arises, by implication, from the conduct of the parties, or from the usage of trade. Thus, for example, it is very common, in certain classes of business, to employ a sub-agent to transact the business of the agency ; such as the employment of a broker to buy or sell goods.^ In all cases of this sort, the agent will not ordinarily be responsible for the negligence or misconduct of the sub-agent, if the employment of the sub-agent is authorized by the principal either expressly or impliedly, by the usage of trade, or the usual dealings between himself and his principal, and he has used reasonable diligence in his choice as to the skill and ability of the sub-agent.^ The ' Caflfrey v. Darby, 6 Ves. 494, 496 ; Paley on Agency, by Lloyd, 39, 40 ; Malyne, Lex Merc. ch. 16, pp. 81, 82 ; Childs v. Corp, 1 Paine, 286. ' 3 Chitty on Com. & Manuf. ch. 3, pp. 218, 219 ; 1 Liverm. on Agency, ch. 8, § 2, p. 368 (ed. 1818). 3 Wilson V. Coffin, 2 Cush. 816. * Foster v. Preston, 8 Cowen, 198 ; Taber v. Perrott, 2 Gall. 665 ; Post, §§ 217 a, 232, 333. ' Ante, §§14, 15; Post, 217. " Paley on Agency, by Lloyd, 17, 20 ; Goswell v. Dunkley, 1 Str. 680 ; Cochran v. Irlam, 2 M. & Selw. 301, note ; Commercial Bank of New Orleans V. Martin, 1 La. An. 344; Pothier, Pand. Lib. 14, tit. 3, n. 18. See also, as to who is to be deemed the principal, and who the agent, and who the sub- agent. Eapson v. Cubitt, 9 Mees. & Wels. 710 ; Quarman v. Burnett, 6 Mees. & Wels. 499 ; Milligan v. Wedge, 12 Adolph. & Ellis, 737 ; Winterbottom v. Wright, 10 Mees. & Wels. 109, 111 ; Post, §§ 453 a, 453 6, 453 c, 454 a ; Story on Bailm. § 403 a. 234 AGENCY. [CH. VII. same rule will apply, where the employment, although not so authorized, arises from unforeseen exigencies or emergencies, imposing upon the agent the necessity of employing a sub- agent.i But the suh-agent will, under such circumstances, be himself directly responsible to the principal for his own negli- gence or misconduct ; for wherever any such express or imphed authority tq appoint a sub-agent is allowed or given by the prin- cipal, a privity is created between them.^ Under other circum- stances, as no privity would exist between them, the sub-agent would be directly responsible only to his immediate employer, the original agent.^ If, therefore, the agent has actually become responsible to the principal, by the negligence or misconduct of his own sub-agent, and has been compelled to pay damages therefor to the principal, he may recover all that he has been thus ■ compelled to pay, from the sub-agent.* We shall hereafter see, that an agent may also, by his own conduct, sometimes render himself responsible for the acts of his sub-agent, and become, in effect, a guarantor for him, and incur an absolute responsibility to his principal for money received by his sub-agent.^ § 202. On the other hand, where the agent has given only the usual credit, or has conducted himself according to the usual course of business, and has employed the usual diligence in his agency, he will not be responsible for any loss occasioned by the subsequent insolvency or fraud of the persons whom he has ' Bromley v. Coxwell, 2 Bos. & Pull. 488 ; Goswell v. Dunkley, 1 Str. 680; Catlin V. Bell, 4 Campb. 183 -f Paley on Agency, by Lloyd, 17 ; Ante, §§ 85, 118, 141. ' Ibid. ; 1 Liverm. on Agency, ch. 2, § 1, pp. 66-69 ; Id. pp. 64-67 (ed. 1818). But see Lockwood v. Abdy, 9 Jurist, 1845, p. 267. = Cleaves v. Stockwell, 33 Maine, 341; Cobb v. Becke, 6 Q. B. 930; Rob- bins V. Fennell, 11 Q. B. 248; Paley on Agency, by Lloyd, 6, 16, 17, 32, 79; Id. pp. 396, 397. See Bromley v. Coxwell, 2 Bos. & Pull. 438 ; 1 Liverm. on Agency, ch. 2, § 4, pp. 56-69 ; Id. 64, 66, 67 (ed. 1818) ; Post, §§ 203, note, 217 a, 808 ; Cochran v. Irlam, 2 M. & Selw. 301, n. The text contains what I cannot but deem the ti-ue doctrine on this point. But there is something in the circumstances of the case of Bromley v. Coxwell, 2 Bos. & Pull. 438, which may, perhaps, create a doubt in some minds. See also Lord North's case. Dyer, 161 ; Solly v. Eathbone, 2 M. & Selw. 298 ; Cull v. Backhouse, cited 6 Taunt. 148 ; Schmaling v. Tomlinson, 6 Taunt. 147 ; Lane v. Cotton, 12 Mod. 488 ; 1 Bl. Comm. 90. See Lockwood v. Abdy, 9 Jurist (1845), p. 267. * Mainwaring w. Brandon, 8 Taunt. 202, 204, 205 ; Post, § 308. ' Taber v. Perrott, 2 Gall. 665 ; Post, § 231 a. §§ 201-203.] ATJTHOEITT, HOW EXECUTED. 235 trusted, or to whom he has sold the property, if, at the time of the sale, they were in good credit.^ So, if payment is received in the usual manner of conducting the like business transactions, as by receiving a check on a bank from a person in good credit, who should become insolvent before the check could be duly presented ; or, by receiving the common currency of the country, which should afterwards become depreciated ; in eaph of these cases the loss would be the loss of the principal, and not that of the agent.^ So, if an agent, who is authorized to purchase goods, uses reasonable diligence in the choice and purchase of them, and afterwards they are found to be, or should become, damaged without his default, the loss must be borne by the principal.^ So, if the goods of the principal are deposited for ■ safety in a proper place, according to the usage of trade, and they are there destroyed by fire or other casualty, the agent is discharged.* So, if the money of the principal is deposited in his name in the hands of a banker of good credit, and such a deposit is according to the common usage of the place, or of that business, the agent will not be responsible for any loss arising from the failure of the banker.^ And this is in conform- ity to the rule of the Roman law. " Si res pupillaris incursu la- tronum pereat, vel argentarius, cui tutor pecuniam dedit, cum fuisset celeberrimus, solidum reddere non possit ; nihil eo nomine tutor praestare cogitur." ^ § 203. In the next place, it is the duty of an agent, where the business in which he is employed admits of it, or requires it, to keep regular accounts of all his transactions on behalf of his principal, not only of his payments and disbursements, but also ' Ante, §§ 187, 191 ; Paley on Agency, by Lloyd, 9, 26, 27, 45-47 ; 3 Chitty on Com. & Manuf. 204, 205, 215, 218 ; Scott v. Surman, Willes, 406, 407 ; Smith on Merc. Law, p. 99 (3d ed. 1843). ' Paley on Agency, by Lloyd, 9, 27, 28 ; Molloy, B. 3, ch. 8, § 7 ; Russell 1). Hankey, 6 T. R. 12 ; 1 Liverm. on Agency, ch. 8, § 2, p. 356 (ed. 1818) ; Ante, §§ 98, 103, 109, and note, 181. ' Paley on Agency, by Lloyd, 32, and note (2) ; Mainwaring v. Brandon, 8 Taunt. 202. * Paley on Agency , by Lloyd, 17; Goswell ». Dunkley, 1 Str. 680, 681. See Bromley v. Coxwell, 2 Bos. & Pull. 438 ; Ante, § 194. » Paley on Agency, by Lloyd, 45, 46 ; Knight v. Ld. Plymouth, 3 Atk. 480 ; ExpaHe Parsons, Ambler, 219; Ante, § 200; Post, 208; Hammon v. Cottle, 6 Serg. & R. 290. ' Dig. Lib. 26, tit. 7, I. 50. 236 AGENCY. [CH. vn. of his receipts ; and to render such accounts to his principal at all reasonable times, without any suppression, concealment, or overcharge.^ The Roman law, in the like manner, required mandataries and agents to render an account of their doings to their principals, and to pay over to them all the property and proceeds in their hands. " Procurator, ut in cseteris quoque ne- gotiis gerendis, ita et in litibus, ex bonS, fide rationem reddere debet. Itaque, quod ex lite consecutus erit, sive principaliter ip- sius rei nomine, sive extrinsecus ob earn rem, debet mandati judicio restituere.^ § 204. This duty is strictly enforced in courts of equity ; and if, by the neglect or omission of this duty, the principal suffers a .loss, that loss must be ultimately borne by the agent. When an agent omits to render his account of sales, when reasonably required after the sales are made, he will be presumed to have received the money, and will be accountable therefor ; and, in all cases of unreasonable delay, he is generally charged with interest, whether he has made interest or not.^ But this is properly appli- cable only to cases where there has been no credit, or the credit has expired ; for the agent is not in any default for not paying over the money, until he has received it.* ' Paley on Agency, by Lloyd, 48, 49 ; White v. Lady Lincoln, 8 Ves. 369, 370 ; 3 Chitty on Com. & Manuf. ch. 3, p. 219 ; Smith on Merc. Law, 47-49 (2d ed.) ; Id. pp. 94, 95 (3d ed. 1843) ; Chedworth v. Edwards, 8 Ves. 49; Eaton V. Welton,. 32 N. H. 352 ; 1 Liverm. on Agency, oh. 8, § 7, pp. 434- 436 ; 1 Story on Eq. Jurisp. §§ 468, 628. A sub-agent, employed by an agent, is, in general, only accountable to the agent, and not to the principal ; for there is no privity between them. Ante, § 201 ; Post, § 217 ; Cartwright v. Hateley, 1 Ves. jr. 292 ; Pinto v. Santos, 5 Taunt. 447 ; Stephens v. Badcock, 3 S. & Adolph. 854 ; Myler v. Pitzpatrick, 6 Madd, 360. [* An agent to sell prop- erty is probably liable in a suit to his principal, without previous demand, if he neglects or refuses to render an account within a reasonable time after the sale ; but after account rendered, he is not liable for the money until demand has been made. Haas v. Damon, 9 Iowa, 689.] .= Dig. Lib. 3, tit. 3, 1. 46, § 4 ; Pothier, Pand. Lib. 3, tit. 3, n. 55 ; 1 Do- mat, B. 1, tit. 15, § 3, art. 8. ' 3 Chitty on Com. & Manuf. ch. 3, p. 220 ; Paley on Agency, by Lloyd, 49, 50 ; Dodge v. Perkins, 9 Pick. 368 ; v. JoUand, 8 Ves. 72. See Reid V. Van Rensselaer Glass Factory, 3 Cowen, 893 ; s. c. 5 Cowen, 587. See also Mr. Cowen's note to 3 Cowen, 87 ; Pope ». Barrat, 1 Mason, 117 ; Smith's Compendium of Merc. Law, pp. 94, 95 (8d ed. 1843). * See 8 Chitty on Com. & Manuf. ch. 3, p. 220 ; Bird's Syndic v. Dix's Es- tate, 16 Martin, 254 ; Leverick v. Meigs, 1 Cowen, 646. In Varden v. Parker, §§ 203-205,] AUTHOEITT, HOW EXECUTED. 237 § 204 a. In the next place, it would seem in general to be the duty of an agent, employed to sell the goods of different persons, such, for example, as a factor, to keep distinct accounts of the sales made for each of them ; and, if he should sell on credit and take notes for the payment, to take separate notes for the amount due to each principal ; for otherwise the rights of each might be essentially changed in case of a failure of due payment, and a difficulty might arise in ascertaining the exact amount of property of each in the respective notes so taken.^ Without doubt, the usage of trade, or the mode of dealing between the parties, may vary the application of this rule ; but it seems in itself equally convenient and equitable, as applied to ordinary cases.^ § 205. So, it is, in many cases, the duty of an agent to keep the property of his principal separate from his own, and not to mix it with the latter ; and if he does not keep it separate from his own, in cases where it is properly his duty, and afterwards he is unable to distinguish between the one and the other, the whole will, as a sort of penalty for his negligence, be adjudged to belong to his principal.^ It is also the duty of an agent, in some cases, to invest the money of his principal, which comes to his hands, so as to yield an interest ; in other cases, it is equally his duty to abstain from making any investment. If, in either case, he should violate his proper duty, he would become respon- sible to his principal. As, for example, if he has omitted to invest, in the former case, he will be made responsible for inter- 2 Esp. 710, Mr. Justice Buller eeems to have thought, that if part of the purchase-money only had been received by the agent, the principal could not recover that until the whole transaction was closed, unless the rest was not received by the default of the agent. The doctrine does not seem to have been called for by the facts of the case, and therefore will deserve further considera- tion. See 3 Chitty on Com. & Manuf. oh. 3, p. 220 ; Paley on Agency, by Lloyd, 39, 40, and note (a) . ' Ante, § 179, note ; Clark v. Tipping, 9 Beavan, 284. ' See ante, 179, note ; Corlies v. Widdifield, 6 Cowen, 181 ; Jackson o. Baker, 1 Wash. Cir. 395, 445 ; Johnson v. O'Hara, 5 Leigh (Va.), 456. ' Paley on Agency, by Lloyd, 48, 49, 51 ; Wren v. Kirton, 11 Ves. 377, 382 ; Pletcher v. Walker, 3 Madd. 73 ; Lupton v. White, 15 Ves. 432 ; Greene V. Haskell, 6 R. I. 447 ; 1 Beawes, Lex Merc. Factms, pp. 44, 46 ; 3 Chitty on Com. & Manuf. ch. 3, pp. 216, 220 ; Smith on Merc. Law, 48-60 (2d ed.) ; Id. ch. 5, § 2, pp. 96, 96 (3d ed. 1843) ; Chedworth v. Edwards, 8 Ves. 49, 50 ; 1 Story on Eq. Jurisp. §§ 468, 623 ; Ersk. Inst. B. 3, tit. 3, § 34 ; Ante, 179, n., 204 a. 238 AGENCY. [CH. VII. est ; in the latter case, the principal will be at liberty to reject the investment, and to hold the loss, if any, on the invest- ment, to be the loss of the agent.^ The duty of investing is sometimes dependent upon the general usage of trade ; some- times upon the particular course of business between the parties ; and sometimes upon what may be deemed the law of particular tribunals.^ § 206. In many cases, also, agents become depositaries or stake-holders of property, as well as agents ; and in such cases, the ordinary duties of depositaries of the same nature and character belong to them. Thus (as we have seen), factors are depositaries of the goods, which they are employed to sell ; and therefore they are bound to reasonable skill and diligence in the preservation of them.^ Auctioneers are also depositaries or stake-holders of both parties of money, paid upon purchases, to remain in their hands, until all the conditions of the sale are fulfilled. Of course they are bound to keep it until that period, as a mutual pledge ; and if, before the conditions are fulfilled, it is given up to either party, without the consent of both, they will be responsible for any loss occasioned thereby.* § 207. It may also be stated, as generally true, that all profits, which are made by an agent in the course of the business of his principal, belong to the latter.^ Indeed, this doctrine is so firmly established upon principles of public policy, that no agent will be permitted to take beyond a reasonable compensation for his services, or to hold any profits incidentally obtained in the execution of his duty, even if it be sanctioned by usage. ^ Such ' Paley on Agency, by Lloyd, 48 ; 3 Chitty on Com. & Manuf. ch. 3, p. 218. ^ Paley on Agency, by Lloyd, ch. 50 ; Brown v. Southouse, cited 3 Bro. Ch. 107. The question, whether interest is to be allowed, in cases of agency, against the agent, or not, is dependent upon a great variety of circumstances. Mr. Cowen, in his learned note to 8 Cowen's Reports, p. 87, has collected many of the authorities. In general, it may be stated, that interest is allowed, wher- ever it has been, or it might properly have been, made by the agent ; and also where, by gross misconduct, he has withheld, or grossly misapplied, the moneys of his principal. " Ante, §§ 33, 110, 186. ■• 3 Chitty on Com. & Manuf. ch. 3, p. 219 ; Burrough v. Skinner, 5 Burr. 2639 ; Prevost v. Gratz, 1 Peters, Cir. 364 * Ante, § 192 ; Post, §§ 214, 840. " 3 Chitty on Com. & Manuf. ch. 8, pp. 216, 221 ; Diplock v. Blackburn, 3 Campb. 43, 44 ; Smith on Merc. Law, 49 (2d ed.) ; Id. ch. 6, § 2, pp. 91, 92 §§ 205-208.] AUTHORITY, HOW EXECUTED. 239 a usage has been severely stigmatized, as a usage of fraud and plunder.^ Where the profits are made by a violation of duty, it would be obviously unjust to allow the agent to reap the fruits of his own misconduct ; and where the profits are made in the ordi- nary course of the business of the agency, it must be presumed, that the parties intended, that the principal should have the benefit thereof.^ § 208. Besides the particular duties of agents, which have been already incidentally stated, there are others, which seem to be the proper result of law ; and a deviation from them can only be justified by some clear usage of business, or by the sanction of the principal, or by an overruling necessity.^ Thus, in regard to agents receiving money for their principals, it seems (as has been already suggested), a clear duty, if they deposit the money in the hands of bankers, to deposit it in the name of their principals, and not in their own names ; and if they adopt the latter course, and the bankers should become insolvent, the agents would become personally responsible for the loss.* So, it is the duty of agents to keep their principals apprised of their doings, and to give them notice, within ,a reasonable time, of all such facts and circumstances, as may be important to their interests; and if, by neglect of the agent, the principal suffers a loss, he is entitled to be indemnified by the agent.^ Thus, for example, it is the duty of an agent, to whom a bill of (3d ed. 1843) ; Massey v. Davis, 2 Ves. jr. 817 ; v. Jolland, 8 Ves. 72 ; Paley on Agency, by Lloyd, 3, 4 ; Ante, § 192. [* Lafferty v. Jelley, 22 Ind. 471.] ' Diplock V. Blackburn, 3 Campb. 44. ' Ante, § 192; Post, §§ 210, 211. = Ante, §§ 85, 118, 141, 194, 201, 237. * Ante, § 202 ; Post, § 218 ; Caffrey v. Darby, 6 Ves. 496 ; Massey v. Ban- ner, 1 Jac. & Walk. 241 ; 4 Madd. 413 ; Paley on Agency, by Lloyd, Pt. 1, eh. 1, § 3, pp. 9, 10; Wren ». Kirton, 11 Ves. 377, 382; Fletcher v. Walker^ 3 Madd. 73 ; 3 Chitty on Com. & Manuf. ch. 3, p. 215; Macdonnell v. Hard- ing, 7 Sim. 178 ; Hammon v. Cottle, 6 Serg. & K. 290. [* Webster v. Pierce, 35 111. 169. If an agent intermingles money of his principal either with his own or that of other persons, and defends a suit for it on the ground that it was stolen without his fault, the burden is on him to show that the identical money stolen belonged to his principal. Bartlett v. Hamilton, 46 Maine, 436.] ' Paley on Agency, by Lloyd, 27, 38, 39 ; Malyne, Lex Merc. 82 ; 3 Chitty on Com. & Manuf. ch. 3, pp. 219, 220 ; Arrott v. Brown, 6 Wharton, 9 ; Devall V. Burbridge, 4 Watts & Serg. 305; Harvey u.. Turner, 4 Rawle, 229; For- restier ». Bordman, 1 Story, 43, 66. 240 AGENCY. [CH. Til. exchange is remitted for acceptance, to give notice to his employ- er of the acceptance or non-acceptance of the bill, by the earliest reasonable opportunity.^ So, an agent employed to purchase goods abroad, or goods to be shipped abroad, is bound to trans- mit the bill of lading to his employer as soon as possible, or at least within a reasonable time.^ It has also been laid down, as the duty of a bill-broker, or other person, to whom a bill is remit- ted on commission, first, to endeavor to procure acceptance ; secondly, on refusal, to protest the bill for non-acceptance ; third- ly, to advise the remitter of the receipt, acceptance, or protest; and in case of the latter, to send the protest to him ; and fourthly, to advise any third person that is concerned ; and all this is to be done without delay ; or, as Beawes expresses it, by the post's re- turn without further delay .^ But it is far from being clear, that all these are strictly his duties in all cases ; and it is certain, that there are others equally imperative. Indeed, the duties properly belonging to such agencies are most naturally affected and quali- fied by the usages of trade, and the particular dealings between the parties. Thus, for example, unless there be a clear usage of trade, it seems hardly to be a part of such an agent's duty, to give advice to third persons of the receipt, or acceptance, or refu- sal of acceptance of a bill, although it is his duty to give such advice to his employer.* And it seems quite as much the duty of such an agent to present the bill for payment, if accepted, and to give notice of the payment, or non-payment, and in the latter case, to protest the bill, as it is to perform the other duties already enumerated.^ § 209. And this leads us to the remark, which, indeed, has been already anticipated in the preceding pages, that there are certain duties appropriate, and belonging to certain classes of ' Beawes, Lex. Merc. tit. Bills of Exchange, p. 430, § 117 ; Paley on Agency, by Lloyd, p. 5 ; Id. 39 ; Crawford v. Louisiana State Bank, 13 Mar- tin, 214, 706 ; Montillat v. Bank gf the United States, 13 Martin, 365 ; Mi- randa J). City Bank of New Orleans, 6 Miller, La. 740 ; Pritchard v. Louisiana State Bank, 2 Miller, La. 416; Durnford v. Patterson, 7 Miller, La. 464; Canonge v. Louisiana State Bank, 15 Martin, 344. 2 Barkers. Taylor, 6 Mees. & Wels. 527. » Paley on Agency, by Lloyd, 5, 39; Beawes, Lex. Merc. p. 430, § 117; Arrott V. Brown, 6 Whart. 9. * See ante, §§ 199, 200. » Ante, § 200. §§ 208, 209.] AUTHOEITT, HOW EXECUTED. 241 agencies, resulting either from the general usages of business, or the habits of dealing between the parties, or the special func- tions to be performed, which cannot be deemed of universal application or obligation. Thus, for example, there are peculiar duties, and peculiar functions, belonging to auctioneers, to bro- kers, to factors, to masters of ships, to ships-husbands, and even to particular agents, arranged under the same general denomina- tion, such as ships-brokers, bill-brokers, stock-brokers, insur- ance brokers, supercargoes, and commission-merchants, with or without a del credere commission.^ In some of these cases, the law (as we have already seen) has prescribed, or recognized, par- ticular duties as positively obligatory ; in other cases, they are to be gathered from analogous principles, or are dependent upon the usages and habits of trade, to be ascertained as matters of fact.^ Thus, for example, it is now settled, as a matter of law, that auctioneers can sell goods only for ready money ; but that factors may sell upon credit.^ In the first case, the general rule of law is strictly adhered to, that all sales must be for cash, un- less there is a usage of trade, which relaxes the rule, and governs the sale. In the latter case, the right of a factor to sell upon credit, although formerly a matter of fact and usage, and to be ascertained as such, is now treated as an undeniable principle of law, and incidental to the agency, in the absence of all contra- dictory proofs.* A minute enumeration of the particular duties of all classes of agents would not be of any great utility, even if it were a practicable task. But in the present state of the- law, it must necessarily be very imperfect, and derived mainly from general principles, which must, of course, undergo many modifications, to adapt them to the exigencies of each agency.^ ' See 1 Liverm. on Agency, ch. 3, pp. 57-77 ; Beawes Lex Merc. vol. 1, pp. 44-49, 4to. (6th ed.). » Ante, §§ 26-37. » 3 Chitty on Com. & Manuf. 199; Ante, §§ 27, 60, 108, HO; Post § 226. ' Ante, §§ 108, 110. ° The learned reader will find in Malyne's Lex Mercatoria, ch. 16, pp. 81-86, much information as to the practical duties of factors ; and in 1 Liverm. on Agency, ch. 3, pp. 67-78 (ed. 1818), in Paley on Agency, by Lloyd, pp. 18-24, and in Beawes, Lex Mercatoria, pp. 44-49 (6th ed.),the like information, as to these and other mercantile agencies. But, as a specimen, how little can be AGENCY. 16 242 AGENCY. [CH. vir, , § 210. In this connection, also, it seems proper to state an- other rule, in regard to the duties of agents, which is of general application, and that is, that, in matters touching the agency, agents cannot act, so as to bind their principals, where they hare an adverse interest in themselves.^ This rule is founded upon the plain and obvious consideration, that the principal bargains, in the employment, for the exercise of the disinterested skill, diligence, and zeal of the agent, for his own exclusive benefit.^ [Thus, where an agent, having a sum of money in his hands belonging to his principal, is authorized to remit it by purchas- ing a bill of exchange, he should purchase the bill with such money, and not by using his own credit.^] It is a confidence necessarily reposed in the agent, that he will act with a sole attained in practical utility by any general statements, we select the following passage from Mr. Livermore, as to the general duty of a factor: "The gen- eral duty of a factor is to procure the best intelligence of the state of trade at his place of residence ; of the course of exchange ; of the quantity and quality of goods at market ; their present price, and the probability that it may rise or fall ; to pay exact obedience to the orders of his employers ; to consult their advantage in matters referred to his discretion ; to execute their business with all the despatch that circumstances will admit ; to be early in his intelligence, distinct in his accounts, and punctual in his correspondence." 1 Liverm. on Agency, ch. 3, p. 69 (ed. 1818). See also 1 Bell, Comm. §§ 407-418; Id. §§ 432-436 (4th ed.) ; Id. pp. 477, 478, 481, 482 (5th ed.) ; Clarke v. Tip- "ping, 9 Beav. 284. 1 Stones. Hayes, 3 Denio, 675. [* In Marine Bank ». Fulton Bank, 2 Wallace (U. S.), 252, it was held that money collected by one bank for another, placed by the collecting bank with its own funds, and used in its daily business as its own and credited to the bank for which it was collected in account, becomes the money of the former, and therefore any depreciation in the specific bank-bills received by the collecting bank, which may happen between the date of the collecting bank's receipt of the money and the other bank's drawing for the amount collected, falls upon the former. But in Ansley v. Anderson, 35 Ga. 8, it was held that the fact that the defendant did not make a special deposit will not render him liable for a loss arising from the nature of the money — as where the agent received confederalte money which became worth- less. See also Duguid v. Edwards, 60 Barb. 288.] " Paley on Agency, by Lloyd, 10, 11, 33, 37 ; 3 Chitty on Com. & Manuf. 216, 217 ; 1 Liverm. on Agency, ch. 8, § 6, pp. 416-433 (ed. 1818) ; Church V. Mar. Ins. Co. 1 Mason, 341 ; Shepherd v. Percy, 16 Martin, 267 ; Parkhurst J). Alexander, 1 John. Ch. 394; Beale v. MeKiernan, 6 Miller, La. 407; 1 Story, Eq. Jurisp. §§ 316, 316, 316 a; Copeland v. Merchants' Ins. Co. 6 Pick. 198, 204 ; Ante, § 10. ^ Stone V. Hayes, 3 Denio, 576. § 210.] AXTTHOEITY, HOW EXECUTED. 243 regard to the interests of his principal, as far as he lawfully may ; and, even if impartiality could possibly be presumed on the part of an agent, where his own interests were concerned, that is not what the principal bargains for ; and, in many cases, it is the very last thing which would advance his interests.^ The seller of an estate must be presumed to be desirous of obtaining as high a price as can fairly be obtained therefor ; and the pur- chaser must equally be presumed to desire to buy it for as low a price as he may. It has been said by Cujacius : " Hsec scilicet est natura contractus emptionis et venditionis, ut vendat unus quanto pluris, emat alter quanto minoris potest ; " ^ or, more briefly, in another. place, " Ut emptor votum gerat emendi minoris, et venditor pluris vendendi ; " ^ or more pointedly still, " Emptor emit, quam minimo potest ; venditor vendit, quam maximo potest." * Without going to the full length of the statement of Pomponius, as adopted in the pandects, that, in regard to price, the parties may lawfully circumvent each other, if that word is to be under- stood in its offensive sense ; " In pretio emptionis et venditionis naturaliter licere contrahentibus se circumvenire ; " ^ it may be correctly said, with reference to Christian morals, that no man can faithfully serve two masters, whose interests are in conflict. If, then, the seller were permitted, as the agent of another, to become the purchaser, his duty to his principal and his own interest would stand in direct opposition to each other ; and thus a temptation, ' perhaps, in many cases, too strong for resistance by men of flex- ible morals, or hackneyed in the common devices of worldly busi- ness, would be held out, which would betray them into gross misconduct, and even into crime. It is to interpose a preventive ' Paley on Agency, by Lloyd, 10-12 ; 8 Chitty on Com. & Manuf. 216, 217 ; 1 Liv'erni. on Agency, ch. 8, § 6, pp. 416-433 (ed. 1818) ; Beale v. McKier- nan, 6 La. 407 ; Gillett ». Peppercorne, 3 Beav. 78, 83, 84 ; Ante, § 10. ' Cujac. Opera, Tom. 4, coL 963, ad Lib. 3, Kesp. Pap. (ed. Neap. 1768) ; Ante, § 10, note. « Cujac. Opera, Tom. 10, coL 1005, in IV. Lib. Prior. Cod. Lib. 4, tit. 44, §8(ed. Neap. 1759). ■* Cujac. ad Dig. Lib. 4, tit. 4, L 16, § 4 ; De Minor. Vig. Quin. Ann. (Tom. 1, coL 998), cited 1 Liverm. on Agency, 417 (ed. 1818). I have not found the very passage, after some search. But there is a passage to the same effect in Cujac. Comm. in Lib. 3, Kesp. Pap. ad § — Cum. inter. Dig. Lib. 46, tit. 1, L 61, § 4; Cujac. Opera, Tom. 4, p. 963 (ed. Neap. 1768) ; Ante, § 10, note. ' Dig. Lib. 4, tit. 4, L 16^ § 4 ; Ante, § 10 ; Post, § 213. 244 AGENCY. [CH. Til. check against such temptations and seductions, that a positive prohibition has been found to be the soundest policy, encouraged by the purest precepts of Christianity. This doctrine is well settled at law ; ^ but it is acted upon in courts of equity to a much larger extent, not only in cases of persons, confidentially intrusted with the management of the property of others ; but, in cases of other relations of a confidential nature, involving the rights and interests of the employer.^ And it is by no means necessary, in cases of this sort, that the agent should have made any advantage by the bargain. Whether he has so or not, the bargain is equally without any obligation to bind the principal' Of course, it is to be understood, as a proper qualification of the doctrine, that the principal has an election to adopt the act of the agent or not ; and that, if, after a full knowledge of all the circumstances, he deliberately and freely ratifies the act of the agent, or acquiesces in it for a great length of time, it will become obligatory upon him ; not by its own intrinsic force, but from the consideration, that he thereby waives the pro- tection, intended by the law for his own interests, and deals with his agent, as a person, quoad hoc, discharged of his ageiicy.* § 211. Hence, it is well settled (to illustrate the general rule), that an agent, employed to sell, cannot himself become the pur- chaser ; and an agent employed to buy, cannot himself be the seller.^ [And upon the same principle it is held that a contract ' Taylor v. Salmon, 4 Mylne & Craig, 139. " Paley on Agency, by Lloyd, 10-12, 33-36 ; 1 Story on Bq. Jurisp. §§ 308-328 ; Huguenin u. Baseley, 14 Ves. 290 ; Baker v. Whiting, 3 Sumner, 476; Poillonj). Martin, 1 Sandf. Ch. 569; Ante, § 10; Post, §§ 211-213. ' Campbell v. Walker, 6 Ves. 680; Ex parte James, 8 Ves. 348; Ex parle Bennett, 10 Ves. 885 ; Cane v. Allen, 2 Dow, 289 ; Ex parte Lacey, 6 Ves. 625 ; 1 Story, Eq. Jurisp. §§ 315, 816, 316 a. * Paley on Agency, by Lloyd, 33-36, and note ; 1 Liverm. on Agency, eh. 8, § 6, pp. 427-438 (ed. 1818) ; 3 Chitty on Com. & Manuf. ch. 3, pp. 216, 217 ; Woodhouse v. Meredith, 1 Jac. & Walk. 204, 224 ; Morse v. Koyal, 12 Ves. 355 ; Lowther v. Lowther, 13 Ves. 95, 103 ; Saunderson v. Walker, 13 Ves. 601. ' Ante, § 10 ; Paley on Agency, by Lloyd, 33, 34, 37 ; 1 Story, Eq. Jurisp. §§ 315, 316, 316 a ; 3 Chitty on Com. & Manuf. ch. 3, pp. 216, 217 ; 1 Liverm. on Agency, ch. 8, § 6, pp. 416-433 (ed. 1818) ; Lees v. Nuttall, 1 Euss. & Mylne, 63 ; s. c. 2 Mylne & Keen, 819 ; Copeland v. Merc. Ins. Co. 6 Pick. 198; Reed v. Warner, 6 Paige, 650; Lowther v. Lowther, 13 Ves. 103; Beed V. Norris, 2 M. & Craig, 374 ; Beal v. McKiernao, 6 Miller, La. 407 ; Bartho- §§ 210, 211.] AUTHORITY, HOW EXECUTED. 245 made by one who acts as the agent of both parties, may be avoided by either principal.^] So, an agent employed to pur- chase cannot purchase for himself.^ So, a trustee cannot, ordi- lomewD. Leach, 7 Watts, 472; Conkey v. Bond, 34 Barb. 276; 4 Kernan, 85. [* Where a railroad company was owing debts, and a resolution was passed by ■its board of directors who had authority to manage its affairs, authorizing and empowering its president and vice-president " to enter into such arrangements with its creditors or the holders of its securities for such relief as the circum- stances and necessities of the case require, and to make such stipulations and agreements in the premises as they may deem proper and expedient," and by such authority the president of the railroad company sold to a bank to which it was indebted, with the assent of the vice-president of the company, who was also president of the bank, and acted for it in making the purchase, a quantity of railroad ties in part payment of the debt it was held that such assent of the vice-president of the railroad company was not a due execution of the power, and that he could not act as the agent both for the bank and railroad company in making such sale, and that it stood as if made by the president alone, and as such was not within the authority conferred by the resolution ; but if the fact of the sale had been communicated to its board of directors, who had authority to manage its affairs, and was openly talked of at one of their meetings, and they did nothing to disaffirm it, this would be deemed a ratification of the sale. Walworth, &c.. Bank u. Farmers', &c., Co. 16 Wis. 629. See also Ballston Spa Bank v. Marine Bank, ib. 120. Public officers are agents so far as to be within the rule prohibiting agents to act for themselves and their principals in the same transaction. People v. Overyssel, 11 Mich. 222. And where an agent filled an order by selling his own stock hona fide at a fair price without disclosing the ownership of the stock, it was held that the principal might repu- diate the transaction, return the stock, though after it has become worthless in the market, and recover back the consideration. Conkey v. Bond, 34 Barb. 276. See also 36 N. Y. Ct. Ap. 427. The clerk of a broker employed to make sale of land, who has access to the correspondence between his principal and the vendor, stands in such a relation of confidence to the latter, that, if he becomes the purchaser, he is chargeable as trustee for the vendor, and must reconvey or account for the value of the land. Gardner v. Ogden, 22 N. Y. Ct. Ap. 327. See Smith v. Lansing, ib. 520, where it is held that the financial officer of a bank is not disqualified from purchasing for his own benefit, property pledged to it for a debt, and that he discharges his duty when he sees to it that the sale is for a price sufficient to discharge the lien, and does not stand as trustee for any profit he may obtain by buying at that price. See also Cumberland, &c., Co. v. Sherman, 30 Barb. 553. A general authority to the president of a bank to certify checks drawn upon it, does not extend to checks drawn by himself. Claffin v. Farmers, &c. Bank, 25 N. Y. Ct. Ap. 293.] > N. Y. Central Ins. Co. v. National Protection Ins. Co. 20 Barb. 470. Mason, J., said, " This is an action upon a policy of reinsurance for $2000, Taylor v. Salmon, 4 Mylne & C. 139. 246 AGENCY. [CH. VH. narily, become the purchaser of the estate of his cestui que trust} And it will make no difference, whether he is sole trustee, or joined with others in the trust.^ So, the assignee of a bankrupt executed by the defendants to the plaintiffs through the agent, G. W. Stevens, who was also the agent of the plaintiffs in making the contract of insurance. The risk was selected and the rates of insurance fixed by Stevens, and the question is, whether this action can be maintained upon the policy. It becomes important to inquire whether such a contract, made by an agent who acts as the agent of both parties in making the contract, is absolutely void at common law, or whether it is voidable in a court of law ; or whether it is only voidable in a court of equity. The rule is well settled, both in England and this country, that such a contract is voidable in a court of equity at the election of the prin- cipal. The principle is illustrated in the case, of an agent employed to sell. If such agent become himself the purchaser or the agent of another ; or if he be an agent to buy, and he become himself the seller, or the agent of another in making the sale, the principal may avoid the sale or the purchase, in equity. If he come to the court upon a timely application, upon the fact being alleged and proved, the court will presume the transaction was injurious and conse- quently fraudulent ; and this presumption cannot be overcome unless it can be shown that the principal, furnished with all the knowledge the agent possessed, gave him previous authority to become purchaser or seller, or afterwards as- sented to such purchase or sale. (Campbell v. Walker, 5 Ves. 678; 1 Ves. jr. 287; Masseyt). Davies, 2 id. 317; 1 Russ & Mylne, 68; 2 Myl. & K. 819; Story on Agency, §§ 9, 192, 210, 211, 214; Dunl. Paley on Agency, 33, 34; 1 Mason, 341 ; 6 Pick. 198 ; 2 John. Ch. 252 ; 5 id. 388 ; Hopk. Ch. 616 ; 9 Paige, 237; 4 Conn. 717; 5 Lond. Jurist, 18; Smith's Merc. Law, 101; 13 Ves. 103; 8 id. 502; 9 id. 234; 12 id. 365; 3 Bro. C. C. 119; 6 Paige, 650; 2 Mylne & C. 374; Liverm. on Agency, 423; 4 Mylne & C. 134; 6 Ves. 625; 1 Story's Eq. Jurisp. §§ 315, 316; 2 Mason, 369; 1 Jac. & Walk. 294; 1 John. Ch.'27; 2 id. 894; 8 Ves. 740; 4 Denio, 575; Angell on Fire and Life Ins. 454, 455 ; Parsons on Contracts, 74, 75.) The rule seems to be founded on the danger of imposition in such cases, and the presumption which a court of equity indulges of the existence of fraud which is inaccessible to the eye of the court, and consequently in equity such agreements are regarded as constructively fraudulent. (9 Paige, 242 ; 4 Kent's Comm. 438, 3d. ed.) The rule is a well settled one, and the presumption is not an unreasonable one in a court governed by the principles of equity. The principal in fact has bargained » Ante, § 210 ; Baker v. Whiting, 3 Sumner, 476. ' Paley on Agency, 10, 11, 84, 35, note; 1 Story on Eq. Jurisp. §§ 314, 316, 321, 322; Parkhurst v. Alexander, 1 John. Ch. 394; Cane v. Allen, 2Dow, 289 ; 1 Liverm. on Agency, ch. 8, § 6, p. 416-433 (ed. 1818) ; Camp- bell V. Walker, 6 Ves. 680 ; Ex parte James, 8 Ves. 348 ; Sx parte Bennett, 10 Ves. 886 ; ExparteLacey, 6 Ves. 626 ; Whichcote ». Lawrence, 3 Ves. 740; Davoue v. Fanning, 2 John. Ch. 251, 260 ; Green v. Winter, 1 John. Ch. 27. § 211.] AUTHORITY, HOW EXECUTED. 247 cannot become a purchaser of the debts or estate of the bankrupt on his own account.^ And, if he does purchase, it will be a trust for the benefit of the creditors ; for he is treated as an agent for the creditors, in all matters touching the estate of the bankrupt.^ So, an executor or administrator cannot buy any of the debts of the deceased for his own benefit ; but the benefit will belong to for the exercise of all the skill, ability, and industry of his agent, and he is entitled to demand the exertion of this in his own favor. (Parsons on Cont. 74, 75.) Where the agent, unbeknown to his principal, is acting equally in behalf of the other party, the presumption is not an unreasonable one. This principle, however, like the one that a trustee cannot be the purchaser of an estate, is a mere rule of equity. If the proper forms have been observed, the conveyance is good at law, and the title passes. The contract is not void, but only voidable. (5 Met. 467 ; 5 John. 43, 48 ; 1 Bing. 396, 400, 401 ; 6 Ves. 678; 13 id. 603; 7 Moore, 316; 6 Pick. 521; 3 Ves. 740, 751; 2 John. Ch. 740, 761 ; 9 Ves. 248 ; 10 id. 381 ; 14 John. 414, 416 ; 2 Gill & John. 227 ; 4 id. 376 ; 3 Harr. & John. 38 ; Parsons on Cont. 76, 76, note j ; 1 Peters' C. C. 368; 6 Halst. 585; SCowen, 361). No case, T apprehend, can be found where a court of law has pronounced such a conveyance absolutely void. (14 John. 418 ; 5 id. 48 ; Mackintosh v. Barber, 1 Bing. 60 ; 7 Moore, 316 ; 6 Pick. 519, 621 ; 5 Met. 467.) The rule of which we have been speaking is applicable to all persons placed in situations of trust or confidence with reference to the sub- ject-matter of the contract, and embraces trustees, executors, administrators, guardians, agents and factors, attorneys, solicitors, &c. It embraces all who come within the principle. (9 Paige, 241.) There is no such rule, in equity even, as that a person standing in such trust relation, cannot himself buy at his own sale. He may purchase and take the title, subject however to the option of the cestui que trust, if he come in a reasonable time, to have £he sale de- clared invalid. (Campbell v. Walker, 5 Ves. 678, and cases, note a ; Lister v. Lister, 6 id. 631 ; Ex parte Lacey, 6 id. 625 ; 16 Pick. 31 ; 7 id. 1 ; 10 id. 77 ; 2 John. Ch. 252, 261, 266; 4 Gill & John. 376; Parsons on Cont. 76.") [* Ives ». Ashley, 97 Mass. 198.- An agent or attorney buying property under a judgment of his principal, becomes a trustee if he pay with the money of his principal, or purchases for less than his claim ; but the principal is not obliged to take the land, or consider the purchaser as his trustee, but may elect to treat him as his debtor, and claim the money instead of the property. Eshle- man ». Lewis, 49 Penn. St. 410. See also Greene v. Haskell, 5 K. I. 447. A contract in writing for the sale of land signed and sealed by one as agent for the grantor, is valid, though the agent's warrant is not sealed, — that the agent's authority is not sealed avoids only the sealing of his contract. Baum tj. Dubois, 43 Penn. St. 260.] ' But it seems this may be done if there be no fraud. Fisk v. Barber, 6 Watts & Serg. 8. So of a guardian buying the estate of his ward at a public sale. Chorenping's Appeal, 8 Casey, 316. * Ex parte Lacey, 6 Ves. 626, 628; 1 Story on Eq. Jurisp. §§ 321, 322. 248 AGENCY. [CH. Til. those interested in the estate.^ So, a surety, purchasing the debt, cannot avail himself of the purchase, against his principal, for more than he has paid ; hut he will be held as a quasi trustee.^ So, the master of a ship purchasing the ship at a sale by public authority, cannot purchase for himself, unless the owner after- wards elects to allow him the right.^ So, an agent employed to settle a debt, cannot purchase it upon his own account ; for he is bound to purchase it upon the best terms which he can, for the benefit of his principal ; and it would hold out a temptation to him to violate his duty, if he were permitted to purchase for him- self.* For the like reason, an agent of the seller cannot become the agent of the purchaser in the same transaction.^ So, an agent who discovers a defect in the title of his principal to lands, cannot misuse it to acquire a title for himself, but will be held a trustee for his principal.^ [So, an agent, or director of a cor- poration, who is employed to examine and ascertain how much, and what part, of his principal's land can be sold without incon- ' Ex parte Lacey, 6 Ves. 625, 628, 629 ; 1 Story on Eq. Jurisp. §§ 321, 322. But see Fisher's Appeal, 34 Penn. St. 29. " Reed v. Norris, 2 M. & Craig, 374 ; 1 Story on Eq. Jurisp. §§ 321, 322, 324. ' Cliamberlain v. Harrod, 6 Greenl. 420; Church v. Marine Ins. Co. 1 Ma- son, 341 ; Barker v. Marine Ins. Co. 2 Mason, 369 ; The Schooner Tilton, 5 Mason, 465, 480 ; Copeland v. Merch. Ins. Co. 6 Pick. 198. • Reed v. Norris, 2 M. & Craig, 861, 374 ; 1 Story on Eq. Jurisp. §§ 321, 322. * Paley on Agency, by Lloyd, 33, note (3) . See Wright v. Danuah, 2 Campb. 203 ; Dixon v. Bromfield, 2 Chitty, 205 ; Ante, § 207. ' Ringo V. Binns, 10 Pet. 269. Mr. Smith, in his Compendium of Mercan- tile Law, has summed up the doctrine on this matter in a very exact manner: " It has been already said, in the chapter on partnership, that, from a person, standing in a situation of confidence with regard to another, the strictest good faith is required. This maxim applies in full force to agents, of whose morals the law is so careful, that it will not suffer them even to incur temptation ; thus, an agent employed to sell is not allowed to be the purchaser, at least not unless he make known that he intends to become such, and furnish his employer with all the knowledge he himself possesses, or unless the court, perceiving that the principal would lose by a re-sale, think fit on that account to uphold the trans- action ; so neither can an agent, employed to purchase, be himself the seller, unless there was a plain understanding between him and his principal to that effect. And if an agent, who is employed to purchase, purchase for himself, he will be considered a trustee for his principal. This is in accordance with the rule of the civilians. Tutor rem pupilli emere non potest ; idemque porrigen- dum est ad similia, id est, ad curatores, procuratores, et qui negotia aliena gerunt. Dig. 1. 18, tit. 1," — p. 93 (3d ed. 1843). . .-:,d . § 211.J AUTHORITY, HOW EXECUTED. 249 venience, and to report his proceedings to his principal, cannot purchase such part and take a conveyance to himself ; nor can he act for another in making such purchase.^] Indeed, it may [' Cumberland Coal Co. v. Sherman, 30 Barb. 663. Davies there said in an elaborate judgment, " The cases relating to the dealings of an agent or trustee with the property, in reference to which his agency or trust exists, may be arranged into two classes : First. Cases in which a trustee buys or contracts with himself, or several trustees of which he is one, or a board of trustees of which he is one ; and it will be seen by reference to the authorities herein- after cited, that the incapacity to purchase applies to all these cases. Second. Cases in which a trustee buys of, or contracts with, his cestui que trust who is sui juris, and is competent to deal independently of the trustee, in respect to the trust estate. " As to the first class of cases, the purchase or contract is voidable at the option of the cestui que trust, without reference to the fairness or unfairness of the purchase or contract. For the reasons before given, the disqualification of the party purchasing or contracting is a conclusion of law, and is absolute. The leading case in this state, and which has been followed without qualifica- tion, so far as I have been able to ascertain, is that of Davoue v. Fanning, 2 John. Ch. 262. In that case, an executor, on making sale of the real estate of his testator, caused the same to be purchased for his wife, and conveyed to her. The sale was made at public auctibn and for a fair price, and was bond fide. Yet the sale was set aside at the instance of the cestui que trust ; and it will be observed that the trustee was not the purchaser, but a third person, for the benefit of his wife. Chancellor Kent says, ' Whether a trustee buys in for himself or his wife, the temptation to abuse is nearly the same. Though the money he was raising was to go to his wife, it was no reason why he should be permitted to buy in for her the estate itself. His interest interfered with his duty. . . . The case, therefore, falls clearly within the spirit of the principle, that if a trustee, acting for others, sells an estate, and becomes himself interested in the purchase, the cestui que trust is entitled to come here, as of course, and set aside that purchase, and have the property re-exposed to sale.' Chancellor Kent then proceeds to review the cases bearing on this point, commencing with that of Holt V. Holt, in the time of 22 Car. II., where it was held that if an executor renew a lease in his own name on its expiration, the renewed lease is to be for the benefit of the cestui que trust. " And in Davison v. Gardner, in 1743, Lord Hardwicke observed, that the court always looks with a jealous eye at a trustee purchasing of his cestui que trust; and in Whelpdale ». Cookson, in 1847 (1 Ves. 9 ; s. c. 6 Id. 682), the chancellor would not permit a purchase at auction to stand, as he said he knew the dangerous consequence of sanctioning dealings of a trustee with the prop- erty of the cestui que trust. In Campbell v. Walker, 6 Ves. 678, the master of the rolls says, ' I will lay down the rule as broad as this, and I wish trustees to understand it, that any trustee purchasing trust property is liable to have the purchase set aside, if, in any reasonable time, the cestui que trust chooses to say he is not satisfied with it.' He adds, ' They must buy with that clog.' " The numerous cases cited by Chancellor Kent show the uniformity of the 250 AGENCY. [CH. Til. be laid down as a general principle, that, in all cases where a person is, either actually or constructively, an agent for other persons, all profits and advantages made by him in the business, rule, not only in the English courts, but in our own and those of sister states. The rule in this state has been settled by the highest court therein. In Munro V. Allaire, 2 Gaines' Cases in Error, 183, Benson, Justice, in delivering the opinion of the court, says, ' It is a principle that a trustee can never be a pur- chaser, and I assume it as not requiring proof that this principle must be admitted, not only as established by adjudication, but also as founded in indis- pensable necessity to prevent that great inlet of fraud, and those dangerous consequences, which would ensue if trustees might themselves become pur- chasers, or if they were not in every respect kept within compass. Although it may, however, seem hard that the trustees should be the only persons of all mankind who may not purchase, yet, for the very obvious consequences, it is proper'that the rule should be strictly pursued, and not in the least relaxed.' Chancellor Kent says, that he cannot but notice the precision and accuracy with which the rule and the reason of it are here stated. " Chancellor Kent says that there is one more important case, that of The York Building Company v. Mackenzie, decided in the house of lords in 1795, on appeal from the court of session in Scotland. It had then only appeared in 8 Bro. P. C. by Tom., in App., but has since been reported in 3 Paton, 378. He says of this case, that it is a complete vindication of the doctrine he was there applying ; and he remarks that, considering the eminent character of the counsel who were concerned, and who had since filled the highest judicial stations, and the ability and learning which they displayed in the discussion, it is, perhaps, one of the most interesting. cases, on a mere technical rule of law, that is to be met with in the annals of our jurisprudence. He says the reasons of the house of lords for setting aside the sale are not given, and we are left to infer them from the arguments upon which the appeal was founded. They have now appeared in the eloquent and learned opinions of Lord Thurlow and Lord Chancellor Loughborough. The perusal of these opinions would have satisfied the learned chancellor that his views of the case, as one of high author- ity and great interest, were eminently correct. The appellants were an insolvent company, and their estate was sold by the order of the court of session, at a public judicial sale, to satisfy creditors. The course, at such sales, is to set up the property at a value fixed upon by the court, which is called the up-set price, and which is founded on information procured by the common agent of the court, who has the management of all the out-door business of the cause. The respondent in the case was the common agent, and he purchased for him- self at the up-set price, no person appearing to bid more, and the sale was confirmed by the court ; and in the course of eleven years' possession he had expended large sums for building and improvements. There was no question as to the fairness or integrity of the purchase. The object of the appellant was to set aside the sale, on the ground that the purchaser was the common agent in behalf of all parties to procure information and attend the sale, and was in the nature of a trustee, and so disabled to purchase. On the part of the appellants, it was contended that the sale in question was ipso jure void §§ 211, 212.] AUTHORITY, HOW EXECUTED. 251 beyond his ordinary compensation, are to be for the benefit of his employers.^ § 212. With a view to provide effectually against the abuse and null, because the respondent, from his office of common agent, was under a disability and incapacity, which precluded him from being a purchaser. The office of common agent, in a ranking and sale, infers a natural disability, which, ex m termini, imparts the highest legal disability, because a law which flows from nature, being founded on the reason and nature of the thing, is paramount to all positive law. The principle is obvious. He cannot be both judge and party. He cannot be both, seller at a roup and buyer; he cannot serve two masters. These views were not controverted by the counsel on the other side, but they insisted the sale coiild be maintained upon other grounds. After an argument of sixteen days, the case was decided in the house of lords, opinions being given by Lord Thurlow and Lord Chancellor Loughborough. Lord Thurlow said, on this point, that all the gentlemen admit that it was the duty of the agent to carry on the sale to the utmost advantage, for the benefit of the creditors, and those interested in the residue ; and, taking it to be so, one side said, that being your situation, it is utterly impossible for you to perform that duty in such a manner as to derive an advantage to yourself. This seems to be a principle so exceedingly plain, that it is in its own nature indisputable, for there can be no confidence placed unless men will do the duty they owe to their constituents, or be considered to be faithfully executing it, if you apply an arbitrary rule. In these views the lord chancellor concurred, and the sale was set aside. Lord Eldon and Sir W. Grant designate this as the great case, and repeatedly refer to it. In Jeffrey v. Aitken, decided in June, 1826, the lord ordinary observed, it is impossible to hold that the seller can also be the buyer of the subject, after the judgment of the house of lords in the case of the York Building Company v. Mackenzie, decided May 18, 1795. "In Taylor ». Watson, decided in Scotland, Jan. 20, 1846, the same rule as laid down in Mackenzie's case was reiterated and adhered to. Lord Jeffrey said, ' The principle involved in this case is a very familiar and general one in our laws, — that no person can he actor in rem suam. The stringency of the maxim has been ruled and held settled by the house of lords, in the case of Mackenzie. ... It is now presumptio juris et dejure, that where a person stands in these inconsistent relations of both buyer and seller, there are dangers, and it is not relevant to say that it is impossible there could be any in the particular case. I should be sorry to think that any doubts were thrown on this rigorous principle which has been established both here and in the other end of the island.' " In the case of the Aberdeen Railway Company v. Blaikie, July 20, 1854 (1 McQueen, 461), the house of lords, reversing the judgment of the court ' Paley on Agency, by Lloyd, 37, 38, 49 ; East India Co. ». Henchman, 1 Ves. jr. 289 ; Massey v. Davies, 2 Ves. jr. 317 ; 3 Chitty on Com. & Manuf. 221; Campbell v. Penn. Life Ins. Co. 2 Whart. 64; Bartholomew v. Leach, 7 Watts, 472. 252 AGENCY. [CH. VII. of professional confidence, even a purchase of an estate by an attorney from his client is treated with severe jealousy by courts of equity. The presumption is primd facie so far against its below, held that a contract entered into by a manufacturer, for the supply of iron furnishings to a railway company of which he was a director, or the chair- man at the date of the contract, was invalid and not enforceable against the company. Lord Cranworth, in delivering the opinion of the court, says, ' A corporate body can only act by agents, and it is of course the duty of those agents so to act as best to promote the interests of the corporation, whose affairs they are conducting. Such an agent has duties to discharge, of a fiduciary character toward his principal; and it is a rule of universal application, that no one having such duties to discharge shall be allowed to enter into engagements in which he has or can have a personal interest conflicting, or which possibly may conflict, with the interests of those whom he is bound to protect. So strictly is this principle adhered to, that no question is allowed to be raised as to the fairness or unfairness of a contract so entered into. It obviously is or may he impossible to demonstrate how far, in any particular case, the terms of such a contract have been the best for the cestui que trust, which it was possible to obtain. It may sometimes happen that the terms on which a trustee has dealt, or attempted to deal, with the estate or interests of those for whom he is a trus- tee, have been as good as could have been obtained from any other person; they may even, at the time, have been better. But still so inflexible is the rule, that no inquiry on that subject is permitted. The English authorities on this subject are numerous and uniform.' " The same subject has had a full and careful discussion and examination in the supreme court of the United States, in the case of Miohoud v. Girod, cited supra. The opinion of the court, by Mr. Justice Wayne, is distinguished for its clear analysis and elaborate review of all the oases bearing on the point. He says, ' The rule, as expressed, embraces every relation in which there may arise a conflict between the duty which the vendor or purchaser owes to the persons with whom he is dealing, or on whose account he is acting, and his own indi- vidual interest.' The same rule obtains in the civil law, with some modifications not necessary to notice. " The language of Pothier is distinct and unequivocal: ' Nous ne pouvons acheter, ni par nous-m6mes, ni par personnes interpos^es, les choses qui font partie des biens dont nous avons I'administration.' (Tr. du Contrat de Vente, part 1, p. 13.) The rule of the civil law, without qualification, is adopted in Holland : ' Quae vero de tutoribus cauta, ea quoque in curatoribus pro cura- toribus, testamentorum, executoribus, aliis similibus, qui aliena gerunt negotia, probanda sunt.' In Spain the rule is enforced without relaxation, and with stern uniformity. Judge Wayne, in the case of Michoud, in his opinion, cited the rule from the Novissima Recopilaeion, in these words : ' No man who is testamentary executor, a guardian of minors, nor any other man or woman, can purchase the property which they administer, and whether they purchase pub- licly or privately, the act is invalid, and on proof being made of the fact, the sale must be set aside.' It is thus seen that the rule by which agents or trustees are prohibited and rendered incapable of purchasing or dealing with the prop- § 212] AUTHORITY, HOW EXECUTED. 253 validity, tliat the burden of proof is thrown on the attorney, to establish its entire good faith for an adequate and fair considera- tion.^ In this respect, it is said to differ from the case of a pure erty of their cestui que trust, is one of universal application, justified by a current of strong and high authorities, and is adhered to with stern nnd inflexible in- tegrity ; and the consequence of such dealing and purchasing is, that the agent or trustee is liable at any time, on the application of the cestui que trust, and as a matter of course, and without reference to the fairness or unfairness of the transaction, the adequacy or inadequacy of the price paid, or any other equities of the agent or trustee, to have the sale set aside ; such has been the uniform administration of the law in England, and where the civil law prevails, and in this country. No reason is suggested why rules thus founded on the soundest morals, which have been maintained with such uniformity and steadiness, should now be relaxed. On the contrary, it is seen that every consideration arising from circumstances surrounding us, and the unparalleled multiplicity of corpo- rations, who can only act by trustees or agents, and the very large proportion of the wealth of the countrjMnvested in them, and placed under the control and management of agents and trustees, forcibly demands of courts of justice a firm adherence to these principles, and a stern application of them to every case coming within the sphere of their action. " Nay, the rule, as applicable to managers of corporations, should in no par- ticular be relaxed. Those who assume the position of directors and trustees, assume also the obligations which the law imposes on such a relation. The stockholders confide to their integrity, to their faithfulness, and to their watch- fulness, the protection of their interests. This duty they have assumed, this the law imposes on them, and this those for whom they act have a right to expect. The principals are not present to watch over their own interests ; they cannot speak in their own behalf; they must trust to the fidelity of their agents. If they discharge these important duties and trusts faithfully, the law interposes its shield for their protection and defence ; if they depart from the line of their duty, and waste, or take themselves, instead of protecting, the property and interests confided to them, the law, on the application of those thus wronged or despoiled, promptly steps in to apply the corrective, and restores to the injured what has been lost by the unfaithfulness of the agent. This right of the cestui que trust to have the sale vacated and set aside, where his. trustee is the pur- chaser, is not impaired or defeated by the circumstance that the trustee purchases for another. This point is fully discussed by Lord Eldon in Ex parte Bennett, 10 Vesey, 881. In this case he held, that as the solicitor to a commission of bankruptcy could not purchase at a sale of the bankrupt's effects, for the reasons above stated, so a sale made to a person who had requested the solicitor to employ another at the sale to bid for him, was set aside. He ' Paley on Agency, 10, 11, 83-36 ; 1 Story, Equity Jurisp. §§ 310-316 ; Cane t). Allen, 2 Dow, 289, 299 ; Poillon v. Martin, 1 Sandf. Ch. 669 ; Howell v. Ran- som, 11 Paige, 638; Evans v. Ellis, 6 Denio, 640. 254 AGENCY. [CH. Til. agency in particular transactions, for in those transactions the purchase of the agent has no validity whatever, independent of the ratification of the principal ; whereas, in the case of attorney said, ' If the principle be that the solicitor cannot buy for his own beneiit, I agree when he buys for another, the temptation to act wrong is less ; yet if he could not use the information he has for his own benefit, it is too delicate to hold that the temptation to misuse that information for another person is so much weaker, that he should be at liberty to bid for another.' He adds, ' Upon the general rule, both the solicitor and commissioner have duties imposed on them that prevent their buying for themselves ; and if that is the general rule, it follows of necessity that neither of them can be permitted to buy for a third person, for the court can, with as little effect, examine whether that was done by making an undue use of the information received in the course of their duty, in the one case as in the other. No court of justice could institute investiga- tion as to that point effectually, in all cases, and therefore the safest rule is that a transaction which, under the circumstances, should not be permitted, shall not take effect upon the general principle, as, if ever permitted, the inquiry into the truth of the circumstances may fail in a great proportion of cases.' And the sale for this reason was set aside. This case is referred to with approbation by Chancellor Kent, in Davoue v. Fanning, supra. It follows, therefore, that if the defendant Sherman was incapacitated to purchase for himself, he was equally incapacitated to act for the defendant Dean, or any other person, to make the purchase ; and on the authority of this case, if Dean was the sole purchaser, the same would be set aside. " There can be no question, I think, at the present time, that a director of a corporation is the agent or trustee of the stockholders, and as such has duties to discharge of a fiduciary nature, towards his principal, and is subject to the obli- gations and disabilities incidental to that relation. (Kobinson v. Smith, 3 Paige, 222 ; Angell & Ames on Corp. 268, 260 ; Percy v. Milladon, 3 La. 668 ; Hodges V. New-England Screw Co. 1 R. I. 321 ; Verplanck v. Merc. Ins. Co. 1 Edw. Ch. 84 ; Redfield on Railways, 494 ; Benson v. Hawthorne, 6 Young & Collyer, 326 ; The York & North Midland Railway Co. v. Hudson, 16 Beav. 486 ; Aber- deen Railway Co. v. Blaikie, 1 McQueen, 461.) In the latter case. Lord Oran- worth said, ' The directors are a body to whom is delegated the duty of managing the general affairs of the company. A corporate body can only act by agents, and it is, of course, the duty of those agents so to act as best to promote the interests of the corporation whose affairs they are conducting.' Says Vioe- Chancellor McCoun, in the case of Verplanck, supra, ' But when a corpora- tion aggregate is formed, and the persons composing it, either in virtue of the compact or by the express terms of the charter, place the management and con- trol of its affairs in the hands of a select few, so that life and animation may be given to the body, then such directors become the agents and trustees of the corporation, and a relation is created, not between the stockholders and the body corporate, but between the stockholders and those directors, who, in their character of trustees, become accountable for any wilful dereliction of duty, or violation of the trust reposed in them. I see no objection to the exercising of §§ 212, 213.] AUTHORITY, HOW EXECUTED. 255 and client, the purchase is valid, if it can be shown to have been made uberrimd fide, and without any advantage, taken from professional confidence on one side, or pressing necessity on the other.^ § 213. The Roman law asserted principles in most respects equal- ly comprehensive. Thus it is said in the pandects : " Tutor rem pupilli emere non potest. Idemque porrigendum est ad similia, id est, ad curatores, procuratores, et qui negotia aliena gerunt." ^ The same doctrine has been incorporated into the French law,^ and into that of other nations, deriving their jurisprudence from an equity power over such persons, in the same manner as it would be exercised over any other trustees.' " Neither are the duties or obligations of a director or trustee altered from the circumstance that he is one of a number of directors or trustees, and that this circumstance diminishes his responsibility, or relieves him from any inca- pacity to deal with the property of his cestui que ii-ust. The same principles apply to him as one of a number, as if he was acting as a sole trustee. It is not doubted that it has been shown, that the relation of the director to the stock- holders is the same as that of the agent to his principal, the trustee to his cestui que trust ; and out of the identity of these relations necessarily spring the same duties, the same danger, and the same policy of the law. " In the language of the plaintiff's counsel, it is justly said, ' Whether it be a director dealing with the board of which he is a member, or a trustee dealing with his co-trustees and himself, the real party in interest, the principal, is ab- sent, — the watchful and effective self-interest of the director or trustee seeking a bargain, is not counteracted by the equally watchful and effective self-interest of the other party, who is there only by his representatives, and the wise policy of the law treats all such cases as that of a trustee dealing with himself.' " The number of directors or trustees does not lessen the danger or insure security, that the interests of the cestui que trust will be protected. The moment the directors permit one or more of their number to deal with the property of the stockholders, they surrender their own independence and self- control. If five directors permit the sixth to purchase the property intrusted to their care, the same thing must be done with the others if they desire it. Increase of the number of the agents in no degree diminishes the danger of unfaithfulness. Whichcote v. Lawrence, 3 Ves. 740, was a case of several trustees. In this case Lord Lougborough says, ' There was more opportunity for that species of management, which does not betray itself much in the con- duct and language of the party, when several trustees are acting together. I am sorry to say there is greater negligence where there is a number of trus- tees.' "] ' 1 Story on Equity Jurisp. §§ 310-813. " Dig. Lib. 18, tit. 1, 1. 34, § 7 ; Dig. Lib. 26, tit. 8, 1. 5, §§ 2, 8 ; 1 Liverm. on Agency, ch. 8, § 6, pp. 417, 418 (ed. 1818) ; Ante, §§ 10, 210. ^ Pothier, Traite de Vente, n. 13. 256 AGENCY. [CH. Vll. the Roman law.^ In one respect, the Roman law seems to have stopped short of the principles of our equity jurisprudence ; for, by our law (as we have seen) it is immaterial, whether the pur- chase or sale be by a single trustee, or agent, acting alone, or by him acting in connection with other joint trustees or agents ; for in each case, the purchase or sale will be invalid.^ But according to the pandects, although a tutor cannot, at the same time, be both buyer and seller ; yet, if he has a co-tutor, who has also authority to buy or sell, he may become the buyer or seller, unless there is some fraud. " Item, ipse tutor et emptoris et venditoris officio fungi non potest. Sed enim, si contutorem habeat, cujus auctoritas sufficit, procul dubio emere potest. Sed si mala fide emptio intercesserit, nullius erit momenti." ^ The Roman law seems to have proceeded upon the notion, that the vigilance of the co-tutor, or co-agent, would sufficiently protect the interests of the pupil; or principal ; whereas, our law has pro- ceeded upon the wiser policy of deeming both equally guardians of his interests. § 214. The doctrine which we have been considering, is capar ble of a great variety of applications. But in all the cases, it is founded upon the same beneficial and enlightened policy, the protection of the principal, and the advancement of his interests. Thus, for example, if an agent, authorized to buy, should buy of himself, and the bargain is advantageous to the principal (as has been already hinted), the latter has his election to ratify it, or not ; if disadvantageous, he may affirm it, or repudiate it, at his pleasure.* On the other hand, if the agent makes any profits in the care of his agency by any concealed management, either in ' Ersk. Inst. B. 1. tit. 7, § 19 ; 1 Voet, ad Pand. Lib. 18, tit. 1, 9, p. 766. ' Ante, §§ 210, 211 ; 1 Liverm. on Agency, ch. 8, § 6, pp. 426, 427 (ed. 1818). » Dig. Lib. 26, tit. 8, 1. 5, § 2. * Ante, 192, 207, 210. [* An agent under a general authority to buy can- not purchase from himself without the knowledge or assent of his principal, and such a transaction is a breach of duty, and the contract is subject to rescission, irrespective of any question of actual fraud or injury. Conkey u. Bond, 36 N. Y. Ct. Ap. 427. And where an agent employed to sell land, sold it to a com- pany in which he was interested as a shareholder and director, it was held that he was entitled to no commission from his employer in respect to the sale. Salomons v. Pender, 3 H. & C. 639.] §§ 213-215.] AUTHORITY, HOW EXECUTED. 257 buying, or selling, or in other transactions on account of his principal, the profits will belong exclusively to the latter.^ § 215. Besides the duties and obligations, thus arising from the general relations of principal and agent, there are others, again, which may arise from an express contract, or from an implied contract. The former requires no explanation ; the lat- ter, ordinarily, arises from the usages of particular trades, or the habits and special dealings between the particular parties. The most important, in a practical view, to be here taken notice of, is the contract of guaranty by a factor, arising from the receipt of what is commonly called a del credere commission (the nature whereof has been already stated^), by which he, in effect, becomes liable, in the case of a sale of goods, to pay to his principal the amount of the purchase-money, if the buyer fails to pay it, when it becomes due. It has been sometimes suggested, that this contract makes the factor the primary debtor to his prin- cipal, on the sale. But this doctrine is unmaintainable, both upon principle and authority.^ The true engagement of the factor, in such cases, is merely to pay the debt, if it is not punctu- ally discharged by the buyer. In legal effect, he warrants or guaranties the debt ; and thus he stands more in the character of a surety for the debt, than as a debtor. Hence it is well estab- lished, that he is not liable to pay the debt, until there has been a default by the buyer.* [Still his undertaking is not so far collateral, as to be required to be in writing under the statute of frauds, as a promise to pay the debt of another.^ The receipt of acceptances from the buyer, although transmitted to the prin- ' Paley on Agency, by Lloyd, 37, 38 ; East India Co. v. Henchman, 1 Ves. jr. 289 ; Massey v. Davis, 2 Ves. jr. 317 ; Prevost v. Gratz, 1 Peters, Cir. 364 ; Ante, §§ 210, 211. ' Ante, §§ 33, 112; Post, §§ 234, 328; 1 Liverm. on Agency, 408 (ed. 1818) ; Paley on Agency, by Lloyd, 41 ; Smith on Merc. Law, 52 (2d ed.) ; Id. ch. 6, § 2, p. 98 (3d ed. 1843) ; Leverick v. Meigs, 1 Cowen, 645 ; 3 Chitty on Com. & Manuf. 220, 221. ' Ante, § 33 ; 2 Kent, Comm. Lect. 41, pp. 624, 625 (4th ed.) ; Thompson V. Perkins, 3 Mason, 232 ; Gall v. Comber, 7 Taunt. 558 ; Peele v. Northcote, 7 Taunt. 478; Morris v. Cleasby, 4 M. & Selw. 566, 574; Paley on Agency, by Lloyd, 41, note (d) ; Id. Ill, note ; Leverick v. Meigs, 1 Cowen, 645. ' Morris v. Cleasby, 4 M. & Selw. 574. ° Couturier v. Hastie, 16 Eng. Law and Eq. 662 ; 8 Exch. 40 ; Swan v. Nes- smith, 7 Pick. 220; Wolff «. Koppell, 6 Hill, 458; 2 Denio, 368; Bradley v. Richardson, 23 Vt. 720. AGENCY. 17 258 AGENCY. [CH. Til. cipal, will not discharge the agent ; but, there must be an absolute payment in money ; or some other mode of payment, authorized by the principal. ^ But, if the money is once received from the buyer, and the dealings between the parties require the agent to remit to his principal, he does not become a guarantor, of the payment of such remittance ; but he is deemed an ordinary fac- tor, liable only for due diligence in purchasing the remittance.^ § 216. Hitherto we have been chiefly considering the duties and obligations of agents to their principals. There are, how- ever, certain duties and obligations, which they may incur in their dealings with third persons, for the breach of which they become personally responsible to the latter. But these will be more properly and conveniently discussed in some of the succeed- ing chapters, as they are of a more limited extent, and fall naturally within the topics embraced therein.^ § 217. The duty of thus guarding the interests of the prin- cipal is not confined to cases where the agent may sacrifice his interests by attempts to further his own ; but the same protective policy extends to cases where the interests of strangers are sought to be asserted by the agent, adversely to those of the principal. Therefore it is, that an agent is not, ordinarily,, per- mitted to set up the adverse title of a third person, to defeat the rights of his principal, against his own manifest obligations to him ; or to dispute the title of his principal.* If, therefore, he' has received goods from his principal, and has agreed to hold them, subject to his order, or to sell them for him, and to account for the proceeds, he will not be allowed to set up the adverse title of a third person to the same goods, to defeat his obligations.^ ' Ante, § 98 ; Post, § 413 ; McKenzie v. Scott, 6 Bro. Pari. Cas. 280 (Tom- lin's ed.) ; Paley on Agency, by Lloyd, 41, 42 ; MuUer ». Bohlens, 2 Wash. Cir. 378. " Leverick o. Meigs, 1 Cowen, 646. But see McKenzie v. Scott, 6 Bro. Pari. Cas. by Tomlins, 286 ; 1 Liverm. on Agency, 408-411 (ed. 1818) ; Lucas V. Groning, 7 Taunt. 164; Paley on Agency, by Lloyd, 41, 42, and note; Smith on Merc. Law, 52 (2d ed.) ; Id. ch. 6, § 2, p. 98 (3d ed. 1843). ' Post, ch. 10, 260-301 ; ch. 12, §§ 308-322. " Kieran v. Sandars, 6 Adolph. & Ellis, 615 ; Nicholson v. Knowles, 5 Madd. 47 ; Collins v. Tillon, 26 Conn. 368. ^ HoU V. Griffin, 10 Bing. 246 ; Harman v. Anderson, 2 Campb. 243; Stew- ard V. Duncan, 2 Campb. 344; Dixon v. Hamond, 2 B. & Aid. 310; Goslin v. Birnie, 7 Bing. 339 ; White v. Bartlett, 9 Bing. 378 ; Roberts v. Ogilby, 9 §§ 215-217 a.] AUTHOEITT,' HOW EXECUTED. 259 And if he should agree by a receipt to hold them for such third person, such conduct would amount to a conversion of the prop- erty of his principal, for which an action would lie.^ An excep- tion, however, is allowed, where the principal has obtained the goods fraudulently, or tortiousiy, from such third person.^ The sa,me principle is upheld, as well in equity, as at law ; and there- fore, if an agent receives money for his principal, he is bound to . pay it over to him, and he cannot be converted into a trustee for a third person, by a mere notice of his claim.^ § 217 a. It is upon a somewhat analogous principle, connected with the want of privity, that an agent employed by a trustee Price, 269 ; Hardman v. Wilcock, 9 Bing. 382, note ; Kieran v. Sandars, 6 Adolph. & Ellis, 515; Hawes ». Watson, 2 B. & Cressw. 540; Paley on Agency, by Lloyd, 80, 81; Id. 53; Story on Bailm. § 110; Smith's Com- pendium of Merc. Law, ch. 5, § 2, p. 94 (3d ed. 1843). ' Holbrook v. Wight, 24 Wend. 169. See Witman u. Felton, 28 Mo. 602. ' Hardman v. Wilcock, 9 Bing. 382, note ; Taylor v. Plumer, 3 M. & Selw. 662. We are carefully to distinguish those cases, where the suit is brought by the principal, from those, where the suit is brought by a third person, claiming the property against the agent. The rights of the latter to maintain the suit are not affected by any thing that has passed between the principal and agent. If such third person has a good title to the goods, he may recover them, not- withstanding the bailment. See Ogle v. Atkinson, 5 Taunt. 759 ; Wilson v. Anderton, 1 B. & Adolph. 450 ; Story on Bailm. §§ 102, 103. There is a dictum in Ogle V. Atkinson, by Lord Chief Justice Gibbs, which contradicts the text, in which he refers to a point made, that the defendants (the agents) cannot refuse to deliver up the goods to the plaintiff (the principal) , from whom they received them; and he then says, " But, if the property is in others, I think that they may set up this defence." This dictum has been since treated as untenable. See Goslin v. Birnie, 7 Bing. 339 ; Paley on Agency, by Lloyd, 80, 81, and note ; Id. 53. [ * And the bailee of spurious goods, who has been requested by the persons injured not to part with them, as an injunction was going to be applied for, is justified in refusing to deliver them to his principal, although he has not received actual notice of an injunction, a reasonable time to obtain it not having elapsed. Hunt v. Manidre, 34 Beav. 157 and s. C. 11 Jur. N. s. 28. In this case, Sir J. Komilly, M. K., said, " The court acts upon the same principle in analogous cases. For instance, suppose that trust money is deposited with bankers, and they receive notice that the trustees are about to draw out the money, and apply it to their own purposes, and that a bill for an injunction is about to be filed, if after that they refuse to pay over to the trustees this court would restrain an action against the bankers to obtain the benefit of a breach of trust."] = Nicholson v. Knowles, 5 Madd. 47 ; Story on Bailm. §§ 102, 103 ; 2 Story, Eq. Jurisp. § 317. 260 AGENCY. [CH. TD. is accountable only to him, and not to the cestui que trust, -^ and a sub-agent ordinarily is accountable only to the superior agent, who has employed him, and not, generally, to the prin- cipal.^ But where, by the usage of trade, or otherwise, a sub- agent is employed, with the express or implied consent of the principal, there the original agent will not be responsible for the conduct of the sub-agent ; but the appropriate remedy of the principal for the misconduct or negligence of the sub-agent is directly against the latter,^ since a privity will, under such cir- cumstances, exist between them. In many cases of this sort, however, the agent may by' his own conduct render himself re- sponsible to his principal for the acts of the sub-agent, and for money received by him on account of his principal ; * as, for ex- ample, if he has participated or co-operated with the sub-agent in his improper acts, or misconduct, or deviation from duty. ' Myler v. Fitzpatrick, 6 Madd. 360; Ante, 201. " Cartwright u. Hately, 1 Ves. jr. 292; Pinto v. Santos, 6 Taunt. 447; Stephens v. Badcock, 3 B. & Adolph. 354 ; Ante, §§ 13-15, note ; Tickel v. Short, 2 Ves. 289 ; JEx parte Sutton, 2 Cox, 84 ; Soley v. Rathbone, 2 M. & Selw. 298 ; Cockran v. Irlam, 2 M. & Selw. 301, 803, note ; Myler v. Fitzpat- rick, 6 Madd. 860 ; Ante, § 201 ; Post, §§ 821, 822. " Paley on Agency, by Lloyd, 16, 17 ; Goswell v. Dunkley, 1 Str. 680. See Branby v. Coxwell, 2 Bos. & Pull. 438 ; Cockran v. Irlam, 2 M. & Selw. 301, note, 303 ; Merrick v. Barnard, 1 Wash. Cir. 479 ; Ante, §§ 14, 15, 201 ; Fos- , ter V. Preston, 8 Cowen, 198. In Cockran v. Irlam, 3 M. & Selw. 303, note. Lord EUenborough said, " A principal employs a broker from the opinion he entertains of his personal skill and integrity ; and a broker has no right, with- out notice, to turn his principal over to another, of whom he knows nothing. It appears to me, therefore, that there is no privity, either expressed or im- plied, between Campbell and Orr, and Hutchinson. There certainly was not any express privity ; neither can any be implied, unless the case had found, that the usage of trade was such as to authorize one broker to put the goods of his employer into the hands of a sub-broker to sell, and to divide the com- mission with^him. It is said, however, that Campbell and Orr drew bills on their broker for these goods, and that afterwards they received value for them ; but the case fails in establishing that point." See also Post, §§ 308, 813, 322, 458 a, 463 6, 453 c, 454 a. * Tabe? v. Perrott, 2 GaU. 565 ; Ante, § 201 ; Post, §§ 231 a, 313, 322. §§ 217 a-217 c] liabilities to principals. 261 CHAPTER YIII. liabilities op agents to theie principals. [* § 217 S. Liabilities of agents next considered : first, to their principals ; secondly, to third persons. 217 c. Whenever an agent violates his duty and a loss falls on his principal, thereby the agent is bound to make full indemnity ; sufiicient if loss is fairly attributable to agent's default. 218. Cases illustrating this subject. 219. Misconduct of the agent held to be sufiiciently proximate cause of loss to entitle principal to recover. 220. Agent not liable for merely remote consequences or accidental mischief from his negligence. 221. Measure of damages in various cases. 222. There must be an actual damage and not merely a probable or possible one. 223. No defence to an agent who has rendered himself hable by negligence, that his principal in other transactions has acquired greater advantages from his uncom- mon care, skill, and diligence. 224-226. When the principal may proceed in rem. 227. If the principal has clothed the agent -with an apparent title to his property he will be bound by agent's sale. 228. This principle governs the case of an agent disposing of negotiable securities. 229. Principal may follow other property into which his own has been converted, if he can distinctly trace it. 230. Same doctrine more fully acted upon in courts of equity. 231. Remedy of principal not confined to cases where there has been some tortious con- version of it. 231 a. Cases in which agent is responsible for money of principal received by sub-agent. 232. Joint agents having a common interest are responsible for the misconduct of each other. 233. Roman law adopted similar doctrine. 234. Principal and agent may vary by contract agent's responsibilty, except that no con- tract is valid to exempt agents from responsibility for their fraud.] § 217 b. Having thus considered the nature and extent of the duties and obligations of agents, we are, in the next place, ledto the consideration of the correlative topic of the liabilities of agents. These are naturally divisible into two general heads : (1.) Their liabilities to their principals ; and (2.) Their liabilities to third persons. § 217 e. And first, their liabilities to their principals. Prom what has been already said it is sufficiently clear, that wherever an agent violates his duties or obligations to his principal, whether it be by exceeding his authority or by positive miscon- duct, or by mere negligence or omission in the proper functions of his agency, or in any other manner, and any loss or damage 262 AGENCY. [CH. Till. thereby falls on his principal, he is responsible therefor, and bound to make a full indemnity .^ In such cases, it is wholly immaterial whether the loss or damage be direct to the property of the principal, or whether it arise from the compensation or reparation, which he has been obliged to make to third persons in discharge of his liability to them, for the acts or omissions of his agent.^ The loss or damage need not be directly or im- mediately caused by the act which is done, or is omitted to be done. It will be sufficient if it be fairly attributable to it, as a natural result, or a just consequence.^ But it will not be suffi- cient if it be merely a remote consequence, or an accidental mis- chief ; for in such a case, as in many others, the maxim applies, " Causa proxima, non remota, spectatur." * It must be a real loss, or actual damage, and not merely a probable or possible one.^ Where the breach of duty is clear, it will, in the absence of all evidence of other damage, be presumed that the party has sus- tained a nominal damage.^ § 218. "We may illustrate these remarks by some of the cases ' Paley on Agency, by Lloyd, 7, 71, 74, and note (2) ; Marzetti v. Williams, 1 B. & Adolph. 415 ; 1 Liverm. on Agency, ch. 8, § 3, p. 398 (ed. 1818) ; Dodge V. Tileston, 12 Pick. 328 ; Savage v. Birckhead, 20 Pick. 167 ; Attor- ney-General V. Corporation of Leicester, 7 Beav. 176 ; Wilson v. Short, 6 Hare, 366. . See Grant v. Ludlow, 8 Ohio St. 1. " ' Paley on Agency, by Lloyd, 7 ; Id. 294-304 ; Ante, §§ 200, 201 ; Arrott, 4). Brown, 6 Whart. 9 ; Harvey v. Turner, 4 Rawle, 223 ; Woodward v. Suy- dam, 11 Ohio (Stanton), 363; 1 Liverm. on Agency, 363 (ed. 1818) ; Pothier on Oblig. by Evans, note 458. In Louisiana, the civil code restricts the lia- bility of principals, for the delinquency and acts of their agents, in the func- tions in which they have employed them, to cases where the principal might have prevented the act which caused the damage, and has not done it. Code Civil of Louisiana, art. 2299 ; Strawbridge v. Turner, 8 Miller, La. 637. This is dilFerent, however, from the civil law, which creates a general liability for all the delinquencies and acts of agents, in matters within their authority. Pothier on Oblig. by Evans, note, 453. ' Caffrey v. Darby, 6 Ves. 490; Paley on Agency, by Lloyd, 9, 10, 16, 17; Jeffrey v. Bigelow, 13 Wend. 518. * Story on Bailm. §§ 615-524; Smith v. Condry, 1 Howard, Sup. Ct. 28; 6. c. 17 Peters, 20 ; Vicars v. Wilcocks, 8 East, 1 ; 2 Smith's Leading Cases, 800, and note (2d ed.) ; 1 Smith's Leading Cases, 132, note (2d ed.). ' Paley on Agency, by Lloyd," 7-9, 10, 74, 76 ; Ante, § 200, and note ; Post, §§ 217, 221 ; Webster v. De Tastet, 7 T. R. 167 ; Bell ». Cunningham, 3 Peters, 69, 85. See Harvey v. Turner, 4 Rawle, 223 ; Arrott v. Brown, 6 Whart. 9. ° Marzetti v. Williams, 1 B. & Adolph. 415. §§ 217 c, 218.] LIABILITIES TO PRINCIPALS. 263 already cited in the foregoing pages. And first, in relation to the point that the loss or damage need not be directly or imme- diately caused by the act or omission of the agent. Thus, if an agent should knowingly deposit goods in an improper place, and a fire should accidentally take place, by which they are destroyed, he will be responsible for the loss : ^ for, although the loss is not the immediate and direct consequence of the negligence, but of the fire ; yet it may be truly said, that it would not have occurred, except from such negligence. The negligence, then, was the occasion, although not strictly the cause, of the loss ; and the loss may be fairly attributed to it.^ So, if an agent should so negli- gently execute his duty in procuring a policy of insurance, as that the risk (as, for example, a peril of the seas, by which a loss was caused) should not be included in it ; the principal might, nevertheless, recover the amount of the loss against the agent, although the loss was directly caused by the peril of the seas.^ So, if an agent, who is bound to procure insurance for his prin- cipal, neglects to procure any, and a loss occurs to his principal from a peril, ordinarily insured against, the agent will be bound to pay the principal the full amount of the loss occasioned by his negligence.* So, if an agent to procure insurance should pro- cure the policy to be underwritten by insurers notoriously in bad credit, or insolvent, and a loss should occur therefrom, he would be bound to indemnify his employer against the loss.^ So, if an agent should improperly deposit the money of his prin- cipal in his own name in the hands of a banker, who should afterwards become insolvent, the loss must be ultimately borne by the agent.^ So, if a carrier-master of a ship should unne- ' Ante, § 200, and note ; Paley on Agency, by Lloyd, 9, 10, 16, 17. = Paley on Agency, by Lloyd, 9, 10, 16, 17 ; Ante, § 200. ' Mallough V. Barber, 4 Campb. 150 ; Park v. Hammond, 4 Campb. 344 8. c. 6 Taunt. 495 ; 1 Liverm. on Agency, ch. 8, § 1, pp. 341-354 (ed. 1818) Paley on Agency, by Lloyd, 18-21 ; 1 Phillips on Ins. ch. 22, pp. 619-524 Marsh, on Ins. B. 1, ch. 8, § 2, pp. 297-301 ; Ante, § 191. ' Paley on Agency, by Lloyd, 18-20; Wallace ». Telfair, 2 T. R. 188, note ; Smith v. Lascelles, 2 T. R. 187 ; Delaney v. Stoddart, 1 T. R. 24 ; Mor- ris V. Sumraerl, 2 Wash. Cir. 203 ; De Tastet v. Crousillat, 2 Wash. Cir. 132, 136; Ante §§190, 191,200. ' 2 Valin, Coram. Lib. 3, tit. 6, art. 3, p. 33 ; Ante, §§ 187, 191. " Caflfrey v. Darby, 6 Ves. 496 ; Paley on Agency, by Lloyd, 46, 47 ; Wren V. Kirton 11 Ves. 382 ; Ante, §§ 200, 208. 264 AGENCY. [CH. VIII. cessarily deviate from the proper course of the voyage, and the goods shipped should afterwards be injured by a tempest, or should be lost by capture, or other peril, the shipper would be entitled to a full indemnity from the shipmaster and ship- owner. ^ § 219. In all these cases, although the misconduct or negligence of the agent is not the direct and immediate cause of the loss; yet it is held to be sufficiently proximate, to entitle the principal to recover for the loss or damage ; for, otherwise, the principal would ordinarily be without remedy for such loss or damage; since the same objection would apply in almost all cases of this sort. It is true, that, in many cases of this sort, it may be said that it is not certain that the loss or damage might not have occurred, if there had been no such misconduct or negligence ; but this furnishes no objection to the recovery. Thus, if an agent has improperly sold goods on a credit, to a person not in good credit, it may be said, that he might have sold the goods to another person, apparently in good credit, who might have failed before the expiration of the credit.^ So, in the above case of a loss by tempest, or capture, or other peril after a deviation, it may be said, that the like loss might have occurred, if the vessel had continued on the voyage. But the law disregards such subtleties and niceties, as to causes and possibilities, and it acts upon the intelligible ground, that, where there has been mis- conduct or negligence in the agent, all losses and damages occur- ring afterwards, to which the property would not have been exposed, but for such misconduct or negligence, are fairly attrib- utable to it, as a sufficiently proximate cause, although not necessarily the immediate or nearest cause of the loss or dam- age. The doctrine, too, may be vindicated upon the broader ground of public policy, that no wrong-doer ought to be allowed to apportioji or qualify his own wrong ; and that, as a loss has actually happened, whilst his wrongful act was in operation and force, which is fairly attributable to his wrongful act, he ought not to be permitted to set up, as a defence, that there was a more immediate cause of the loss, acting upon the subject-matter at ' Davis V. Garrett, 6 Bing. 716 ; Parker v. James, 4 Campb'. 112 ; Dale V. Hall, 1 Wils. 281 ; Max v. Roberts, 12 East, 89 ; Story on Bailm. §§ 413, 609. 2 See ante, § 202. §§ 218-221.J LIABILITIES TO PRINCIPALS. 265 the same time, or a bare possibility of loss, if his wrongful act had not been done.^ § 220. In the next place, as to the point of the loss or dam- age being merely a remote consequence, or accidental mischief, from the negligence or omission of the agent. Thus, if an agent, who is bound to render an account, and to pay over moneys to his principal, at a particular time, should omit so to do, whereby the principal should be unable to pay his debts, or to fulfil his other contracts, and should stop payment and fail in business, or be injured in his general credit thereby, the agent would not be liable for such injury ; for it is but a remote or accidental consequence of the negligence.^ So, if an agent hay- ing funds in his hands, should improperly neglect to ship goods by a particular ship, according to the orders of his principal ; and the ship should duly arrive ; and, if the goods had been on board, the principal might, by future re-shipments and specula- tions, have made great profits thereon ; the agent will not be bound to pay for the loss of such possible profits ; for it is a mere contingent damage, or an accidental mischief.^ So, if an agent, bound to make a shipment to his principal from a foreign port, not being limited to any particular ship, should wholly neglect so to do ; and it should appear, that, if the shipment had been made, and had safely arrived in due season, the principal would have made great profits ; the agent would not be liable for such loss of profits ; for, as it could not, under such circum- stances, be absolutely ascertained, whether the shipment would have arrived at the port, or in what ship, or at what particular time, the loss or damage would be merely contingent and possi- ble.* The same reasoning would apply to a case, where, by the neglect of an agent to remit money, the principal has been prevented from engaging in a profitable speculation in some other business by his want of funds. § 221. In all cases of this sort, the law contents itself with ' Davis V. Garrett, 6 Bing. 716 ; Caffrey v. Darby, 6 Ves. 496. ' Short V. SkipTv;ith, 1 Brock. Cir. 103, 104. See Arrott v. Brown, 6 Whart. 9. ^ Bell -1). Cunningham, 3 Peters, 69, 84, 86 ; s. c. 5 Mason, 161 ; Ante, § 217 ; Post, § 221. * See The Amiable Nancy, 3 Wheat. 660, 661 ; Ante, § 217 ; Post, § 221 ; Smith V. Condry, 1 Howard, Sup. Cf. 28 ; s. c. 17 Peters, 20. 266 AGENCY. [CH. Tni. rules as to damages derived from sources having more cer- tainty and universality of application ; and founded upon the ordinary results of human transactions. Thus, if an agent im- properly withholds the money of his principal, he is made liable -for the ordinary interest of the country where it ought to be paid, and the incidental expense of remitting it, if it ought to be remitted.! g^^ jf ^i^g goods of the principal are negligently lost, or tortiously disposed of, by the agent, he is made liable for the actual value of the goods at the time of the loss or the conver- sion.2 So in the case, above supposed, of a non-shipment of goods by an agent, where the ship by which they were ordered to be sent, has safely arrived, the principal would be entitled to recover the actual value of the gdods at the port of arrival ; for, as the ship has safely arrived, that is the actual loss sustained by the principal by the non-shipment, although . that value may be greatly enhanced by the state of the market, beyond what the prime cost would have been at the port, where the shipment ought to have been made.^ So, if an agent is directed to invest the funds of his principal in a particular stock, and he neglects so to do, and the stock thereupon rises, the principal is entitled to recover the enhanced value, as if the stock had been pur- chased.* But possible or probable future profits, or contingent and speculative gains, would constitute no just ingredients in the estimate of such loss or damage from the uncertainty of their nature, the fluctuating and changeable elements on which they depend, and their utter inadequacy and unfitness, as a rule, in a great variety of cases where a wrong has been done to the principal.^ § 222. In the next place, there must be a real loss, or actual damage, and not merely a probable or a possible one. There- fore, if an agent is ordered to procure a policy of insurance for his principal, and neglects to do it ; and yet the policy, if pro- > Short V. Skipwith, 1 Brock. Cir. 103, 104. ' The Amiable Nancy, 3 Wheat. 660, 661 ; Pope v. Barrett, 1 Mason, 117 ; Woodward v. Suydam, 11 Ohio (Stanton), 363. ' Cunningham v. Bell, 3 Peters, 84, 85 ; Ante, § 220. * Short V. Skipwith, 1 Brock. Cir. 103. ' Bell V. Cunningham, 3 Peters, 69, 84, 86 ; s. c. 5 Mason, 161 ; The Amia- ble Nancy, 3 Wheat. 660, 661 ; Tide-water Canal Co. v. Archie, 9 Gill & John. 479, 635; Smith v. Condry, 1 Howard, Sup. Ct. 28; s. c. 17 Peters, 20; Ante, § 220. §§ 221-223.] LIABILITIES TO PRINCIPALS. 267 cured, would not have entitled the principal, in the events which happened, to recover the loss or damage, the agent may avail himself of that, as a complete matter of defence.^ Thus, if the ship to be insured has deviated from the voyage ; or the voyage or the insurance is illegal; or the principal had no insurable interest; or the voyage, as described in the order, would not have covered the risk, — in all such cases, the agent, although he has not fulfilled his orders, will not be responsible ; for the principal cannot have sustained any real loss or actual injury by the neglect.^ And, in such cases, it will make no difference, that if the insurance had been made, the underwriters might prob- ably have paid the loss or damage without objection ; for the right to recover is still an essential ingredient in the case against the agent.^ So, if the principal would have sustained a loss or damage, if his orders had been complied with, that would be an answer to a suit for the breach of them ; for there must not only be a wrong done, but a damage resulting therefrom.* However, as has been already stated, it will be presumed, unless the con- trary clearly appears, that the principal, by the breach of his orders, has sustained some damages ; and, if none other are established in evidence, he will be entitled to nominal damages.^ § 223. It will be no excuse for an agent who has rendered himself responsible by his negligence, or his deviation from orders, that he has, in other transactions, conducted himself so well, that his principal has derived greater advantages therein from his uncommon care, skill, and diligence. For it is his duty in all cases, to manage the business of his principal to the best advantage, and to his best ability. In this respect, as has been very properly said, the case of an ageilt does not differ from that of a partner under the Roman . law, who was not permitted to ' Paley on Agency, by Lloyd, 19-21, 74, 75; Marsh, on Ins. B. 1, eh. 8, § 2, pp. 297-305; 1 Phillips on Ins. oh. 22, pp. 519-524; 2 Phillips on Ins. ch. 22, pp. 363 ; Post, §§ 235, 238. ' Post, §§ 236, 238 ; Paley on Agency, by Lloyd, 19-21, 75, 76 ; Marsh, on Ins. B. 1, eh. 8, § 2, p. 300 ; Delaney v. Stoddart, 1 T. R. 22 ; Webster v. De Tastet, 7 T. R. 157 ; 1 Liverm. on Agency, ch. 8, § 3, pp. 386-390 (ed. 1818). ' Webster v. De Tastet, 7 T. R. 157 ; Formin v. Oswell, 3 Campb. 359 ; Paley on Agency, by Lloyd, 74-76. See De Tastet v. Crousillar, 2 Wash. Cir. 132; 1 Liverm. on Agency, ch. 8, § 3, pp. 386, 388 (ed. 1818). • Post, § 236. , ' Ante, § 217 ; Marzetti v. Williams, 1 B. & Adolph. 415. 268 AGENCY. [CH. Tin. set off the profits whicli the partnership had derived from his superior skill, attention, and diligence in one instance, against losses sustained by his negligence in other instances.^ " Non ob earn rem minus ad periculum socii pertinet, quod negligentia ejus periisset, quod in plerisque aliis industria ejus societas aucta fuis- set. Et hoc ex appellatione Imperator pronunciavit." ^ § 224. And not only will an action lie against an agent for losses and damages occasioned by any violation or neglect of his duty ; but, in many cases, -where it touches the property of the principal, the latter will be entitled to proceed in rem, and reassert his rights thereto ; a remedy which may sometimes be the only effectual means (as, for example, in case of the insol- vency of the agent) to secure to the principal an adequate re- dress.* When, therefore, the property of the principal is intrusted to the agent for a special purpose, — as, for example, for sale or exchange, if a transfer is made by him within the scope of the authority confided to him, a good title will be conveyed to the transferee. But when the transfer is made in a mode which is not within the scope of the authority confided to the agent, or with which the agent is not apparently clothed, or held out to the public to be clothed, no title to the property will be passed, and it may be reclaimed by the owner .^ We have already seen, that, in the case of a general agent, his acts are valid to bind the principal within the scope of the general authority, with which his agency apparently invests him, notwithstanding any private secret instructions, which restrict or vary that authority.^ But, if the person dealing with such an agent has notice of such instructions or variations, he cannot acquire any title to the property, which is transferred in violation of them.^ ' 1 Liverm. on Agency, p. 384 (ed. 1818). ' Dig. Lib. 17, tit. 2, 1. 25 ; S. P. Dig. Lib. 17, tit. 2, 1. 26. ' Paley on Agency, by Lloyd, 335, 837, 388, 340-442. The particular reme- dies, which are to be pursued, either in personam, or in rem, are more proper for a treatise on pleading, than for one, like the present, which seeks only to expound the general rights and duties incident to agency. See 1 Liyerm. on Agency, ch. 8, § 3, pp. 375-386 (ed. 1818) ; Paley on Agency, by Lloyd, P. 2, §§ 1-4, pp. 56-99. * Paley on Agency, by Lloyd, 78, 79, 825, 340, 341 ; 3 Chitty on Com. & Manuf 204 ; Boyson v. Coles, 6 M. & Selw. 14. " Ante, §§ 70-73, 126-133. ' Ibid. [* Calais, &c. Co. v. Van Pelt, 2 Black (U. S.), 372.] §§ 223-227.] LIABILITIES TO PRINCIPALS. 269 § 225. Similar considerations will apply to cases of general agency, where, from the usage of trade or otherwise, persons dealing with the agent have knowledge, that he is transcending the ordinary and accustomed modes of transacting the like busi- ness ; for they are presumed to understand the restrictions and limitations, thus imposed upon the general agency and are bound by them.^ Thus, a person dealing with a factor or broker is bound to know, that, by law, a factor or broker, although a general agent, is not clothed with authority to pledge, deposit, or transfer the property of his principal for his own debts ; and, if he receives such a deposit or pledge, the title is invalid, and the property may be reclaimed by the principal.^ And in such a case, it is wholly immaterial whether the pledgee knew that the party with whom he was dealing was a factor or broker, or not. If he knew the fact, he was also bound to know the law applicable to it. If he did not know the fact, his own ignorance would not, ordinarily, enlarge his rights against the principal ; since the latter has not held him out to the public as having such an authority.^ § 226. The same principle applies, where the act of the agent is not justified by the usage of trade. Thus, for example, by the usage of trade, a sale of goods may ordinarily be made by a factor on credit ; but, by the like usage of trade, a sale of stock by a broker is always understood to be a sale for ready money.* Hence, if a broker should sell stock on a credit, the sale would be invalid ; and the principal would be entitled to recover it back.^ § 227. Cases, indeed, may arise, in which the principal may be bound ; as, if he has clothed the agent with all the apparent muniments of an absolute title, and authorized him to dispose ' Paley on Agency, by Lloyd, 340, 341. ' Post, §§ 229, 389; Paley on Agency, by Lloyd, 340-342; Id. 218, 219; 1 Liverm. on Agency, 129, 130-149 (ed. 1818) ; Ante, § 113 ; Bouchout v. Goldsmid, 6 Ves. 211, 213; 3 Chitty on Com. & Manuf. 204, 206; Van Amringe v. Peabody, 1 Mason, 440 ; Boyson v. Coles, 6 M. & Selw. 14. » Paley on Agency, by Lloyd, 213-216, 218-220, 340, 341 ; Newson v. Thornton, 6 East, 17 ; Jackson v. Clarke, 1 Young & Jerv. 216 ; Glyn v. Baker, 13 East, 609 ; Barton v. Williams, 6 B. & Aid. 396 ; s. c. 8 Bing. 139 ; 3 Chitty on Com. & Manuf. 204, 206 ; 2 Kent, Comm. Lect. 41, pp. 626, 626 (4th ed.). " Ante, §§ 60, 108, 110. * Paley on Agency, by Lloyd, 212, 213 ; Wiltshire v. Sims, 1 Campb. 268 ; Post, § 229. 270 AGENCY. [CH. VHI. of the property, as sole owner, and the pledgee has notice of the agency;^ Thus, although a broker, employed to purchase, has, ordinarily no authority to sell ; still, if the principal invests him with the apparent legal ownership, he will be bound by a sale made by the broker.^ [So, where a principal accepted bills of exchange, drawn on him by his agent, payable to the order of the agent, who agreed to have them discounted for the benefit of the principal ; and the agent, assuming to be the owner of the bills, pledged them to a bond fide holder, to secure money bor- rowed for his own use ; it was held, that the principal, having enabled the agent to hold himself out as owner, was bound by the pledge.^] § 228. This latter principle lies at the foundation of the well- established doctrine, that if an agent is intrusted with the dis- posal of negotiable securities or instruments, and he disposes of them by sale, or pledge, or otherwise, contrary to the orders of his principal, to a bond fide holder without notice, the prin- cipal cannot reclaim them ; for it is said, that the title of the holder, in cases of negotiable instruments, is derived from the instrument itself, and not from the title which the party has, from whom he received them.* But the better reason is, that the principal, in all such cases, holds out the agent, as having an unlimited authority to dispose of and use such instruments, as he may please. And, indeed, negotiable instruments, when ' Paley on Agency, by Lloyd, 218-220, 325 ; Boyson v. Coles, 6 M. & Selw. 14 ; Post, § 443. This constitutes the very difficulty, as to the doctrine of the non-existence of a right to pledge by a factor. As a new question, there might be great reason to contend, that a factor, being clothed with the apparent pos- session and ownership, has a right to pledge, as the exercise of a minor right, than that of selling. But the point has been too firmly established by adjudi- cation to admit of further judicial controversy. See ante, §§ 73, 113, 126-133 ; Post, §§ 419-421 ; Paley on Agency, by Lloyd, 218-221, note (3) ; 1 Liverin. on Agency, 149 (ed. 1818). ' Paley on Agency, by Lloyd, 218-220 ; Baring v. Corrie, 2 B. & Aid. 137, 145; 2 Kent, Comm. Lect. 41, pp. 626, 627 (4th ed.) ; 3 Chittyon Com. & Manuf. 202 ; Pickering v. Busk, 15 East, 38 ; Whitehead v. Tuckett, 15 East, 400; Boyson v. Coles, 6 M. & Selw. 14; Martini v. Coles, 1 M. & Selw. 140; Laussatt v. Lippincott, 6 Serg. & R. 386 ; Moore v. Clementson, 2 Campb. 22 ; Story on Bailm. §§ 324-326. ' Clement v. Leverett, 12 H. H. 317. ' Paley on Agency,. by Lloyd, 90-95, 233-238 ; 1 Liverm. on Agency, 304, 305 (ed. 1818) ; Coddington v. Bay, 6 John. Ch. 64; s. C. 20 John. 637. §§ 227, 228.] LIABILITY TO PRINCIPALS. ' 271 indorsed in blank, or payable to bearer, are treated as a sort of currency, and pass in the market without inquiry as to the title of the holder ; ^ and the negotiability of all instruments would be greatly impaired, if not wholly destroyed, by a different doc- trine.^ Of course, the doctrine does not apply to cases, where, ' Miller v. Race, 1 Burr. 452 ; Grant v. Vaughan, 3 Burr. 1516 ; Peacock ». Rhodes, Doug. 633 ; Bolton v. Puller, 1 Bos. & Pull. 539 ; Collins v. Martin, 1 Bos. & Pull. 648. ' Paley on Agency, by Lloyd, 233, 234. Questions under this head most commonly arise, where negotiable instruments have come into the hands of bankers. The leading principles on this subject have been collected by Mr. Lloyd, in a note to Paley on Agency, by Lloyd, p. 91, note, which, as of gen- eral practical utility, is here transcribed. ' ' As the subject " (says he) ' ' here treated of is one of great importance to all persons engaged in trade, it may be well to state, concisely, what is conceived to be the present state of the law affecting it. And (1^) A banker is to be considered as the agent of his cus- tomer. If property of the customer come into his hands, to be dealt with in a particular manner, he is, as to that property, the factor of the customer, having the rights and liabilities belonging to that character. (2.) Bills not due, paid in by a customer to his banker are, in the absence of evidence to the contrary, presumed to be placed with him as an agent to procure the payment of them when due, and in such cases the property remains in the customer. Giles v. Perkins, 9 East, 12. (3.) If they are indorsed by the customer, the legal property in them is changed. Lang v. Smyth, 7 Bing. 284. (4.) And, if they are also discounted by the banker for the customer, they become the absolute property of the banker, and of course pass to his assignees, as part of his estate ; Carstairs v. Bates, 3 Campb. 301 ; and the indorsement is prima facie evidence of discounting. Ex parte Twogood, 19 Ves. 229. (5.) The taking of the banker's acceptances, in exchange for bills paid in and indorsed, is tantamount to a discounting, and, even though the banker's acceptances be dishonored, the bills will, nevertheless, pass to his assignees. Hornblower v. Proud, 2 B. & Aid. 327. (6.) But bills may be indorsed by the customer (and so the legal property be changed), and may yet remain in the hands of the banker, clothed with a trust for the customer ; in which case, as has been already said, they do not pass to the assignees of the banker upon his bankruptcy. And the difficulty in most cases is, to determine whether such a trust exists or not. (7.) When the bills are entered short by the banker, that is to say, when they are entered as bills not yet available, and not carried to the general cash account, there is no doubt that they do not pass to the assignees, but must be given up to the cus- tomer. 1 Rose, 154. (8.) And even though the banker have entered them in his own books as cash, and allowed his customer credit in account generally upon them, this will not, of itself, affect the customer, as the banker's books can be no evidence for himself or his assignees. 1 Rose, 239. (9.) Much less, if the customer have expressly directed the banker to get payment of them when due, or forbidden him to negotiate them ; or the course of dealing between them raise an inference of such direction or prohibition. 1 Rose, 243. 272 AGENCY. [CH. Tin. upon the face of the instrument, there is a restricted authority ; or, where the holder has knowledge, or notice, of the validity of the title ; ^ or where he has acquired his title by fraud.^ This (10.) If the customer have given the banker a limited authority to negotiate them under certain circumstances, as in reduction of the cash balance, when- unfavorable, or the like ; this will, of course, not extend to other circumstances, or to more bills, than are sufficient for the purpose, and indeed will, of itself, negative any general authority to dispose of them. Ibid. (11.) But if a gen- eral authority to negotiate them had been either expressly given, or is to be inferred from the course of dealing known and assented to by the customer, then, it seems, the customer is to be considered as having abandoned all prop- erty in the bills, which, consequently, pass to the assignees. (12.) What circumstances are sufficient to raise the inference of such a general authority, is a question of some nicety. Lord Eldon seems to have been of opinion, that if the bills were entered as cash, with the knowledge of the customer, and he drew, or was entitled to draw, upon the banker, as having that credit in cash, he would thereby be precluded from recurring to the bills specifically. Ex parte Sargeant, 1 Rose, 153 ; Ex parte Sellers, ib. 165 ; Ux parte Pease, ib. 232 ; Ex parte The Wakefield Bank, ib. 243 ; Ex paiie The Leeds Bank, ib. 264; and see 18 Ves. 229, 233; 19 Ves. 26, s. c. However, in all these cases his lordship held the assignees to very strict proof of such a course of dealing ; and, in the absence of such proof, decided that there was no such general authority. The opinion of Lord Eldon, as conveyed in this dictym, ' Paley on Agency, by Lloyd, 236-238 ; Treutell v. Barandon, 8 Taunt. 100 ; Collins v. Martin, 1 Bos! &Pull. 648 ; Sigouruey v. Lloyd, 8 B. &Cressw. 622 ; Post, § 231. " Paley on Agency, by Lloyd, 238, 239 ; Solomons v. Bank of England, 13 East, 136, n. ; Goodman v. Harvey, 4 Adolph. & Ellis, 870. What will amount to notice, or fraud, is in some cases a matter of great nicety. At one time, it was thought that receiving a negotiable instrument, under circum- stances which might excite some suspicion, or amount to gross negligence in the holder, was sufficient to invalidate his title. But it is now settled, that the conduct of the holder must amount to mala fides, and even gross negligence will not avoid his title. Goodman v. Harvey, 4 Adolph. & Ellis, 870 ; Arbonin V. Anderson, 1 Adolph. & Ellis, New R. 498, 604. In this last case, Lord Denman said, " Acting upon the case of Goodman v. Harvey, which gives the law now prevailing on this subject, we must hold that the owner of a bill is entitled to recover upon it, if he has come by it honestly ; that that fact is im- plied prima facie by possession ; and that, to meet the inference so raised, fraud, felony, or some such matter, must be proved. Here is a possession not so accounted for ; and I think the replication entitles the plaintiff to recover." Story on Bills of Exchange, §§ 193, 194, 415, 416. [* The representations of an agent, who is employed to sell negotiable paper, that it is valid as business paper, will bind his principal. Ferguson v. Hamilton, 35 Barb. 427.] §§ 228, 229.] LIABILITIES TO PRINCIPALS. 273 subject will hereafter occur in other connections ; and, therefore, may now be passed over without further comment.^ § 229'. And not only may the principal, in many cases, follow has been adopted and acted upon by the present vice-chancellor, in a recent •case of Ex parte Thompson, 1 Mont. & McArthur, 312, which was certainly a strong case ; for there, in an account of four years, there were but three entries of actual cash paid, — the rest of the entries being entirely of bills, against which the remitters had been in the habit of drawing very extensively. On the other hand, it is said that it is immaterial whether such a general authority exists, either expressly or from the course of dealing, if, at the time of the bankruptcy, the bills, in fact, remained in specie in the hands of the bankers, and the cash balance were in favor of the customer. And, at all events, it is insisted the circumstance of the customer taking credit for the bills, and draw- ing, or considering himself entitled to draw against them, does not make them the bills of the banker; because, in the actual course of trade, such a privilege is a consequence of paying in bills. The former part of this proposition is the opinion of Mr. Deacon, and is not without the support of good reasoning, although it must be considered as doubtful. Law and Practice of Bankruptcy, vol. 1, p. 432. The latter part is borne out by the case of Thompson v. Giles, 2 B. & Cressw. 422 ; and Ex parte Armistead, 2 G. & J. 371. (13.) The right to reclaim extends not only to the specific bills, or securities, but to the substitutes for, or proceeds of them, so long as they continue in the same hands and are specifically ascertainable. Vulliamy v. Noble, 8 Mer. 593. (14.) But if the proceeds cannot be distinguished from the general stock of the banker, the right of the general creditors prevails, and the customer must come in ratably with the rest. And herein consists, principally, the evil of the indorsing of the bills by the customer, as it gives the banker the opportunity of negotiating them. (15.) Neither can the customer follow them into the hands of third parties, who have obtained them hona fide, and for value, al- though negotiated by the banker against good faith. Ex parte Pease, 1 Rose, 232 ; Collins u. Martin, 1 Bos. & Pull. 648 ; lb. 546. (16.) The banker, like a factor, has a general lien for advances made, and a right to be indemnified for liabilities contracted on account of his principal, and the claim of the cus- tomer will consequently be modified by the state of the account. Therefore, if the cash balance is against the customer, or if the banker has advanced money specifically upon the bills remitted, or has accepted other bills for the accom- modation of the customer, the assignees will have a right to retain the bills, and even to put them in suit, until those sums are repaid, and those liabilities discharged ; that is to say, they will be entitled to a deduction of the amount in the first case, and to an indemnity in the second. Jourdaine v. Lefevre, 1 Esp. N. P. C. 66 ; Davis u. Bowsher, 6 T. R. 488 ; Scott v. Franklin, 16 East, 428 ; Bosanquet w. Dudman, 1 Stark. N. C. P. 1 ; BoUand v. Bygrave, B. & M. 271 ; Ex parte -Warring, 2 G. & J. 403, and the cases before cited. (17.) It ' Post, §§ 231, 404-406, 419-421. 18 274 AGENCY. [CH. VHI. his own property into the hands of third persons, where it has been transferred or disposed of by an agent, contrary to his in- structions, or duty, but the principle is still more extensive in its reach ; for, if it has been converted into, or invested in other property, and can be distinctly traced, the principal may follow it, wherever he can find it, and as far as it can be thus traced, subject, however, to the rights of a bond fide purchaser for a valuable consideration without notice, in all cases where the latter is entitled to protection.^ It will make no difference, in law, as, indeed, it does not in reason, what change of form, dif- ferent from the original, the property may have undergone, whether it be changed into promissory notes or other secutities, or into merchandise, or into stock, or into money .^ For the prod- uct of the substitute for the original thing still follows the nar ture of the thing itself, as long as it can be ascertained to be such ; and the right only ceases, when the means of ascertain- ment fail ; which is the case, when the subject, being goods, is turned into money, which is mixed and confounded in a general mass of the same description ; or when the subject, being money, has been converted into specific property of another kind, having before that time lost, as it were, its ear-mark and identity, and become incapable of being distinguished from the mass of the com- mon moneys of the agent.^ But money in a bag, or otherwise is a consequence of the right to an indemnity, that, although the holder of the banker's acceptances in favor of the customer cannot directly come in, and claim in his place as against the assignees of the banker ; yet, if the customer also become bankrupt, while these acceptances are outstanding, as the holders must be satisfied before the assignees of customers can be entitled to the bills, the court of bankruptcy will order such an arrangement between the two estates, as to render the claim of the bill-holders indirectly available. Ex parteyfsi- ing, 2 Rose, 182; JEx parte Inglis, 19 Ves. 346; Ex parte Parr, Buck, 191." See also Clark v. Merchants' Bank, 1 Sandf. Sup. Ct. (N. Y.) 498. ■ Ante, §§ 227, 228; Post, § 281; Taylor «. Plumer, 3 M. & Selw. 562; 1 Liverm. on Agency, 278-280 ; Ante, §§ 225, 226 ; Post, §§ 436-439. " Ibid.; Scott v. Surman, Willes, 400; Whitcomb v. Jacob, 1 Salk. 160; Ryall V. RoUe, 1 Atk. 172 ; Lane v. Dighton, Ambler, 409 ; Greene ». Haskell, 6 R. I. 447 ; Thompson v. Perkins, 3 Mason, 232 ; Hourquebie «. Gerard, 2 Wash. Cir. 212 ; Chedworth v. Edwards, 8 Ves. 49 ; Lench v. Lench, 10 Ves. 611 ; Jackson ii. Clarke, 1 Y. & Jerv. 216. ' Ibid. ; Conard v. Atlantic Ins. Co. 1 Peters, Sup. Ct. 886. [If the owners of property have intrusted it to an agent for a special purpose, and the agent, in violation of his duty, has unlawfully consigned the same to be sold, with ^ .;J J §§ 229-231. J LIABILITIES TO PRINCIPALS. 275 kept apart from other money, or guineas, or other coin, marked or otherwise specially designated, for the purpose of being distin- guished, is treated as so far ear-marked, as to fall within the rule already stated, while it remains in the hands of the agent, or of his general personal representatives.^ § 230. The same doctrine is still more fully acted upon in courts of equity ; for, if an agent or trustee has wrongfully in- vested the money or trust property of the principal, or cestui que trust, in land, and it can be distinctly traced, equity will follow it into the land, and hold the legal owner to be a trustee thereof for the benefit of the party, whose money or trust property has been so invested.^ § 231. The foregoing cases turn upon the wrongful conduct of the agent in the discharge of his appropriate duties. But the remedy of the principal, to recover back his own property, is not confined to cases where there has been some tortious conversion of it. On the contrary, if there has been no misconduct in the agent, the principal is entitled, in all cases, where he can trace his property, whether it be in the hands of the agent, or of his representatives or assignees, or of third persons, to reclaim it, directions to remit the proceeds to a private creditor of his own, and such creditor, upon being informed by a letter from the consignee of the consign- ment of the property and directions in reference to the same, manifests his assent thereto by unequivocal acts, and the -property is sold by the consignee, and bills of exchange, payable to the agent's creditor or his order, are purchased with the proceeds, and remitted in a letter addressed to him, in compliance with the directions, and the creditor, after receiving notice of the intended remittance, and after manifesting his assent thereto, and after the remittance is actually made, but before it is received, learns for the first time of the manner in which the agent became possessed of the property, and of his wrongful acts in reference to it, the original owners of the property cannot maintain an action for money had and received against such creditor, to recover the amount collected by him upon the bills of exchange. Le Breton v. Peirce, 2 Allen, 8.] ' Taylor v. Plumer, 3 M. & Selw. .562, 576 ; Whitcomb v. Jacob, 1 Salk. 161 ; Scott V. Surman, Willes, 400 ; Paley on Agency, by Lloyd, 90-96 ; God- frey V. Furzo, 3 P. Will. 185 ; 1 Liverm. on Agency, 278, 279, 287. The judgment of Lord Ellenborough, in Taylor v. Plumer, 3 M. & Selw. 562, on this whole subject, is very masterly, and contains a thorough review of all the authorities on the subject-matter of the text. See also Jackson v. Clarke, 1 Y. & Jerv. 216. ' Lane v. Dighton, Ambler, 409 ; Lench v. Lench, 10 "Ves. 617 ; Boyd v. McLean, 1 John. Ch. 682. 276 AGENCY. [CH. VIII. unless it has been transferred bond fide to a purchaser without notice ; subject, however, to the lien and other rights of the agent.' And, in such cases, it is wholly immaterial, whether the property be in its original state, or has been converted into money, or secu- rities, or negotiable instruments, or other property, so only that it is distinguishable and separable from the other property and assets of the agent, and has an ear-mark or other appropriate identity .2 Upon this same ground, if an agent purchases prop- erty for his principal, and takes a bill of sale in his own name, paying the money of his principal therefor, the latter may compel the agent to transfer the property to him.^ This is a very im- portant right, especially in cases of the bankruptcy, insolvency, or death of the agent. § 231 a. Cases may also arise, where agents will be respon- sible to their principals for money of the latter, received by sub- agents, although the money has never reached the hands of the agents. Thus, for example, if an agent is employed to collect and receive payment of bills of exchange, due to the principal, and the agent transmits them to his own private agent to recover the money on the same bills, and orders such sub-agent to place the amount, when received, to his (the agent's) credit, payment to such sub-agent is payment to the original agent; and the principal will be entitled to recover the amount from the agent, although the same may be lost by the failure and insolvency of the sub-agent ; for in such case the loss properly falls on the agent, and not on the principal.* A fortiori, this doctrine will apply, where the amount in the hands of the sub-agent is drawn for by the agent, by a bill in favor of a third person, and the bill has been accepted by the sub-agent before his failure and insol- vency.^ § 232. The remarks, which have been already made, as to the responsibility of agents to their principals, apply not only to cases of a sole agency, but also to those of a joint agency. * 1 Liverm on Agency, 75-277 (ed. 1818) ; Ante, §§ 227, 229. = Taylor v. Plumer, 3 M. & Selw. 562 ; Veil o. Mitchell's Adm'rs, 4 Wash, Cir. 105 ; Thompson v. Perkins, 3 Mason, 232 ; Scott v. Surman, Willes, 400; Paley on Agency, by Lloyd, 90-96 ; Jackson v. Clarke, 1 Y . & Jerv. 216 ; Ante, §§ 228, 229. ^ Hall V. Sprig, 7 Miller, La. 245. * Taber v. Perrott, 2 Gall. 565 ; Ante, § 201 ; Post, § 429. * Ibid. §§ 231-234.] LIABILITIES TO PRINCIPALS. 277 Where joint agents are employed, who have a common interest, they are liable for the acts, misconduct, and omissions of each other, in violation of their duty. Thus, for example, joint fac- tors are liable for each other's doings and omissions ; and it will be no discharge of one, that the business has been, in fact, wholly transacted by the other, with the knowledge of the prin- cipal ; for in such cases, the principal still trusts to the joint responsibility .1 And if the joint agents are to receive a joint commission, or to share in the profits of their business, it will make no difierence in their responsibility to the principal, that it is privately agreed between themselves, that neither shall be liable for the acts or losses of the other, but each is to be liable only for his own.^ § 233. The Roman law adopted a similar doctrine, as founded in a most persuasive equity. Thus, in the Digest, the language of Scaevola is approved : " Duobus quis mandavit negotiorum administrationem ; qusesitum est, an unusquisque mandati ju- dicio in solidum teneatur ? Respondi ; unumquemque pro solido conveneri debere ; dummodo et utroque non amplius debito exi- gatur." '^ § 234. The liabilities of agents, which we have been thus far consid,ering, are those which arise by the general principles of law, independent of any special contracts made by the partic- ular parties. It is, of course, competent for the parties to vary, or restrict, or enlarge, these general liabilities, by contract, ac- cording to their pleasure, with the exception, that no con'tract can be valid which stipulates to exempt agents from responsi- bility for their own fraudulent acts. Such a stipulation would be against good morals and public policy, and would be treated therefore as utterly void.* In a treatise like the present, it is not necessary to consider what would be the true interpretation or result of particular stipulations of this sort. Contracts for a del credere commission, which amount to a guaranty of debts ' Paley on Agency, by Lloyd, 62, 53 ; 1 Liverm. on Agency, ch. 4, § 1, pp. 79-84 (ed. 1818) ; Wells v. Ross, 7 Taunt. 403. " Paley on Agency, by Lloyd, 52, 63; 1 Liverm. on Agency, ch. 4, § 1, pp. 80-87 (ed. 1818; Godfrey v. Saunders, 3 Wils. 94; Waugh v. Carver, 2 H. Bl. 237. ' Dig. Lib. 17, tit. 1, 1. 60, § 2 ; 1 Domat, B. 1, tit. 16, § 3, art. 13. ' Story on Bailm. § 32; Dig. Lib. 60, tit. 17, 1. 23; Jones on Bailm. 11, 48; Heinecc. Elem. Jurist Inst. Ps. 3, Lib. 3, tit. 14, § 786. 278 AGENCY. [CH. IX. contracted on sales by factors and others, are, however, of so common and general a character, that they may be properly taken notice of, as an appropriate illustration of the enlarged responsibility of agents resulting from contract. The nature and effect of this species of contract have been already consid- ered.^ CHAPTER IX. DEFENCES OP AGENTS AGAINST PRINCIPALS. [* § 235. Principal cannot maintain suit for redress of any sort against an agent where the subject-matter of the agency is an illegal, fraudulent, or immoral transaction, or against public policy. 236. No loss to principal, a good defence. 237. Overwhelming necessity or unforeseen emergency a defence. 238. Defence to an action for negligence that the performance of the duty could not have benefited the principal. 239. Batification by principal, a defence. 240. Distinction between ratification of void and of voidable acts. 241. Principle of distinction more properly applied to cases of contracts and acts illegal, immoral, or against public policy. 242. Act of agent assuming to act for another, but having no authority whatsoever, or exceeding authority, will bind principal if he ratifies it. 243. Ratification of agent's act, with full knowledge of all the facts by principal, will discharge him from responsibility. 244. Ratification binds principal in regard to third persons. 245-247. Qualifications of the foregoing rules. 248. Principal has the right to ratify the act if for his benefit, and to disavow it if to his injury. 249. Ratification of acts of sub-agent binds principal. 250. Principal cannot ratify a transaction in part and repudiate it in part. 261. Ratification of act done by agent as agent relieves the agent from all responsibility to third parties. 251 a. Ratification of act of agent can only be eflfectual between the parties when the act was done, avowedly for the principal. 252-2B4. What amounts to a ratification. Ratification of unsealed contracts most fre- quently by acts inpais. Illustrations. 256. Long acquiescence without objection, or silence of principal, affords sufficient pre- sumption in many cases of ratification of an unauthorized act. 266 a. Illustrations. 266. Where an agency actually exists, the presumption of ratification of an act from acquiescence is very much stronger. 257. Roman law proceeds upon same principles. ' Ante, §§ 33, 112, 216. §§ 234, 235.] DEFENCES AGAINST PRINCIPALS. 279 258. Whether a ratification will be presumed from silence will depend upon the relation between the parties, hahits of business, and usage of trade. 259. Collateral circumstances from which a ratification will be presumed. 260. In many cases ratification will be inferred from the mere habits of dealing between the parties.] § 235. In this connection, the consideration naturally arises of those matters which may properly be urged by agents, by way of defence or excuse, to repel the actions and claims brought against them by their principals, for violations or omissions of duty, or other delinquencies, touching their agencies. Some of these have been already incidentally mentioned ; but a short recapitulation, in this place, may not be without use. In the first place, the agent may insist, as a matter of defence, that the subject-matter of the agency is an illegal or an immoral trans- action, or is founded in fraud, or against public policy ; in all which cases, the principal will not be allowed to maintain any suit for redress of any sort against the agent, touching that trans- action.^ And this doctrine not only applies to suits founded upon matters of account, or receipts of money, or non-fulfilment of contracts by the agent in the course of such illegal transac- tions, or flowing therefrom ; but it applies equally to the recovery back of the property wliich has been intrusted to him, when it has been actually employed in such illegal, fraudulent, or im- moral purposes. Thus, if goods are intrusted to an agent, to be smuggled into a country, and sold there against its laws, the principal will be equally disabled to maintain a suit against the agent in the courts of that country for the goods themselves, as he will be to maintain a suit for the proceeds of the goods, if sold.2 The rule, in all such cases, is, " Melior est conditio possi- dentis." 3 ' Ante, §§ 195, 222 ; Paley on Agency, by Lloyd, 8, 20, 74, 75 ; Baxwell V. Christie, Cowp. 396 ; Webster v. De Tastet, 7 T. R. 157 ; Simpson v. Nicho- las, 3 Mees. & Wels. 240 ; Story on Conflict of Laws, §§ 243-262 ; 1 Story on Equity Jurisp. §§ 296-308 ; 1 Liverm. on Agency, ch. 1, § 2, pp. 14^22 ; Thomson ». Thomson, 7 Ves. 470 ; Canaan v. Bryce, 3 B. & Aid. 179 ; Langton V. Hughes, 1 M. & Selw. 593 ; Le Guen v. Gouverneur, 1 John. Cas. 436. « Ibid. ; Post, §§ 344^347. [* But it is held in Murray v. Vanderbilt, 39 Barb. 140, that an agent has no right to dispute the title of his principal to moneys paid to him on his principal's account ; nor can he resist the principal's suit therefor, on the ground that the money was paid on an illegal contract between the original parties.] ' Edgar V. Fowler, 3 East, 222. The doctrine in the text is (I conceive) the 280 AGENCT. [CH. IX. 236. In the next place, as we have seen, it is a good defence, or rather a good excuse, that the misconduct of the agent has been followed by no loss or damage whatsoever to the principal ; for then the rule applies, that although it is a wrong, yet it is without any damage ; and, to maintain ah action, both must con- true doctrine, notwithstanding some apparent discrepancies in the authorities. Perhaps, where moneys, or goods, are deposited with an agent, to effect an illegal object, and before any thing is done, the principal repents, and revokes the orders, he may recover back the money ; for he may have, until there is some part execution of the authority, a locus pcenitentice. See Ex parte Bul- mer, 13 Ves. 313 ; Taylor v. Lendey, 9 East, 49 ; Hastelow v. Jackson, 8 B. & Cressw. 222. But, if the moneys, or goods, have been actually put into a course of execution of the illegal purpose, it will be otherwise. Thus, if goods have been delivered to an agent, to be smuggled into the country, and they have been actually shipped and smuggled into the country, the principal cannot recover them from the agent who withholds them from him. So, if moneys are invested in goods for a like purpose, the money, or goods, cannot afterwards be recovered by the principal from the agent. In such cases, the right to recover is necessarily founded upon the very contract for illegal purposes. But, where the recovery from an agent is not sought through, or upon, the illegal contract, but upon a new collateral contract, not illegal, there it may be recovered. Thus, if an agent has received money from third persons for his principal by his authority, which money accrued from an illegal transaction, between the prin- cipal and such third persons, who had no connection with the agent, the principal may recover it from his agent, for, as between them, the receipt of the money for the principal is upon a legal contract, although the money itself accrued under a former illegal transaction. It is upon some ground of this sort, that we are to understand the cases of Faikney v. Reynous, 4 Burr. 2069, and Petrie ». Hanney, 8 T. R. 418, 419 ; Thomson v. Thomson, 7 Ves, 470 f Farmer i). Russell, 1 Bos. & Pull. 296 ; Tenant v. Elliott, 1 Bos. & Pull. 3. See Ex parte Bulmer, 13 Ves. 313 ; Steers v. Lashley, 6 T. R. 61 ; Booth v. Hodgson, 6 T. R. 405 ; Sullivan v. Greaves, 6 T. R. 406 n. ; Paley on Agency; by Lloyd, pp. 62, 63 ; 1 Liverm. on Agency, ch. 8, § 7, pp. 467-470 (ed. 1818). Indeed, some of these cases have been greatly doubted, and especially Faikney v. Eey- nous, 4 Burr. 2069, and Petrie «. Hanney, 3 T. R. 418. See Aubert v. Maze, 2 Bos. & Pull. 371 ; Canaan u. Bryce, 3 B. & Aid. 179 ; Bensley v. Bignold, 6 B. & Aid. 335 ; Ex paHe Daniels, 14 Ves. 191. In Canaan v. Bryce, 3 B. & Aid. 179, it waslield, that money, lent to a party to be applied by the bor- rower to settle illegal transactions, could not be recovered from the borrower. So, in McKinnell v. Robinson, 3 Mees. & Wels. 434, it was held, that money, lent for gaming to the borrower, could not be recovered from the latter. In- deed, it seems difficult to perceive, how either money, or goods, placed in the hands of an agent for illegal purposes, can be recovered back by the principal, as the delivery of the money, or goods, is in part execution of such purposes; and the possession of the agent is a direct result of the agreement to execute such purposes. But see Paley on Agency, by Lloyd. 64-66. §§ 236-238. j DEFENCES AGAINST PRINCIPALS. 281 cur ; for damnum absque injnrid and injuria absque dammo, are, in general, equally objections to any recovery.^ § 237. In the next place, the agent may defend hijoaself by showing, that, although he has violated his instructions or orders, or he has not otherwise performed his undertaking, yet he has acted under an overwhelming necessity, or has been prevented from acting by a like calamity ; or, that what he has done has- been from an unexpected or unforeseen emergency, to which the instructions or orders did not, or could not apply ; or, if they did apply, that he was compelled to act in order to prevent a greater loss or absolute ruin to his principal.^ § 238. In the next place, it is a good matter of defence to an action brought by the principal against his agent, for negligence in the performance of his duty, that, if the act had been properly done, the principal could have derived no benefit from it, but it would have been merely void, upon grounds of public policy.^ Upon this ground it was formerly held, that, if an agent sells goods to be delivered at a future day, and, at the time, the prin- cipal neither has the goods, nor has entered into any prior contract to buy them, nor has any reasonable expectation of receiving them on consignment, but he means to go into the market and buy the goods, which the agent has contracted to deliver, no action will lie against the agent for any negligence in such sale ; because the principal himself cannot maintain an action upon such a contract of sale made by himself; since such a contract amounts, on the part of the vendor, to a wager on the price of the commodity, and is attended with such mischievous consequences, as to be prohibited by public policy.* This case has been since overruled ; ^ but, although it can no longer be ' Ante, § 222 ; Post, § 238. * Ante, §§ 85, 118, 193-197, 208 ; 3 Chitty on Com. & Manuf. ch. 3, p. 218 ; The Gratitudine, 1 Rob. 257, 340 ; 1 Liverm. on Agency, ch. 8, § 2, pp. 368, 369 (ed. 1818) ; Dusar v. Perit, 4 Binn. 361 ; Forrestier v. Boardman, 1 Story, 43. [* In unforeseen circumstances of necessity or great urgency, a factor has an implied authority to act for his principal, irrespective of his instructions or the ordinary usages of trade, in adjusting contracts and claims and disposing of property. Greenleaf v. Moody, 13 Allen, 363.] » Ante, §§ 222, 235. ^ Bryan d. Lewis, 1 Ryan & Mood. 386. ' Hibblewhite v. McMorine, i6 Mees. & Wels. 202. In this case Mr. Baron Parke said, "I have always entertained considerable doubt and suspicion as to 282 AGENCY. [CH. IX. relied on as a fit illustration of the doctrine above stated ; yet there can be no doubt, that the principle on which it is founded is entirely correct, that the principal cannot avail himself of a right of action against his agent for negligence or misconduct in a contract between them, which is against public policy. Sup- posing, however, the case really to be, in the understanding and contemplation of both parties, a mere wager on the future state of the markets, although in the form of a contract of sale, there can be little doubt, that it ought to be deemed a gaming specula- tion, which no court should enforce or encourage, and which, at least in states where mere wagers are held to be void at the com- mon law, as against public policy, would be held incapable of sustaining any action for any breach of the contract.^ the correctness of Lord Tenterden's doctrine in Bryan v. Lewis ; it excited a good deal of surprise in my mind at the time ; and, when examined, I think it is untenable. I cannot see what principle of law is at all affected by a man's being allowed to contract for the sale of goods, of which he has not possession at the time of the bargain, and has no reasonable expectation of receiving. Such a contract does not amount to a wager, inasmuch as both the contracting parties are not cognizant of the fact, that the goods are not in the vendor's possession ; and, even if it were a wager, it is not illegal, because it has no necessary tendency to injure third parties. The dictum of Lord Tenterden certainly was not a hasty observation, thrown out by him, because it appears from the case of Lorymer v. Smith, that he had entertained and expressed similar notions four years before. He did not, indeed, in that case, say that such a contract was void, but only, that it was of a kind not to be encouraged; and the strong opinion he afterwards expressed appears to have gradually formed in his mind during the interval, and was, no doubt, confirmed by the effects of the unfortunate mercantile speculations throughout the country about that time. There is no indication in any of the books of such a doctrine having ever been promulgated from the bench, until the case of Lorymer v. Smith, in the year 1822 ; and there is no case, which has since been decided on that authority. Not only, then, was the doubt expressed by Bosanquet, J., in Wells V. Porter, well founded, but the doctrine is clearly contrary to law." Mr. Baron Alderson and Mr. Baron Maule fully supported the same doctrine. Ante, § 49, note. ' By the civil law, things not in existence, or possession, or ownership, might be sold. Thus, for example, fruits, which shall be gathered and are not yet in existence, animals not yet born, the next grapes of a vineyard, the wine of the next vintage may be sold. Nee emptio nee venditio sine re, qua3 veneat, potest intelligi. Et tamen fruetus, et partus futuri recte ementur; ut, cum editus esset partus, jam tunc, cum contractum esset negotium, venditio facta intelligitur. Dig. Lib. 18, tit. 1, 1. 8 ; Pothier, Pand. Lib. 18, tit. 1, n. 4-6. Here, the dis- tinction is clearly taken between an executed sale, and a contract of sale, or executory sale. Each is good. Sed, si id egerit venditor, ne nascatur, aut §§ 238, 239.J DEFENCES AGAINST PEINCIPALS. 283 § 239. But the most important point of defence, usually oc- curring in practice to suits for breaches of duty by agents, is that which involves the question of a ratification, by the princi- pal, of the acts or doings or omissions of his agent. Where the principal, upon a full knowledge of all the circumstances of the case,^ deliberately ratifies the acts, doings, or omissions of his agent, he will be bound thereby, as fully, to all intents and pur- poses,^ as if he had originally given him direct authority in the premises, to the extent which such acts, doings, or omissions reach. The maxim of the common law is, and it has been fully adopted into maritime and commercial jurisprudence, " omnis ratihabitio retrotrahitur, et mandato priori sequiparatur." * This fiant, ex empto agi posse. Dig. Lib. 18, tit. 1, 1. 8 ; Pothier, Pand. Lib. 18, tit. 1, n. 6 ; Pothier, Contrat de Vente, n. 5-7. So a mere hope, or expecta- tion in a thing, could be sold ; as for example, the next draught of a fish-net, or capture by a bird-trap, or.bird shot. Aliquando tamen, et sine re, venditio intelligitur ; veluti, cum quasi alea emitur ; quod fit, cum captus, piscium, vel avium, vel missilium emitur ; emptio enim contrahitur, etiamsi nihil incident, quia spei emptio est. Dig. Lib. 18, tit. 1, 1. 8, § 1. See also Pothier, Pand. Lib. 18, tit. 1, n. 8; 1 Domat, B. 1, tit. 2, § i, art. 3, 4; Heinecc. Elem. Jur. Instit. Lib. 3, tit. 24, § 905 ; Pothier, Contrat de Vente, n. 5-7. See Mr. Cushing's valuable translation of Pothier on Sale, u. 5-7, pp. 4, 6. So, by the civil law, a sale, and a contract of sale, could be made by a person who was not owner, even without the consent of the owner. Rem alienam distrahere quem posse, nulla dubitatio est ; nam emptio est et venditio. Sed res emptori auferri potest. Dig. Lib. 18, tit. 1, 1. 28 ; Pothier, Pand. Lib. 18, tit. 1, n. 18 ; 1 Do- mat, B. 1, tit. 2, § 4, art. 13; Pothier, Contrat de Vente, n. 7; Pothier on Oblig. n. 133, 136. Contracts for the sale of things, which the seller has not, at the time, are very common in stock-jobbing transactions ; and, if the doctrine in the case of Bryant v. Lewis, 1 Ryan & Mood. 386, ante, § 238, be correct, then, it would seem, that upon the principles of the common law, no action could be maintained by the seller for the price, upon a sale of stock, deliverable at a future day, which the seller did not then own, or had not a title to ; but which he meant to buy in the market at or before the day of delivery. And,, if the buyer also knew the facts, he could not maintain an action for the non-de- livery under the same contract. It would seem, from the case of Cud v. Rutter, 1 P. Will. 670; s. c. 5 Vin. Abridg. p. 638, pi. 21, that such stock contracts were not properly the subjects of an immediate sale, since no sale can be with- out a present thing, on which it can operate. But they might properly consti- tute the subject of a contract of sale, to operate and take effect in fiituro. See 2 Bl. Comm. 446. [' This is essential. Hardeman v. Ford, 12 Ga. 205 ; Billings v. Morrow, 7 Cal. 171 ; Pittsburgh Railroad v. Gazzam, 32 Penn. St. 340.] ' Frixione v. Tagliaferro, 10 E. F. Moore, P. C. 174. ' Post, § 446 ; Co. Litt. 207 ; Wolf v. Horncastle, 1 Bos. & Pull. 316 ; 284 AGENCY. [CH. IX. most useful and convenient rule was as fully recognized in the Roman law ; " Si quis ratum habuerit, quod gestum est, ob- stringitur mandati actione.^ Rati enim habitio mandate com- paratur." ^ And the same rule was applied (as Cujacius informs us) even to the case of an unauthorized person (negotwrum gestor), who interfered in the concerns of another party: "Rati- habito tamen facit, ut videatur negotium meum gestum, et erit mutua actio negotiorum gestornm. Yerum est, esse negotiorum gestorum actionem, si ratum habuero ; sed tentari potest, esse etiam mandati actionem. Nam ratihabitio duplicem vim habet, ut alienum negotium meum faciat, et habeat etiam vim mandati." ^ Pothier has commented on this doctrine in the following terms : " Et negotiorum gestorum actionibus locus est, quia sine man- date gestum est ; et mandati etiam agi potest propter ratihabi- tionem, quae aequipoUet mandate. Electio est utriusque actionis." * Pothier has added, " Quinetiam et ratihabitio mandato sequi- pollett." ^ The modern nations of continental Europe, following the civil law, have adopted the same enlarged policy.^ § 240. At the common law, however, there is a distinction be- tween the ratification of acts, which are void, and the ratification 1 Liverm. on Agency, ch. 2, § 4, pp. 44, 47 (ed. 1818) ; 3 Cliitty on Com. & • Manuf. 197, 198 ; Armstrong u. Gilchrist, 2 John. Cas. 424 ; 4 Coke, Ins. 317 ; Paley on Agency, by Lloyd, 324 ; Smith on Merc. Law, 47, 60 ; Odiorne v. Maxcy, 13 Mass. 178 ; Conn v. Penn, 1 Peters, Cir. 496 ; Pratt u. Putnam, 13 Mass. 361 ; Fisher v. Willard, 13 Mass. 379 ; Boynton v. Turner, 13 Mass. 391 ; Copeland v. Merchants' Insur. Co. 6 Pick. 198 ; Prince v. Clark, 1 B. & Cressw. 186; Horsley v. Bell, 1 Brown, Ch. 101, note; s. o. Ambler, 770; Den I). Wright, 1 Peters, Cir. 72 ; Breedlove u. Wamack, 14 Martin, 181 ; Buchanan v. Upshaw, 1 Howard, Sup. Ct. 66 ; s. c. 17 Peters, 70. [* A ratifi- cation can only be made when the principal at the time possesses the power to do the act ratified. McCracken v. San Francisco, 16 Cal. 691. j ' Dig. Lib. 50, tit. 17, 1. 60; 1 Liverm. on Agency, ch. 2, § 4, p. 44; Po- thier, Pand. Lib. 17, tit. 1, n. 19. ' Dig. Lib. 46, tit. 3, 1. 12, § 4. [* This rule is as applicable to the obliga- tions of the government as of individuals. Fremont «. United States, 2 Nott & Hunt, Ct. of Claims, 461.] ' Cujac. ad. L. 60, de Reg. Juris. (Lib. 60, tit. 17, 1. 60) Tome 8, col. 784 (Neap. ed. 1758). * Pothier, Pand. Lib. 17, tit. 1, n. 19, note (2) ; Pothier on Oblig. n. 75; 1 Liverm. on Agency, ch. 2, § 4, pp. 44, 45, 60-63, and note (ed. 1818). ' Pothier, Pand. Lib. 17, tit. 1, n. 19 ; Id. Lib. 14, tit. 3, n. 18. * Pothier on Oblig. n. 76. See the effect of a ratification of the acts of a sub-agent, post, § 389. §§ 239-242.] DEFENCES AGfAINST PRINCIPALS. 285 of acts, which are voidable. In the former case, the ratification is inoperative for any purpose whatsoever; in the latter, full validity is given to the acts.i The groundwork of this distinction seems to be, that a ratification of a void act only confirms it in its invalidity ; which is a subtlety in reasoning, more dependent upon artificial and technical rules, than expressive of the real intent of the parties.^ § 241. The principle is applied with far more justice and propriety to cases of contracts, and acts, which are illegal, or im- moral, or against public policy ; for, in such cases, the original contracts, or acts, being void, ought not to be allowed to acquire any validity from their being subsequently confirmed ; since the same noxious qualities adhere to the ratification, as existed in the original transaction ; and, therefore, the maxim may well be applied : " Quod ab initio non valet, tractu temporis non con- valescit." ^ § 242. But, whatever may be the force of this distinction in the former class of cases (that is to say, in cases not illegal, immoral, or against public policy), when understood in its true meaning, and with its true limitations, it is not applicable to cases of agency, where a party assumes to act, not for himself, l)ut for another, without any authority whatsoever, or by an ex- cess of the authority delegated to him.* In all such cases, if the principal subsequently ratifies the act, he is bound by it, whether it be for his detriment, or for his advantage ; and whether it be founded upon a tort, or upon a contract.^ And a ratification, ' Co. Liu. 295 b, 306 b ; and Ibid. Harg. and Butler's note (1) ; Gilb. on Tenures, 75 ; Dyer, 263, pi. 37 ; 1 Story on Equity Jurisp. § 307 ; Com. Dig. Confirmation, D. 1. ' Wilkinson v. Leland, 2 Peters, 661, 662. In deeds of confirmation, the distinction turns upon the legal effect of the words, " ratify, approve, and con- firm;" for if the words, "give and grant" be also in the deed, it will take effect, not as a confirmation, but as a grant. See Co. Litt. 295 b, 307 a. Lord Coke says, " A confirmation doth not strengthen a void estate ; for a confirma- tion may make a voidable or defeasible estate good ; but it cannot work upon an estate that is void in law." Co. Litt. 295 b ; Com. Dig. Confirmation, D. 1. ' 1 Story qn Equity Jurisp. § 307. * See Merrifield v. Parrilt, 11 Gush. 698. ' 7 H. 4, p. 35, 4 Inst. 317 ; Hagedom v. Oliverson, 2 M. & Selw. 485 ; Lucena v. Craufurd, 6 Bos. & Pull. 269 ; Routh v. Thompson, 13 East, 274 ; Paley on Agency, by Lloyd, 112-115, 171, 172, 324, and note ; Wilson v. Poulter, 2 Str. 859 ; Taylor v. Plumer, 3 M. & Selw. 662, 580 j 1 Liverm. on 286 AGENCY. [CH. IX. once deliberately made, with a full knowledge of all the material circumstances, cannot be recalled.^ Of course, this doctrine is to be understood with the qualification, that if the act of the agent be in the name of his principal, by an instrument [necessarily] '^ under seal, without authority, the ratification must be under seal also ; since (as we have seen) the principal is not bound by any act of his agent under seal, unless the authority of the principal has also been originally given to the agent under his seal.^ A ratification cannot, in this respect, stand iipon a higher ground, than an original authority.* [And, generally, if the adoption of any particular form or mode is necessary to confer the authority Agency, 44^52; Id. 391-396 (ed. 1818) ; Rogers v. Kneeland, 10 Wend. 218; Lench v. Lench, 10 Ves. 517 ; Kelly v. Munson, 7 Mass. 319. This point arose as long ago as in the Year Book, 7 Henry IV. p. 35. There a party justified, as bailiflf, taking a heribt, for services due to the lord ; and the issue was on the point, that he was not bailiff; and it was held, that if he took the heriot, claiming property therein for himself, the subsequent agreement of the lord would not amount to a ratification, making him bailiff at the time. But, if he took at the time, as bailiff of the lord, and not for himself, without command of the lord, yet the subsequent ratification made good his act, and made him bailiff at the time. The same point was held by Anderson, C. J., in God- bolt, 109, and was cited by Taddy, as counsel, and not denied in Hagedorn v. Oliverson, 2 M. & Selw. 487, 488. See also Moore v. Hush, Hob. 63; Post; § 246, note. ' Post, § 250 ; Breok v. Jones, 16 Texas, 461. ' Jf the act of the agent was unnecessarily under seal, it might be ratified by parol. 3 Ante, § 49 ; Wells v. Evans, 20 Wend. 251 ; Blood u. Goodrich, 12 Wend. 625 ; Hunter v. Parker, 7 Mees. & Wels. 322, 348 ; Story on Partn. §§ 117- 122 ; Contra, Cady v. Shepherd, 11 Pick. 400 ; Ante, § 49 ; Post, § 262 ; Skin- ner V. Dayton, 19 John. 513 ; Gram v. Seton, 1 Hall, 262 ; Story on Partn. §§ 121, 122. [ * In Grovr v. Hodges, 66 Penn. St. 504, it was held that where an agreement was signed and sealed by one party and by the other party by his agent and the agent had no sealed authority and the principal did not adopt the seal or ratify it by a sealed instrument, the deed was not the deed of the principal and none of its covenants his ; but the principal having accepted the grant, it bound him to the same extent as if he had personally signed and sealed the agreement, but the mode of enforcing the obligation was different.] " Ante, § 49 ; Blood v. Goodrich, 9 Wend. 68 ; s. c. 12 Wend. 626 ; Han- ford V. McNair, 9 Wend. 54 ; Wells v. Evans, 20 Wend. 251 ; Hunter «. Parker, 7 Mees. & Wels. 322, 343 ; Story on Partn. §§ 117-122 ; Hibblewhite V. McMorine, 6 Mees. & Wels. 200, 214, 215 ; Story on Partn. §§ 121, 122, note; McNaughton v. Partridge, 11 Ohio, 223. But see contra, Cady v. Shep- herd, 11 Pick. 400; Skinner v. Dayton, 19 John. 618; Gramc. Seton, 1 Hall, 262 ; Ante, § 49 ; Post, § 252. §§ 242-244.J DEFENCES AGAINST PRINCIPALS. 287 in the first instance, there can be no valid ratification except in the same manner.^] § 243. Hence it follows, that, if an agent has, by a deviation from his orders, or by any other misconduct, or omission of duty, become responsible to his. principal for damages, he will be dis- charged therefrom by the ratification of Ms acts, or omissions, by the principal, if made with a full knowledge of all the facts and circumstances.^ This latter is a most important qualification of the doctrine, and indispensable to its legal, as well as its equita- ble, operation.^ For, if the ratification by the principal be without such knowledge, it will not be obligatory upon him, whether his want of knowledge arise from the designed, or the undesigned, concealment or misrepresentation of the agent, or from his mere innocent inadvertence.* § 244. A ratification, also, when fairly made, will have the same effect as an original authority has, to bind the principal, not only in regard to the agent himself, but in regard to third persons.^ Therefore, a tortious act, done by an agent, which ' Despatch Line of Packets v. Bellamy Manuf. Co. 12 N. H. 232. ' 1 Liverm. on Agency, 44, 60, 328, 329, 391, 392, 394 (ed. 1818) ; Paley on Agency, by Lloyd, 31, 114, 171, 329 ; Smith v. Cologan, 2 T. R. 188, note ; Towle v. Jackson, 1 John. Cas. 110 ; Codwise v. Hacker, 1 Cain. 626 ; Cairnes v. Bleecker, 12 John. 300 ; Owings v. Hull, 9 Peters, 607 ; Thorndike ». Godfrey, 3 Greenl. 429. ' Nixon V. Palmer, 4 Seld. 401. [ * Farwell v. Meyer, 35 111. 41.] * See Copeland v. Merchants' Ins. Co. 6 Pick. 202, 204; Bell v. Cunning- ham, 3 Peters, 69, 81 ; Horsfall v. Fauntleroy, 10 B. & Cressw. 766 ; Owings V. Hull, 9 Peters, 607 ; Thorndike v. Godfrey, 3 Greenl. 429. Upon the same ground, in Horsfall v. Fauntleroy, 10 B. & Cressw. 766, Mr. Justice Parke held, that, where an agent has stated to his principal, and the latter has bond fide adopted, a contract, different from that under which the purchase was actually made, the seller cannot call upon the principal for payment ; because the seller sues on the contract, under which the goods were really sold ; and he is, therefore, bound to show, that the principal authorized, or ratified the contract, and not a different one, substituted by the agent. ' Smith on Merc. Law, 60 (2d ed.) ; Id. ch. 6, § 4, p. 108 (2d ed. 1843) ; Paley on Agency, by Lloyd, 171, 172, 211 ; Frothingham v. Haley, 3 Mass. 68, 70 ; Lent v. Padelford, 10 Mass. 230 ; McClean v. Dunn, 4 Bing. 722 ; Soames v. Spencer, 1 Dowl. & Ry. 32 ; Spittle v. Lavender, 2 Brod. and Bing. 462; Rogers v. Kneeland, 10 Wend. 218. How far, and when, a ratification by the principal of the unauthorized acts of his agent will operate to give him rights against third persons, we shall hereafter have occasion to consider. See, on the point, Paley on Agency, by Lloyd, 343-347 ; Id. 191, note (c) ; Post, 288 AGENCY. [CH. IX. would, if authorized, give an action for damages to a third per- son against tire principal, will, if subsequently ratified by the principal, give the same right to damages against him ; as much so, as if the action were founded on a ratified contract of the agent.^ In short, the act is treated throughout, as if it were originally authorized by the principal ; for the ratification relates back to the time of the . inception of the transaction, and has a complete retroactive efficacy ; or, as the maxim above cited ex- presses it, " Omnis ratihabitio retrotra,hitur." Hence it is, that, if the agent has made a contract without authority from his prin- cipal, or beyond his authority, and it is afterwards ratified, the principal may generally sue, and be sued thereon, in the same manner, and with the same effect, as if he had originally given the authority. Therefore, if a person, without authority, has made a purchase of goods for his principal, and has signed a bought note therefor, if the principal, after full knowledge of the transaction, ratifies it, that will make the signing a good signing within the statute of frauds, so as to bind both the' parties to the contract.^ In like manner, the agent will be entitled to the same § 245 ; Stainer v. Tysen, 3 Hill, 279 ; Maix v. Plumer, 3 Greenl. 73 j Bu- chanan V. Upshaw, 1 Howard, Sup. Ct. 56 ; s. o. 17 Peters, 70. ' Rogers v. Kneeland, 10 Wend. 218. ' Maclean v. Dunn, 4 Bing. 722 ; Kinnitz v. Surry, cited Paley on Agency, by Lloyd, 171, note ; Soames v. Spencer, 1 Dowl. & Ry. 82. Lord Chief Justice Best, in delivering the opinion of the court, in Maclean ». Dunn, 4 Bing. 722, said, " It has been argued, that the subsequent adoption of the con- tract by Dunn will not take this case out of the operation of the statute of frauds ; and it has been insisted, that the agent should have his authority at the time the contract is entered into. If such had been the intention of the legis- lature, it would have been expressed more clearly. But the statute only re- quires some note or memorandum in writing, to be signed by the party to be charged, or his agent, thereunto lawfully authorized ; leaving us to the rules of common law, as to the mode in which the agent is to receive his authority. Now, in all other cases, a subsequent sanction is considered the same thing in effect as assent at the time. Omnis ratihabitio retrotrahitur, et mandate aequiparatur. And, in my opinion, the subsequent sanction, of a contract, signed by an agent, takes it out of the operation of the statute more satisfac- torily than an authority given beforehand. Where the authority is given be- forehand, the party must trust to his agent ; if it be given subsequently to the contract, the party knows that all has been done according to his wishes. But in Kinnitz v. Surry, where the broker, who signed the broker's note upon a sale of corn, was the seller's agent. Lord EUenborough held, that, if the buyer acted upon the note, that was such an adoption of his agency as made his note §§ 244-246.] DEFENCES AGAINST PRINCIPALS. 289 rights and remedies, and to the same compensations, and will be subject to the same duties and responsibilities, as if he had been acting within the scope of an acknowledged original authority.^ § 245. But, although the ratification of an unauthorized act of an agent, acting without any authority, or beyond his authority, will thus, in general, bind the principal, not only as to his agent, but as to third persons, and give the ordinary rights and reme- dies, both for and against him ; yet this doctrine is to be received with some qualifications, or, rather, it is not universally applica- ble.^ Where an act is beneficial to the principal, and does not create an immediate right to have some other act or duty per- formed by a third person, but amounts simply to the assertion of a right on the part of the principal, there the rule seems generally applicable. Thus, for example, if a continual claim, or an entry to avoid a fine, or an entry for condition broken, is made by a person having no present authority, the principal may bring an action upon any of these acts, and his ratification or adoption of them will supply the want of an original authority.^ § 246. On the other hand, if the act done by such person would, if authorized, create a right to have some act or duty performed by a third person, so as to subject him to damages or losses, for the non-performance of that act or duty, or would defeat a right or an estate already vested in the latter, there the subsequent ratification or adoption of the unauthorized act by the sufficient within the statute of frauds. And in Soames v. Spencer, where A. and B., being jointly interested in a quantity of oil, A. entered into a contract for the sale of it, without the authority or knowledge of B., who, upon receiv- ing information of the circumstance, refused to be bound, but afterwards assented by parol, and samples were delivered to the vendees ; it was held, in an action against the vendees, that B.'s subsequent ratification of the contract rendered it binding ; and that it was to be considered as a contract in writing within the statute of frauds. That is an express decision on the point, that under the statute of frauds the ratification of the principal relates back to the time when the agent made the contract.'' ' See Paley on Agency, by Lloyd, 31 ; Cornwall v. Wilson, 1 Ves. 509 ; Hop- kins V. MoUineaux, 4 Wend. 465. [ * A person may ratify an action brought in his name, but without his knowledge or authority, by another professing to act as his agent and on his behalf. Ancona v. Marks, 7 H. & N. 686.] ' Post, § 246. ' Paley on Agency, by Lloyd, 346; Co. Litt. 268 a; Fitchett v. Adams, 2 Strange, 1128 ; Goodtitle v. Woodward, 3 B. & Aid. 689. See note to §246. AGBNCT. 19 290 AGENCY. [CH. IX, principal will not give validity to it, so as to bind such third per- son to the consequences. Thus, if a lease contains a condition that it may be determined by either party upon six montlis' notice; such notice, given by an unauthorized person for the land- lord, although subsequently ratified and adopted by the latter, will not be a valid notice to determine the lease.^ The ground of this decision is, that it is a notice to defeat an estate, and tlie tenant is entitled to such notice as lie can act upon with certainty at the time when he receives it, so that he may deliver up the possession at the end of the six months, without being liable to further claims in respect to the remainder of the term.^ The case is distinguishable from that of an entry without authority, for a condition broken ; because, in the latter case, the third person's act is not to depend upon the validity of the entry at the time when it is made. The rule, " omnis ratihabitio retrotrahitur, et mandate priori sequiparatur," seems applicable only to cases, where the conduct of the parties, on whom it is to operate, not being referable to any agreement, cannot, in the mean time, de- pend on the fact, whether there be a ratification or not.^ ' Buron v. Denman, 2 Exch. 167. 2 Right d. Pisher v. Cuthell, 6 East, 491 ; Doe d. Mann v. Walters, 10 B, • & Cressw. 626 ; Paley on Agency, by Lloyd, 190, note (c) ; Id. 343-347. The same point was expressly held in Doe d. Lyster v. Goldwin, 2 Adolph. & Ellis, New R. 143. 3 Right d. Fisher v. Cuthell, 6 East, 498-500 ; Doe d. Mann v. Walters, 10 B. & Cressw. 626. S. P. Doe d. Lyster v. Goldwin, 2 Adolph. & Ellis, NewK. 143. The cases on this subject are not entirely in harmony with each other. Thus, in Roe v. Pierce, 2 Campb. 96, a verbal notice to quit, by a steward of a corporation, was held ratified and binding by the corporations bringing a suit, founded upon that notice. And in Goodtitle v. Woodward, 3 B. &. Aid. 689, a notice to quit, given by an agent for several trustees jointly interested, but acting by a written authority, signed by some only of the trustees, was held good, by the adoption of aU the trustees, by bringing a suit thereon. And the court held, that the maxim, Omnis ratihabitio retrotrahitur, applied to the case. This last case may, however, be now supported on another distinct ground, that the notice by some of the trustees was good originally for all. Doe V. Summersett, 1 B. & Adolph. 135. But the ground of the decision, as stated in 3 B. & Aid. 689, is certainly inconsistent with the cases of Right v. Cuthell, 6 East, 491, and Doe v. Walters, 10 B. & Cressw. 626, and Doe d. Lyster v. Goldwin, 2 Adolph. & Ellis, New R. 143. See Mr. Lloyd's note to Paley on Agency, by Lloyd, 190, note (c) . It must be admitted, that the dis- tinction between the effect of a ratification enforcing the right of the principal, as, for example, an entry to avoid a fine, or for condition broken, and the §§ 246-248.] DEFENCES AGAINST PRINCIPALS. 291 § 247. Upon similar grounds, a demand upon a debtor, and refusal by him to pay a debt made by an authorized agent, will not take away the right of tl^e debtor to plead a prior tender of the debt to the principal ; for, as the agent had no authority to make the demand, payment to him would not have discharged the debtor from the debt. The subsequent adoption of the act by the principal would not vary the right of the debtor in such a case, since he could not safely pay to one who was without au- thority at the time to receive the money and to give a discharge. ^ So, a demand of goods, made by an unauthorized person, will not, although subsequently adopted by the principal, be evidence to support an action of trover for a conversion against . the party in whose possession the goods were, and of whom they were demanded.^ So, a demand made by a person not authorized, of payment of a promissory note or of a bill of exchange, will not, even though afterwards ratified by the holder, constitute a good demand upon the party, so as to make him liable for damages for his default in payment.^ So, notice of the dishonor of a promissory note, or of a bill of exchange, by a mere stranger, not a party to the same bill, or authorized thereto, will not be a good notice to bind an indorser or drawer.* So, also, where A. does an act as agent for B., without any communication with C, C. cannot, by afterwards adopting that act, make A. his agent, and thereby incur any liability, or take any benefit under the act of A.^ Let us how return tO the effect of a ratification by the principal in ordinary cases. § 248. As, from what has been already said, the principal thus acquires a right to elect whether he will adopt the unauthorized effect of a ratification in a case where the other party is to do some act, or to suffer some loss thereby, is one of considerable nicety, and stands upon reason- ing not very satisfactory or very clear. See ante, § 242, note. ' Coore V. Callaway, 1 Esp. 116; Coles v. Bell, 1 Campb. 478, note; Paley on Agency, by Lloyd, 846, 346. ' Solomons v. Dawes, 1 Esp. 83 ; Paley on Agency, by Lloyd, 343, 345, 346. ' Freeman v. Boynton, 7 Mass. 483 ; Bank of Utica v. Smith, 18 John. 230 ; Chitty on Bills, oh. 9, p. 398 (8th ed. 1833). ' Tindal v. Brown, 1 T. R. 167 ; Stanton v. Blossom, 14 Mass. 116 ; Stew- art V. Kennet, 2 Campb. 177 ; JEJx parte Barclay, 7 Ves. 697 ; Chitty on Bills, ch 8, p. 368 (8th ed. 1833) ; Story on Bills of Exchange, §§ 303, 304. ' Wilson V. Tumman, 6 Mann. & Gr. 236. 292 AGENCY. [CH. IX. act or not, it must be admitted, that the parties do not generally stand upon equal terms ; since the principal may always elect to ratify the act, if it is for his benefit, and to disavow it, if it is to his injury. But this consequence has never been allowed to overcome the force of the general doctrine. Thus, for example, where an unauthorized agent procured an insurance to be made upon a certain ship for the benefit of the owner thereof; and the ship was lost during the voyage ; and long after the loss the owner ratified the insurance, and a suit was brought against the underwriters ; it was held to be no objection to the recovery, that the ratification was not until long after the loss, and that the owner would not have been bound to pay the premium, if the ship had safely arrived. For the agent had still a right to effect the insurance, and to take the chance of its being adopted ; and he could not have recovered back the premium paid by him to the underwriters, upon the ground that he had no authority, and that, therefore, there was no interest insured ; because the under- writers would have borne the risk, until there had been a dis- avowal by the principal.^ § 249. And not only will the principal be bound by a ratificar cation of the unauthorized act of his agent, but, if the latter has improperly substituted another agent under him, the ratification by the principal of the acts of the sub-agent will, to all intents and purposes, bind him, in the same manner, as if he had origi- nally given to the agent a power of substitution.^ The Eoman law recognized the same doctrine. " Sed et in ipsum pro- curatorem, si omnium rerum procurator est, dari debebit insti- toria. Sed et si quis, meam rem gerens, prseposuerit, et ratum habuero, idem, erit dicendum.^ (Id est, dari debebit institoria actio.) " ' Hagedorn v. Oliverson, 2 M. & Selw. 485 ; Routh v. Thompson, IS East, 279; 1 Liverm. on Agency, 49, 396, 396 (ed. 1818). See also Emerigon, Tome 1, ch. 5, § 6, pp. 142-146 ; 3 Kent, Comm. Lect. 48 pp. 260, 261 (4th ed.) ; 1 Phillips on Ins. ch. 22, p. 519 ; 2 Phillips on Ins. ch. 22, pp. 367- 359, Barlow v. Leckie, 4 J. B. Moore, 8. ' Paley on Agency, by Lloyd, 171, and note ; Id. 176, 176 ; Blore v. Sut- ton, 3 Meriv. 246 ; Soames v. Spencer, 1 Dowl. & Ry. 32 ; Henderson v. Barn- wall, 1 Y. & Jerv. 387 ; Kinnitz v. Surrey, cited Paley on Agency, by Lloyd, 171, note; Smith u. Cologan, 2 T. R. 188, n; 3 Chitty on Com. & Manuf. 206 ; Coles v. Trecothick, 9 Ves. 236, 261, 252. ' Dig. Lib. 14, tit. 3, 1. 6, 7 ; Pothier Pand. Lib. 14, tit. 3, n. 18. §§ 248-251.] DEFENCES AGAINST PRINCIPALS. 293 § 250. Another consideration, very important in cases of this sort, is, that the principal cannot, of his own mere authority, ratify a transaction in part, and repudiate it as to the rest. He must eitlier adopt the whole or none.^ And hence the general rule is deduced, that, where a ratification is established as to a part, it operates as a confirmation of the whole of that particular transaction of the agent.^ It may be added, that a ratification, once deliberately made, upon full knowledge of all the material circumstances, becomes, eo instanti, obligatory, and cannot after- wards be revoked or recalled.^ § 251. Where a contract, which has been originally made by an agent without authority, is afterwards ratified by the princi- pal, that ratification will, in general, relieve the agent from all responsibility on the contract, if it purports to be executed by him merely as an agent, although without such ratification he would be liable to the other contracting party for his misrepre- sentation or mistake of authority. Thus, if a person should in his own name, but in the character of agent of the owner, sign a written agreement for tlie sale of an estate, without any authority from the owner, and the latter should afterwards sign the same agreement, and declare thereon, that he sanctioned and approved of the agent's having signed it in his behalf, the agent will no longer be personally liable on the contract ; but his principal only will be liable, even although the agent, without such ratification, might have been liable thereon.* ' Smiti on Merc. Law, 60(3d ed.) ; Id. ch. 5, § 4, p. 108 (Sd ed. 1843) ; Wilson V. Pulter, 2 Str. 859 ; Billon ». Hyde, 1 Atk. 128 ; Smith v. Hodson, 4 T. R. 211 ; Hovil v. Pack, 7 East, 164 ; Paley on Agency, by Lloyd, 31 ; Id. 113, 114, 171, 172, 325 ; Findley v. Breedlove, 16 Martin, 105 ; 3 Chitty on Com. & Manuf. 197, 198 ; Cornwall v. Wilson, 1 Ves. 509 ; Newall v. Hurl- bert, 2 Vt. 351 ; Benedict v. Smith, 10 Paige, 126 ; Farmer's Loan & Trust Co. V. Walworth, 1 Com. 434; Menkens ». Watson, 27 Mo. 163. " Ibid. ; Ferguson v. Carrington, 9 B. & Cressw. 59 ; Corning «. Southland, 3 Hill, 552; Menkens v. Watson, 27 Mo. 163. [* So a debtor cannot have the benefit of a compromise and release effected by his agent, with his credit- ors, without adopting all the representations made by the agent to the creditors in negotiating the same. Crans v. Hunter, 28 N. Y. 389.] ' 3 Chitty on Com. & Manuf. 197, 198 ; Smith v. Cologan, 2 T. K. 188, note; Paley on Agency, by Lloyd, 171, 172; Clarke's Executors v. Van Reimsdyk, 9 Cranch, 153 ; Ante, § 242. • Spittle V. Lavender, 2 Brod. & Bing. 452 ; Post, § 278, note. See Collins V. Butts, 10 Wend. 399 ; Lucas v. Barrett, 1 Greene (Iowa), 511. Whether a 294 AGENCY. [CH. IX. § 251 a. One other consideration is important to be borne in mind. It is, that a ratification can only be effectual between the parties, when the act is done by the agent avowedly for, or on account of the principal, and not when it is done for, or on ac- count of the agent himself, or of some third person. This would seem to be an obvious deduction from the very nature of a ratifi- cation, which presupposes the act to be done for another, but without competent authority from him ; and therefore gives the same effect to the act as if it had been done by the authority of the party for whom it purported to have been done and as his own act. Hence it has been laid down as a maxim of the canon law, " Ratum quis habere non potest, quod ipsius nomine non est gestum." ^ The same rule was early recognized in the common law, and has been recently explained in a most satisfactory manner.^ person who has signed an instrument, as agent, but without authority, will be responsible, either on the instrument itself, or by a special action on the case, to the other party, if his principal afterwards ratifies his act, has been a matter of some diversity of judicial opinion. In Ballou ». Talbot, 16 Mass. 461, the supreme court of Massachusetts held incidentally, that he will not be liable after siich a ratification. In Rossiter v. Rossiter, 8 Wend. 494, the supreme court of New York intimated a different opinion. See also Palmer v. Stephens, 1 Denio, 472. Upon principle, it would seem, that the ratification will make the instrument binding on the principal, in the same manner and to the same extent, as if he had originally authorized it; and, of course, the agent will not, under such circumstances, render himself personally liable, unless by the form of the instrument, he has included a personal liability. Post, § 264, note. ' See the learned note of the Reporter to the case of Wilson v. Tumman, 6 Mann. & Gr. 239, note (a). ° Wilson V. Tumman, 6 Mann. & Gr. 286. On this occasion Lord Chief Jus- tice Tindal said, "That an act done, for another, by a person, not assuming to act for himself, but for such other person, though without any, precedent authority whatever, becomes the act of the principal, if subsequently ratified by him, is the known and well-established rule of law. In that case the prin- cipal is bound by the act, whether it be for his detriment or his advantage, and whether it be founded on a tort or a contract, to the same extent as by, and with all the consequences which follow from, the same act done by his previous au- thority. Such was the precise distinction taken in the Year-Book, 7 Hen. TV., fo. 35, — that if the bailifif took the heriot, claiming property in it himself, the subsequent agreement of the lord would not amount to a ratification of his authority, as bailiff at the time ; but if he took it, at the time, as bailiff of the lord, the subsequent ratification by the lord made him bailiff at the time. The same distinction is also laid down by Anderson, C. J., in Godbolt's Reports, §§ 251 a-253.] defences against principals. 295 § 252. Having stated the general nature and effect of a ratifi- cation, it remains to consider what acts of the principal will amount to a ratification. Whenever there is an express assent to, or an express confirmation of, the transaction, there can be but little difficulty in applying the doctrine. If the act of the agent purports to be under seal, and in the name of the principal, so as to be his deed, the ratification also must, as wo have seen, be by an instrument under seal.^ But, in other cases, however informal the instrument may be in its structure and language, if it can be gathered from the contents that an express ratification is intended, that will suffice. § 253. But by far the largest class of cases of ratifications of unsealed contracts arises by implication from the acts and pro- ceedings of the principal in pais ; for it is by no means necessary, that there should be any positive or direct confirmation.^ And, for this purpose, the acts and conduct of the principal are con- strued liberally in favor of the agent.^ Where the evidence is doubtful, and may admit of different interpretations, there it seems proper to submit the question for the decision of the jury. But, where they can justly lead to no safe or satisfactory con- clusion, a ratification ought not to be presumed.* Slight circum- stances and small matters will sometimes suffice to raise the presumption of a ratification.^ [Thus, where a principal, on 109. ' If one have cause to distrain my goods, and a stranger, of his own wrong, without any warrant or authority given him by the other, takes my goods, not as bailifif or servant to the other, and I bring an action of trespass against him, can he excuse himself by saying that he did it as his bailiff or servant ? can he also father his misdemeanor upon another ? He cannot ; for once he was a trespasser, and his intent was manifest.'" ' Ante, §§ 49, 242 ; Blood «. Goodrich, 9 Wend. 68 ; s. c. 12 Wend. 565 ; Hanford v. M'Nair, 9 Wend. 57. But see contra, McNaughtcu ». Partridge, 11 Ohio, 223; Cady o. Shepherd, 11 Pick. 400; Ante, §§ 49, 51, 125, 242; Story on Partn. § 122, note. • ^ 3 Chitty on Com. & Manuf. 197, 198 ; 1 Liverm. on Agency, 46 (ed. 1818) . ^ Terril u. Flower, 6 TMartin, 684 ; 1 Liverm. on Agency, 894 (ed. 1818) ; Codwise u. Hacker, 1 Caines, 526 ; Loraine v. Cartwright, 8 Wash. Cir. 151 ; Bryne «. Doughty, 13 Ga. 46. ^ See Penn. &c. Steam Navigation Co. is. Dandridge, 8 Gill & John. 248 ; Horton v. Townes, 6 Leigh (Va.), 47 ; Crocker v. Appleton, 26 Maine, 131 ; Barnard «. Wheeler, 24 Maine, 412 ; Bryant u. Moore, 26 Maine, 84. " 8 Chitty on Com. & Manuf. 197, 198 ; Paley on Agency, by Lloyd, 171, 172 ; Ward v. Evans, Salk. 442 ; s. c. 2 Ld. Raym. 928 ; Thorold v. Smith, 11 Mod. 87 ; Conn v. Penn, 1 Pet. Cir. 496 ; Loraine v. Cartwright, 3 Wash. 296 AGENCY. [CH. IX. being informed of a purchase by his agent, in the name of the principal, did not deny the agent's authority to make the pur- chase, but merely complained of the manner in which it had been exercised, he was held to have admitted the right of the agent to bind him.i] But whenever the acts and conduct of the principal are inconsistent with any other supposition, the presumption of a ratification becomes, of course, far more violent and conclusive. Thus, for example, if an agent who is employed to purchase goods at a limited price should exceed that limit, and the prin- cipal, after full knowledge of the facts, should receive them on his own account, without objection, it would be presumed that he intended to ratify the transaction.^ And, a fortiori, if the prin- cipal should not only receive, but should sell, them on his own account.^ The same conclusion would arise, under similar cir- cumstances, if the agent had no authority whatsoever to make any purchase. So, if an agent should sell goods contrary to his instructions, and the principal should afterwards receive the pro- ceeds without objection, it would amount to a ratification of the sale.* So, if a person should sign or indorse a note, as agent for another, without authority, and the principal should after- wards, upon a full knowledge, promise to pay it accordingly, that would amount to a ratification of the act^ [without any new consideration ^] . Cir. 151; Richmond Manufacturing Co. v. Starks, 4 Mason, 296; Bank of Columbia u. Paterson's Adm'rs, 7 Cranch, 299 ; Terril u. Flower, 6 Martin, 584' ; Rogers a. Kneeland, 13 Wend. 114 ; Codwise «. Hacker, 1 Caines, 526, ' Johnson v. Jones, 4 Barbour, Sup. Ct. (N. Y.) 369. ^ Paley on Agency, by Lloyd, 118-115 ; Odiorne v. Maxcy, 13 Mass. 178 ; Clark's Ex'rs «. Van Reirasdyk, 9 Cranch, 153. = See Willinks «. Hollingsworth, 6 Wheat. 241, 259. ^ Forrester v. Boardman, 1 Story, 43 ; Palmerton v. Huxford, 4 Denio, 166. . ° Fenn v. Harrison, 4 T. R. 177 ; Fitzpatrick ». School Commissioners, 7 Humph. 224 ; Long a. Coburn, 11 Mass. m ; Dow ». Spenny, 29 Mo. 387. [ * But there must have been full knowledge of all material facts ; and ignorance of such facts, whether it arises from want of inquiry by the principal, and neglect to ascertain the facts, or from other causes, will render an alleged ratifi- cation ineffectual and invalid. Combs v. Scott, 12 Allen, 493; Commercial Bank w. Jones, 18 Texas, 811.] ' Commercial Bank ». Warren, 15 N. Y. (1 Smith) 677. [*So wliere money had been borrowed upon a note executed for a bank by its cashier, and its board of directors received and appropriated the proceeds of the note to the use of the bank, or acquiesced in such appropriation, and suffered the note to be several times renewed by notes executed in a similar manner, and made §§ 253-255.] DEFENCES AGAINST PRINCIPALS. 297 § 254. So, if a party should receive a note for collection, and should improperly convert it to his own use, and afterwards the principal, upon notice of all the facts, should take the agent's own note for the amount, he would be bound thereby ; and he could not afterwards recover the money from a third person, to whom the converted note had been paid.^ So, if a person should, without authority, make a contract to borrow money for a cor- poration, and the money should be applied to the benefit of the corporation, which should afterwards recognize it as a debt, by paying interest thereon, and passing accounts relative thereto, it would amount to a ratification of the borrowing of the money on the part of the corporation.^ § 255. Long acquiescence, also, without objection, and even the silence of the principal, will, in many cases, amount to a conclusive presumption of the ratification of an unauthorized act ; especially where such acquiescence is otherwise not to be ac- counted for, or such silence is either contrary to the duty of the principal, or it has a tendency to mislead the agent.^ Thus, for example, if an agent, without authority, should compromise a debt of his principal, who, after knowledge of the fact, should make no objection, but acquiesce for a length of time in the act, he would be held bound by it.* [But it has been said that if an several payments of interest ttereon, it was held that the bank had ratified the act of its cashier in giving the note, and such ratification was equivalent to a previous express authority. Ballston Spa Bank v. Marine Bank, 16 Wis. 120. And where a sale of property belonging to a railroad company was made' by its president in part payment of a debt due from the company, and which sale was in fact unauthorized ; yet if the fact of sale had been communicated to its hoard of directors, who had authority to manage its affairs, and was openly talked of at one of their meetings, and they did nothing to disafiirm it, this would be deemed a ratification of the sale. Walworth, &c. Bank v. Farmers' &c. Co. 16 Wis. 629.] ' 1 Liverm. on Agency, 47, 48 (ed. 1818) ; Cushman v. Loker, 2 Mass. 106. ' Episcopal Charity Society v. Episcopal Church in Dedham, 1 Pick. 372. ' Courcier v. Bitter, 4 Wash. Cir. 649 ; Erick v. Johnson, 6 Mass. 193 ; Amory v. Hamilton, 17 Mass. 103 ; Towle v. Stevenson, 1 John. Cas. 110 ; Armstrong v. Gilchoist, 2 John. Cas. 424 ; Pitts v. Shubert, 11 La. 288 ; Kings- ton V. Kincaid, 1 Wash. Cir. 453 ; Forrestier v. Boardman, 1 Story, 43 ; Ante, § 90; Norris v. Cook, 1 Curtis, 464; Owsley v. Woolhopter, 14 Ga. 124; Wright V. Boynton, 37 N. H. 9. * 1 Liverm. on Agency, 45-47 (ed. 1818) ; Armstrong v. Gilchrist, 2 John. Cas. 424; Crane v. Bedwell, 25 Miss. 507; Abbe v. Rood, 6 McLean, 109. 298 AGENCY. [CH. K. agent has a special and limited authority to sell his principal's property, and sells it in violation of that authority, it is not the duty of the principal to seek the purchaser and notify him of his claim ; and his mere omission to do so will not ordinarily be a ratification of the sale.^] [§ 255 a. So, where an agent took a demand for collection, and received in payment bills of a bank, the solvency of which he did not know, and took the guaranty of the debtor, with surety, that the bills were good, and, upon making his conduct known to his principal, the latter received the money and guar- anty, saying he would see what could be done with the money, and he kept it two or three months before he ascertained its value, when the bills proved to have been worth but twenty cents on the dollar at the time they were received by the agent ; it was held, in an action of account for the deficiency, that the principal had acquiesced, by his conduct, in the doings of the agent.^] § 256. Where an agency actually exists, the mere aquiescence of the principal may well give rise to the presumption of an inten- tional ratification of the act.^ The presumption is far less strong, and the mere fact of acquiescence may be deemed far less cogent, where no such relation of agency exists at the time between the parties. However, if there are peculiar relations of a difierent sort between the parties, such as that of father and son, the pre- sumption of a ratification will become more vehement, and the duty of disavowal on the part of the principal more urgent, when the facts are brought to his knowledge.* § 257. The Roman law, which upon this subject seems to have proceeded upon the same principles as our law, puts the case of a ' White V. Langdon, 80 Vt. 699. " Pickett V. Pierson, 17 Vt. 470. ' Courcier v. Ritter, 4 Wash. Cir. 549 ; Amory v. Hamilton, 17 Mass. 103; Eriok v. Johnson, 6 Mass. 198 ; Fitzsimmons u. Joslin, 21 Vt. 129 ; Johnson V. Jones, 4 Barbour, Sup. Ct. (N. Y.) 369. '[*The principal must repudiate the act if at all within a reasonable time. Law v. Cross, 1 Black (U. S.), 533. In Harris v. Miner, 28 111. 135, it is held that the mere receipt of a portion of money realized from property improperly sold by the sheriff, will not be con- strued as a ratification of the sale. Acts of ratification, to be sufficient, must be something, by which the party, by relying on them, has been prejudiced. Doughady v. Crowell, 3 Stoct. (N. J.) 201.] [** In Ward v. Williams, 26 111. 447, it is held that the unauthorized act of a stranger will not be bindin'g unless expressly ratified.] §§ 255-258.] DEFENCES AGAINST PRINCIPALS. 299 son, who should borrow money in the absence of his father, as if by the authority of the father, and should write to him to pay the money to the lender ; and it declares, that, if the father does not approve of the loan, he ought immediately to make known his dissent to the lender, otherwise he will be deemed tacitly to have ratified it.^ A fortiori, the father will be deemed to have ratified the act of borrowing, if he has commenced paying the debt. " Hoc amplius cessabit Senatus-consultum, si pater solvere csepit, quod filiusfamilias mutuum sumpserit, quasi ratum habuerit." ^ § 258. In respect to silence, whether it operates as a presump- tive proof of ratification, may essentially depend upon the par- ticular relations between the parties, and the habits of business, and the usages of trade. In the ordinary course of business between merchants and their correspondents, it is understood to be the duty of the one party, receiving a letter from the other, to answer the same within a reasonable time ; and if he does not, it is presumed that he admits the propriety of the acts of his correspondent, and confirms and adopts them. This presumption ' Dig. Lib. 14, tit. 6, 1. 16 ; Pothier, Pand. Lib. 14, tit. 6, n. 6 ; 1 Liverm. on Agency, 48, 49 (ed. 1818) . The passsage is from Paulus, and is as follows : Si Filiusfamilias, absente patre, quasi ex mandate ejus peouniam aoceperit, cavisset, et ad Patrem literas emisit, ut earn pecuniam in provincia solveret ; debet Pater, si actum filii sui improbat, continue testationem interponere con- trarisE voluntatis. Dig. Lib. 14, tit. 6, 1. 16. Pothier adds : Alioquin videtur tacite ratum habere. Pothier, Pand. Lib. 14, tit. 6, n. 6, n. The cases cited . in the text, as put in the Roman law, arose undel- the Macedonian Decree (so called), made to prevent young heirs from running into extravagance, by secretly borrowing money during the lives of their fathers ; upon a similar policy to that which governs in our law in relation to post-obit bonds. But still they illustrate the general principle. The near relationship between the parties in such cases furnishes a presumption of approbation unless there is a dissent. Emerig. sur Assur. Tom. 2, ch. 5, § 6, n. 2, pp. 144, 145. Gothodfredus, in his commentary on the text of the Digest, says, Literas qui recipit oonjunctionis favore, presumitur probare ea omnia, quae in Uteris comprehensa sunt, nisi continue, seu illico, contradieat. Gothodfred. ad Senatus Consul. Maeed. Dig. Lib. 14, tit. 6, 1. 16. Cujacius puts the case expressly upon the ground of an implied ratification, from the silence of the father. Verum, non tam epistola ipsa habetur pro ratihabitione, quam tacitus consensus patris accipientis episto- 1am missam a filio, qui certe pro ratihabitione est. Cujac. ad L. 69, penult. £F. mandati (Dig. Lib. 17, tit. 1, 1. 59, § 5), Cujacii Opera, Tom. 6, col. 630, E; Cujac. ad L. 6 ff. ad Sen. Consult. Maced. (Dig. Lib. 14, tit. 6, 1. 16), Cujac. Opera, Tom. 6, col. 626, E; 1 Emerig. Assur. ch. 6, § 6, p. 145; 1 Liverm. on Agency, p. 48, and notes (ed. 1818) . = Pothier, Pand. Lib. 14, tit. 6, n. 6 ; Dig. Lib. 14, tit. 6, 1. 7, § 15. 300 AGENCY. [CH. IX. seems now, in favor of commerce, to be universally acted upon. And, therefore, if the principal having received information, by a letter from his agent, of his acts, touching the business of his principal, does not, within a reasonable time, express his dissent to the agent, he is deemed to approve his acts, and his silence amounts to a ratification of them.^ Nor is this a principle pecu- liar to our jurisprudence. It has received the sanction of the Roman law ; ^ and has also been fully recognized by modern com- mercial jurists on the continent of Europe.^ Even if no such prior relation of principal and agent has existed between the parties, yet, if a party, who has acted for another, gives notice thereof to the principal, and the latter makes no reply, or no objection, it will, in many cases, afford a presumption, that he ratifies the act.* ' 1 Liverm. on Agency, pp. 49, 60, 896 (ed. 1818) ; Paley on Agency, by Lloyd, 31 ; Prince v. Clarke, 1 B. & Cressw. 186 ; Bell v. Cunningham, 3 Pet. 69, 81 ; Cairnes v. Bleecker, 12 John. 300; Courcier v. Ritter, 4 Wash. Cir. 549 ; Vianna v. Barclay, 3 Cowen, 281 ; Norris v. Cook, 1 Curtis, Ct. 464; Bredin, v. Dubarry, 14 Serg. & R. 30; Richmond Manuf. Co. u. Starks, 4 Mason, 296. [ * Silence cannot amount to a ratification, where the party did not know of the unauthorized use of his name on a note until after the note became due. Walters v. Munroe, 17 Md. 150.] ' Ante, § 257, and note. ' 1 Emerig. Assur. eh. 6, § 6, p. 145 ; Stracoha, De Assecur. gil. 11, n. 47; Casaregis, Disc. 80, n. 63 ; Disc. 102, n. 54 ; Disc. 131, n. 7 ; Disc. 225, n. 64; 1 Liverm. on Agency, 49, aud'note (ed. 1818) ; Id. 396, and note. * Mr. Livermore seems to doubt this. His language is (1 Liverm. on Agency, p. 50, ed. 1818) : " When the relation of principal and agent does in fact exist, although in the particular transaction the agent has exceeded his authority, an intention to ratify will always be presumed from the silence of the principal, who has received a letter, informing him what has been done on his account. But, where the person doing the business, is a mere volunteer, who has offi- ciously interfered in the affairs of another person, and has eifected an insurance, or made a purchase for him, without any color of authority, I do not conceive that the other person is bound to answer a letter from the intermeddler, in- forming him of the contracts so made in his name, nor that his silence can be construed into a ratification. Certainly no case has gone this length, and the opinion of the great Cujas is, that this is no ratification." The citation from Cujas, above referred to in § 257, note, is probably that on which the learned author relied ; and if it is, it does not fully support his own position. Perhaps, in the cases of the intermeddling of mere strangers, it would be difficult to find any complete authority for so broad a position, as that the principal would, in all cases, be bound to answer the person, who assumed to be his agent, and, if he did not, his silence should be construed into a ratification, and the doctrine §§ 258, 259.] DEFENCES AGAINST PEINCIPALS. 301 § 259. In many cases, also, a ratification will be inferred from other collateral circumstances. Thus, if the principal, whose goods have been sold without his authority, should sue the pur- chaser for the debt due therefor, that would amount to a ratifica- tion of the sale ; for the suit would not, upon any other ground, be maintainable in that form.^ So, if a factor should sell goods for a price below his limits, and should send an account of sales to his principal, who should make no objection," but should draw for the balance admitted to be due on the account, it would amount to a ratification of the sale.^ So, if the principal should sue the agent for the money received by him upon such sale, that would also amount to a ratification.^ So, if a factor should pur-» of the Roman law, as to a negotiorum gestor, is unfavorable to it. But, on the other hand, it would be difficult to say, that his silence ought in no case to be construed as a ratification. See 1 Liverm. on Agency, 44, 50-52 (ed. 1818) ; Ante, § 239. If the act is bona fide done for the apparent benefit of the prin- cipal, it would be harsh to say, that its being done by a stranger, does not entitle him to the benefit of the silence of the principal, as a presumptive ratification, where he has had full notice of the act, and has done nothing to repudiate it. " Paley on Agency, by Lloyd, 122, and note ; Id. 172, 173 ; Wilson u. Poul- ter, 2 Str. 859 ; Smith v. Hodson, 4 T. R. 211 ; Ferguson v. Carrington, 9 B. 6 Cressw. 59 ; Peters v. Ballestier, 3 Pick. 495, 505, 506 ; Copeland v. The Merc. Ins. Co. 6 Pick. 198 ; Ham v. Boody, 20 N. H. 411 ; Dodge v. Lambert, 2 Bosw. 570. [* Accepting the benefit of the acts of an unauthorized agent is a ratification of his authority. Woodbury v. Larned, 5 Minn. 339.] ^ Richmond Manuf. Co. v. Starks, 4 Mason, 296. ' Paley on Agency, by Lloyd, 172, 173 ; Wilson v. Poulter, 2 Str. 859 ; BoUen V. Hyde, 1 Atk. 128 ; Smith v. Hodson, 4 T. R. 211 ; Hovil v. Pack, 7 East, 164, 166 ; Zino v. Verdelle, 9 La. 61. But see Hunter v. Prinsep, 10 East, 378, 394 ; Penemore v. United States, 3 Dall. 357 ; Kelley v, Munson, 1 Mass. 319 ; Woodward v. Suydam, 11 Ohio, 363. In Peters v. Ballestier, 3 Pick. 496, 606, the court held, that the mere bringing of a suit in assumpsit, by the assignees, under a bill of lading, for the proceeds of a cargo wrongfully sold by the master to creditors of the assignor, who had deducted their debt therefrom, for which sum the suit was brought against the creditors, but which suit was discontinued before a trial, and trover brought for the goods against the creditors, was not an affirmance of the sale ; it appearing, that, before the suit in assumpsit was brought, the assignees had written to the creditors, say- ing, that the whole cargo belonged to them, and that the money was paid wrong- fully, and claiming to have it repaid. The assignees, therefore, had full knowledge of all the facts; but seem to have brought the 'action of assumpsit under a mistake of the law. Perhaps it may be thought, that the doctrine of this case, upon this point, may. require further consideration, since 'the action 302 AGENCY. [CH. IX. chase goods contrary to his orders ; and. the principal should, by letter, refuse to accept the contract ; but yet, having received the goods, he should afterwards sell them, not on his factor's account, hut on his own account ; that would amount to a ratification of the purchase.! [And if the act of one professing to be authorized of assumpsit may be, treated as a waiver of the tort. But then, upon the authority of Hunter v. Prinsep, 10 East, 378, 394, ought it so to be treated? ' Cornwall II. Wilson, IVes. 609; 1 Liverm. on Agency, 896, 396 (ed. 1818) ; Paley on Agency, by Lloyd, 28, 29, 31. The case of Hunter ». Prinsep, 10 East, 378, 394, seems to present an apparent exception to the rule, although it may be distinguished from the other cases. There, the master of a ship, which was wrecked in a foreign port, sold the cargo, and remitted the proceeds to the owners of the ship ; and the owner of the cargo brought an action for money had and received to his use. It was contended, that, by this form of action, the plaintiff had affirmed the master's act in selling the goods ; and that, con- sequently, the owners of the ship had a right to retain for the freight, pro rata ; for the sale so affirmed had dispensed with the prosecution of the voyage. But it was held, that the plaintiff might recover without any deduction for freight ; and that the only effect of this form of action was to waive any complaint, with a view to damages, of the tortious act, by which the goods were converted into money ; and to confine the plaintiff's right to recover the net proceeds of the sale. On that occasion, Lord Ellenborough said, "The fallacy of the argu- ment, on the part of the defendants, appears to us to consist in attributing more effect to the mere form of this action, than really belongs to it. In bringing an action for money had and received, instead of trover, the plaintiff does no more than waive any complaint, with a view to damages, of the tortious act, by which the goods were converted into money ; and takes to the net proceeds of the sale, as the value of the goods; subject, of course, to all the consequences of considering the demand in question as a debt, and, amongst others, to that of the defendants having a right of set-off, if they should happen to have any counter demand against the plaintiff." See also Taylor v. Plumer, 3 M. & Selw. 662, 679, 580, where the doctrine is established, that the owner is entitled to pursue his property, in whosever hands he may find it, and into whatever other form it may have been converted. Upon this ground the action in Hunter v. Prinsep, 10 East, 378, was maintainable, although the goods had been illegally converted into money, as the money was the money of the plain- tiff. Whether the doctrine in these cases is reconcilable with the decision in Wilson V. Poulter, 2 Str. 859, and BoUon v. Hyde, 1 Atk. 128, may admit of some doubt ; for in each of these cases, the property, for which the assignees sued, was their own, according to the principles established in Taylor ». Plumer, 3 M. & Selw. 562 ; and, consequently, they might sue for it in the very form which they adopted, without confirming the conversion. See post, § 389 ; Paley on Agency, by Lloyd, 173, 174, and notes, ibid. ; Jackson «. Clarke, 1 T. & Jerv. 216 j Peters v. Ballestier, 3 Pick. 496, 506, 506 ; Fenemore v. United States, 3 Dall. 357 ; Vernon v. Hankey, 2 T. R. 113, 121 ; Kelley v. Munson, §§ 259-261.J LIABILITIES TO THIRD PERSONS. 303 as agent of a corporation, in the sale or mortgage of property, be such as will admit of a ratification without any formal instru- ment or express vote, and the consideration come to the use of the corporation, and is retained, that will be evidence of a ratifi- cation.^] § 260. In many cases, also, a ratification will be inferred from the mere habits of dealing between the parties, even where the course of dealing between them may not amoxmt to satisfactory proof of an original authority .^ Thus, if a broker has been accus- tomed in some instances to settle losses on policies for his prin- cipal in a particular manner, without any objection being made, or with the subsequent acquiescence of his principal, and he should afterwards settle other policies in the same manner, to which no objection sliould be made within a reasonable time, a presumption would arise of an implied ratification, even though the principal might, in some other cases, have expressed a disap- probation of that mode of settlement.^ CHAPTER X. LIABILITIES OP AGENTS TO THIRD PERSONS, ON CONTRACTS. [* § 261. Generally, a man known to be contracting merely as the agent of another, who ia known as the principal, within his authority, will not be personally responsible. 262. Agent not exempted from personal responsibility where he chooses to incur it, or where from his act, or the form of the contract, the law implies it. 263. When no credit is given to an agent, but exclusively to the principal, agent is not personally responsible. 264. Person undertaking to act as the agent of another without authority, and an agent exceeding his authority, are personally responsible to the party with whom they deal. 264 a. Remedy in such cases. Authorities not agreed as to the form. 265. Liability of agent contracting in name of principal, but without due authority, founded upon supposition that want of authority is unknown to the other party. 265 a. Where agent contracts in name of principal, but his authority has been revoked 7 Mass. 319 ; Willinks v. HoUingsworth, 6 Wheat. 240 ; 2 Smith's Lead. Cas. 81, and note (2d ed.). ' Despatch Line of Packets v. Bellamy Manuf. Co. 12 N. H. 237. ' Ante, § 95. ' See Paley on Agency, by Lloyd, 280-282. 304 AGENCY. [CH. X. by death of Ma principal unknown to both parties, agent is not personally responsible. 266. Person contracting as agent will be personally responsible where, at time of con- tracting, he does not disclose the agency. 267. Same principle applies where agents are known to be such, and acting as such, but the name of the principal is not disclosed. 268. Agents or factors acting for merchants resident in foreign country presumed to be personally liable. 268 a. Contract may be expressed to be with the principal, and not with the agent, and the agent is not bound. 269. Agent may contract in his own name, or Toluntarily incur personal responsibility and be himself liable. 270. Illustrations. 271. Roman law carried this doctrine further. Modern European nations, whose law is based on the Eoman, follow the principles of our law in this respect. 272. Agents procuring policies of insurance in their own name, avowedly for their em- ployers, most common illustration of foregoing doctrine. 273. AJbrtiori the doctrine applies where the instrument is under seal, and purports to be, not the deed of the principal, but of the agent. 274. Liability of agent may arise by implication from his own acts, with reference to a written contract to which he is not originally a party. 274 a, 274 b. It does not follow necessarily, that, if the principal is not bound, the con- tract can in all cases be enforced by or against the agent personally. 275. It is sometimes a difficult question, whether the form of the instrument does or does not impiort a personal liability on the part of the agent. 275 a. Similar difficulties in the Scottish courts. 276. 277. Cases illustrating the difficulties growing out of the interpretations of particu- lar instruments. 278. Quare, whether, because the principal may be indirectly liable on the contract, therefore the agent is exonerated from all personal responsibilty. 279. Question, who is liable, generally, for the jury. Generally, he is, to whom credit is given. 280. Agents generally personally responsible where there is no other responsible prin- cipal. 281. Principle of doctrine. Roman law the same. 282-284. Same doctrine has been applied to cases where persons are acting in a public official character on behalf of irresponsible persons. 285-286 a. Further illustration of same doctrine. 287. Exceptions to the general rule, that the agent is personally responsible where there is no other responsible principal to whom resort can be had. 288. But in all the cases the question is to whom was the credit .knowingly given, according to the understanding of both parties. 289. Whenever exclusive credit is given to an agent in any transaction for a known principal, the party must abide his election, and cannot hold the principal. 290. Cases in which the presumption of an exclusive credit being given to an agent is almost a conclusive presumption of law. 291. But credit given to an agent is not an exclusive credit, unless the principal was disclosed. 292. Same doctrine as to liability of principal as well as agent is recognized in many, if not all, continental nations of Europe. 293. Reciprocal credit between principal, agent, and third persons, arises in some par- ticular agencies from usages of the trade or intendment of law. 294. Most striking case of this sort, is that of master of a ship. 295. Peculiarity of Roman law on this subject. 296. But parties may give exclusive credit to either owner or master. § 261. J LIABILITIES TO THIRD PERSONS. 305 297-299. Facts or circumstances tending to determine the question to whom exclusive credit was given. 800. Cases where a party who has paid money to an agent for his principal may recall it. 301. Illustrations.] § 261. Let us, in the next place, proceed to the consideration of the liabilities of agents to third persons. This may be eitlier on contracts, or on torts. And first, on contracts. In general, when a man is known to be acting and contracting merely as the agent of another, who is also known as the principal, his acts and contracts, if he possesses full authority for the purpose, will be deemed the acts and contracts of the principal only, and will involve no personal responsibility on the part of the agent, unless the other circumstances of the case lead to the conclusion, that he has either , expressly or impliedly incurred, or intended to incur, such personal responsibility .^ If a different rule were to prevail, it would greatly embarrass all the transactions of parties, and especially those of a commercial nature through the instru- mentality of agents ; since the latter could never escape a per- sonal responsibility, in the execution of a mere authority, by any precautions whatsoever. This was one of the embarrassments growing out of the strict rule of the Roman civil law, whereby acts done, and contracts made, through the instrumentality of agents, did not, ordinarily, bind the principals, ex directo, to each other, so as to create mutual obligations and rights of action by and between them.^ Tlie remedy was limited to the immediate > 3 Chitty on Com. & Manuf. 211, 212 ; Post, § 263 ; Paley on Agency, by Lloyd, 368, 369 ; Paterson v. Gandesequi, 15 East, 62 ; Ex parte Hartop, 12 Ves. 352 ; Owen «. Gooch, 2 Esp. 567 ; Mauri v. Heffernan, 13 John. 68, 77 ; Smith on Merc. Law, 78, 79 ; Johnson v. Ogilby, 3 P. Will. 277 ; 2 Kent, Comm. Lect. 41, pp. 629, 630 (3d ed.) ; Rathbone v. Budlong, 15 John. 1 ; Meyer v. Barker, 6 Binn. 234 ; Waring v. Cox, 1 Miller, La. 198 ; Thomson v. Davenport, 9 B. & Cressw. 78. See also Mr. Smith's able note to this case, in his Leading Cases, Vol. 2, pp. 222-227 ; Thomas's Ex'or v. Edwards, 2 Mees. & Wels. 215 ; Haight v. Sohler, 30 Barb. 224 ; Krumbhaar w. Ludeling, 3 Mil- ler, La. 642 ; La Farge v. Ripley, 16 Martin, 308 ; Zacharie v. Nash, 13 La. 21 ; Smith on Merc. Law, p. 140 (3d ed. 1843) ; Campbell v. Baker,. 2 Watts, 83. Mr. Chancellor Kent, in his learned commentaries, uses the following lan- guage: "It is a general rule, standing on strong foundations, and pervading every system of jurisprudence, that, where an agent is duly constituted, and names his principal, and contracts in his name, the principal is responsible, and not the agent." 2 Kent, Comm. Lect. 41, pp. 629, 630 (4th ed.) ; Ante, §§ 154, 165 ; Post, §§ 263-270. " Ante, § 163 ; Post, §§ 271, 425, 426. Mr. Livermore has remarked, 2 AGENCY. 20 306 AGENCY. [CH. X. parties to the act, or contract. The agent (and not his principal) had a direct remedy against the person, with whom he acted, or contracted ; and the latter had a direct remedy, upon the same Liverm. on Agency, pp. 253, 254 (ed. 1818) , upon this peculiarity of the Roman law. He says, " The Roman lawyers made a distinction between a promise, made in the name of a third person, that such third person should do a par- ticular act, and an engagement to procure him to do it. In the first case they held, that the agent was not bound; in the last, that he was. It is a principle of the Roman law, that no person can stipulate, or promise, except for himself. If therefore, John had promised Peter, that Paul should give him a sum of money, or do for him any particular act, neither John nor Paul would, by that law, have incurred any obligation. But, if the promise had been, to procure Paul to give the money, or to do the act, this would have been a valid under- taking on the part of John, which would have made him responsible to Peter. In the first case, it is said, that it does not appear to have been the intention of the party, who made the promise, to bind himself; that there is no consent from him to give, or to do ; or if there were, that he has not expressed it ; and, there- fore, there can be no obligation. From the nature of the act to be done, how- ever, the presumption was often admitted, that the person promising did not promise simply for another, but that he had engaged himself for the perform- ance, although not so expressed ; as, if a person promised, that another would be his surety ; or if, the agent's authority being doubted, he promised, that his principal should ratify his act. Vinnius says, that in Holland, and in most parts of Europe, he, who promises for the performance of another, is understood to engage himself for that performance." The texts of the Roman law, which he cites, are as follows : " Si quis alium daturum facturumve quid promiserit, non obligabitur ; veluti, si spondeat Titium quinque aureos daturum. Quod si, eflfecturum se, ut Titius daret, spoponderit, obligatur. Inst. Lib. 3, tit. 20, § 3. Itaque alius, pro alio, promittens daturum facturumve eum, non obli- gatur ; nam de se quemque promittere oportet. D. Lib. 45, tit. 1, 1. 83, Introd. Nemo autem alienum factum promittendo obligatur. D. Lib. 45, tit. 1, 1. 38, Introd. Sicut reus principalis non alias, quam si de sua persona promittat, obligatur : Ita fidejussores non alias tenentur, quam si se quid daturos vel fac- turos promittant. Nam reum principalem daturum vel facturum aliquid frustra promittunt ; quia factum alienum inutiliter promittitur. D. Lib. 46, tit. 1, 1. 65." " Quotiens quis alium sisti promittit, nee adjicit poenam (puta, vel servumsuum, vel hominem liberum) , quseritur, an committatur stipulatio ? Et Celsus ait, etsi non est huic stipulationi additum, nisi steterit, pcenam dari ; in id, quanti inter- est sisti, contineri. Et verum est, quod Celsus ait ; nam qui alium sisti pro- mittit, hoc promittit, id se acturum, ut stet. D. 45, tit. 1, 1. 81. Et vide D. Lib. 13, tit. 5, 1. 14, § 2, et D. Lib. 45, tit. 1, 1. 38." The language of the Code on this very point is very direct : Certissimum enim, est, ex alterius con- tractu neminem obligari. Cod. Lib. 4, tit. 12, 1. 3. Vinnius, in his commen- tary on the passage, in 3 Instit. Lib. 3, tit. 20, § 3, n. 1, states the reasoning, on which the distinction is founded, in the following words : "Qui alium daturum aut facturum promittit, neque ipse obligatur, neque alium obligat. Cur alium non obliget, ratio manifesta est, quia nemo ex contractu alterius obligari potest, § 261.] LIABILITIES TO THIRD PERSONS. 307 act, or contract, against the agent personally, and against him only.^ It was to cure this defect in the administration of justice in commercial transactions, that the prsetor interfered, and, in the case of shopkeepers, and owners and employers of ships, or other persons engaged in trade, made them (as we have seen) directly liable for the acts done, and for the contracts made by the clerks, ship-masters, and other agents (called institores'), employed by them, within the scope of their ordinary business.^ However, in cases where the principal was so bound, the agent, acting as institor, was not, ordinarily, deemed to be personally bound, when he openly acted in the name of his principal, and not in his own.^ 1. 3, C. ne ux. pro mar. Cur ipse non obligetur, duse causae sunt : una, quia non consentit, ut det aut faciat: altera, quia, etsi proponamus, eum dare aut faoere velle, tamen verbis id non promittit ; quorum utrumque per se solum ex regulis communibus stipulationum satis est ad impediendam verborum obliga- tionem. De se igitur quemque promittere oportet, si eum obligari volumus. D. 1. inter. 83, in pr. de verb. obi. Sed an non saltern hactenus eum, qui alium daturum aut facturum promisit, obligari dicimus, ut curare debeat, ut ille alius det, aut faciat ? Dicendum est, ne hactenus quidem eum obligari ; aUoqui stipulatio hsec non esset inutilis ; sed factum alienum utilitur promitteretur, contra quam in universum definit Hermogen. L. sicut 66, de fidejuss. & Ulpian. 1. stipulatio, 38, in pr. de verb, obi." ' Ante, § 163 ; 1 Stair, Instit. by Brodie, B. 1, tit. 12, §§ 16, 86 ; Ersk. Inst. B. 3, tit. 3, §§ 43, 46 ; 2 Liverm. on Agency, ch. 11, pp. 853, 354 (ed. 1818). The only remedy, by the agent, in such cases, was against his princi- pal, to compel him to a personal and strict performance of what the agent, in his behalf, had undertaken should be done. See 1 Domat, B. 1, tit. 15, § 2, art. 1, § 6; Id. § 1, art. 11; Id. tit. 17, § 2, art. 1. ' Ante, §§ 8, 88, 128 ; 1 Domat, B. 1, tit. 16, § 3, art. 1-3 ; Dig. Lib. 14, tit. 3, 1. 1; Pothier, Pand. Lib. 14, tit. 1, n. 9, 10, 17, 18; Id. tit. 3, li. 1-4; Dig. Lib. 14, tit. 3, 1. 1, 3, 4; Ersk. Inst. B. 8, tit. 3, §§ 43, 46 ; 1 Stair, Inst. B. 1, tit. 12, §§ 16, 18, 19. The language of the Digest on this subject is : .Slquum Prsetori visum est, sicut commoda sentimus ex actu Institorum, ita etiam obligari nos ex contractibus ipsorum, et conveniri. Dig. Lib. 14, tit. 3, 1. 1 ; Pothier, Pand. Lib. 14, tit. 3, n. 1 ; Id. tit. 1, n. 1, 2. In these cases, although the Prtetor gave an action against the principal, in favor of third per- sons dealing with his agent, institor, or shipmaster, yet his edict did not give a reciprocal action by the principal against such third person, and the remedy was doubted. Dig. Lib. 14, tit. 1, 1. 1, § 18; Id. tit. 3, 1. 1; Pothier, Pand. Lib. 14, tit. 1, n. 18 ; Id. tit. 3, n. 4, and Pothier's note (3), who suggests that the equity is reciprocal. = 1 Domat, B. 1, tit. 16, § 3, art. 8;' Dig. Lib. 14, tit. 3, 1. 20; Pothier, Pand. Lib. 14, tit. 1, n. 9, 10, 17, 18; Id. tit. 3, n. 2; Ersk. Inst. B. 3, tit. 8, § 46; Pothier on Oblig. n. 74, 447-449; 1 Emerig. Assur. ch. 5, § 3, pp. 137, 138. The case put in the Digest is that of a banker, whose agent wrote a let- 308 AGENCY. [CH. X. § 262. The rule of our law, which ordinarily exempts agents who are acting within the scope of their authority, from all lia- bility, is certainly founded in general convenience and sound policy.^ And it has, accordingly, been generally adopted by the modern commercial nations of Europe.^ But our law does not, any more than the law of those nations, exempt the agent from personal responsibility, where he chooses, by his own act or con- tract, voluntarily to incur it, or where, from his own conduct, or the form of the act or contract, it is necessarily implied, or created, by operation of law.^ Perhaps, after all, the Eoman law did not, in this respect, differ so essentially in principle from ours, as at first view it would seem to differ. That law held the agent ter, as agent of his principal, informing another person of a sum of money put to his credit ; in which it was held, that the agent was not personally respon- sible therefor. Lucius Titius mensse nummulariae, quam exercebat, babuit libertum prsepositum. Is Gaio Seio cavit in hsec verba. ' ' Octavius Terminalis, rem agens Octavii Feliois, Domitio Felici, Salutem. Habes penes mensam patroni mei denarios mille, quos denarios vobis numerare debebo pridie kalen- das Maias." Qusesitum est, Lucio Titio defuncto sine hserede, bonis ejus venditis, an ex epistola jure conveniri Terminalis possit? Respondit, nee jure his verbis obligatum, nee sequitatem conveniendi eum superesse ; quum id In- stitoris officio, ad fidem mensse protestandam, scripsisset. Dig. Lib. 14, tit. 3, 1. 20 ; Pothier, Pand. Lib. 14, tit. 3, n. 2 ; 2 Emerig. Assur. oh. 4, § 12, pp. 465, 466 ; Ersk. Inst. B. 3, tit. 3, § 46'; 1 Domat, B. 1, tit. 16, § 3, art. 8; 2 Liverm. on Agency, ch. 11, p. 247, and note. And again it is said, Item; si procurator! tuo mutuam pecuniam dedero tui contemplatione, ut creditorem tuum, vel pignus tuum liberet; adversus te negotiorum gestorum habebo actionem ; adversus eum, cum quo contraxi, nuUam. Dig. Lib. 3, tit. 5, 1. 6, § 1 ; Pothier, Pand. Lib. 3, tit. 5, n. 4. ' 2 Kent, Comm. Lect. 41, pp. 629, 630 (4th ed.). " 1 Stair, Inst, by Brodie, B. 1, tit. 12, §§ 16, 18, 19 ; Ersk. Inst. B. 3, tit. 3, §§ 45, 46 ; 1 Domat, B. 1, tit. 16, § 3, art. 8 ; Pothier on Oblig. n. 74, 447-449 ; 1 Domat, B. 1, tit. 16, § 3, art. 8 ; 1 Emerig. Assur. ch. 6, § 3, pp. 137, 138; 2 Emerig. Assur. ch. 4, § 12, p. 465; Pothier, Traits de Assur. n. 96. Emerigon lays down (2 Emerig. Assur. ch. 4, § 12, p. 465) the general rule, in these words : " En r^gle gen^rale, le commissionnaire, qui promet, qui stipule, qui agit en sa quality de prepos6, ne s'oblige pas en son nom propre. II est simple ministre et ex^cuteur. II est tenu a rien de plus qu'a exhiber son mandat. Mais le commissionnaire, qui contracte en son nom, s'oblige sans distinction vis-ck-vis du tiers avec qui 11 contracte, parce qu'on ignore sa quality, et qu'il est cens6 plutot agir pour soi, que pour autrui. Fotius meo nomine, quam pro alio. Post, § 271. 3 Pothier on Oblig. n. 74, 447, 448 ; Paley on Agency, by Lloyd, 368, 369; Ante, § 261 ; Post, §§ 263-270. §§ 262, 263.] LIABILITIES TO THIRD PERSONS, 309 (as we have seen) ^ to be personally liable, in cases where he was the sole immediate party to the contract ; but if he was named and acted solely as agent for a known principal, he was ordinarily exempted from liability .2 The principal difference between our law and the Roman law seems to have been, that ordinarily, and independently of the praetor's edict, the agent could contract only in his own name, and not in that of his principal, and the latter was not directly bound thereby.^ § 263. In regard to the liability of agents to third persons, it may, then, be laid down as a general rule, subject to the excep- tions hereafter stated : (1) That, when an agent executes a deed, or other instrument, in the name of his principal, he is not per- sonally bound thereby ; (2) That when he makes an oral or verbal contract, as agent for another, and at the same time he names his principal, he is not personally bound thereby;* 1 Ante, § 261 and note ; Dig. Lib. 14, tit. 3, 1. 20 ; Pothier, Pand. Lib. 14, tit. 3, n. 2 ; 1 Domat, B. 1, tit. 16, § 3, art. 8 ; Pothier on Oblig. u. 74, 447, 448; 2 Liverm. on Agency, 248, 249, note (ed. 1818). " Domat has laid down the doctrine in the following terms : " Factors and agents, who treat only in this quality (i. e. as agents), are not bound in their own names by the engagements which they contract on account of the business which is intrusted to them, and in the name of their masters." 1 Domat, B. 1, tit. 16, § 3, art. 8, by Strahan. See also 1 Emerig. Assur. ch. 5, § 3, pp. 137— 139, who lays down the same rule as that in the text, that the agent is not per- sonally bound, where he contracts in the name of his principal. His language is (as we have seen), that, by the general rule, the agent (le commissionnaire), who acts in this quality, is not held in his own proper name. Ante, § 262, note. It is also a rule, that he who acts on account of a friend, or for a person to be named, is not bound personally, and acquires nothing for himself, when he names the person for whom he has acted, or whom he has pointed out. This designation (nomination) has a retroactive effect to the time of the con- tract, which is considered as if it had been made by the person named. He admits, however, that in cases of insurance, usage has overborne the theory, and made the agent personally liable. But in such cases the agent for the insurance, although he contracts on account of another, becomes himself a party to the contract. Ibid. Our law on this very point conforms to the usage stated by Emerigon ; and the like doctrine is supported by Valin and Pothier. 2Valin, Comm. Liv. 3, tit. 6, art. 3, pp. 33, 34; Pothier, Assur. n. 96 ; 2 Emerig. Assur. ch. 4, § 12, pp. 466. 467. ^ 2 Valin, Comm. Liv. 3, tit. 6, art. 3, pp. 33, 34; Pothier, Assur. n. 96; 2 Emerig. Assur. ch. 4, § 12, pp. 465, 467. • [But see Lord Campbell, C. J., in Parker v. Winlow, 7 El. & Bl. 946, that the qualification of Lord Erskine was that the agent must name his princi- pal, " as the person to be responsible."] 310 AGENCY. [CH. X. (3) And as a corollary from the preceding propositions, or, rather, as a generalization of them, that, when, in making a contract, no credit is given to himself, as agent, but credit is exclusively given to his principal, he is not personally liable thereon.^ Indeed, in most cases of purcliases, and sales, and contracts for labor and services, through the instrumentality of an agent, the great question is, to whom credit is given, whether to the principal alone, or to the agent alone, or to both.^ § 264. Let us proceed, then, to the important inquiry, in what cases an agent is personally responsible to third persons for acts done, or for contracts made with them, in the name, or on behalf of his principal. And, in the first place, it may be stated, that, wherever a party undertakes to do any act, as the agent of an- other, if he does not possess any authority from the principal therefor, or if he exceeds the authority delegated to him, he will ' Paley on Agency, by Lloyd, 368, 369 ; Goodbaylie's case, Dyer, 230, b. Marg. ; Owen v. Gooch, 2 Esp. 567 ; 3 Liverm. on Agency, ch. 11, pp. 246, 246 (ed. 1818) ; 3 Chitty on Com. & Manuf. 211, 212 ; Meyer v. Barker, 6 Binn. 234 ; Johnson v. Ogilby, 3 P. Will. 277 ; Dubois v. Delaware & Hudson Canal Co. 4 Wend. 285; 4 Kent, Comm. Lect. 41, pp. 631, 632 (4th ed.) ; Hall v. Huntoon, 17 Vt. 244 ; Colvin v. Holbrook, 2 Com. Appeal Cases (N. T.), 126. In Ex parte Hartop, 12 Ves. 362, Lord Chancellor Erskine said, "No rule of law is better ascertained, or stands upon a stronger foundation than this ; that where an agent names his principal, the principal is responsible, not the agent. But, for the application of that rule, the agent must name his principal, as the person to be responsible. In the common case of an upholsterer, employed to furnish a house ; dealing himself in only one branch of business, he applies to other persons to furnish those articles in which he does not deal. Those persons know the house is mine. That is expressly stated to them. But it does not follow, that I, though the person to have the enjoyment of the articles furnished, am responsible. Suppose another case. A person instructs an attorney to bring an action, who employs his own sta- tioner, generally employed by him. The client has nothing to do with the stationer, if the attorney becomes insolvent. The client pays the attorney. The stationer, therefore, has no remedy against the client." Upon a similar ground, where goods were consigned to A. B. for the London Gas Co. or his assigns, he or they paying freight, and the goods were delivered to A. B., it was held, that he was not liable for the freight. Amos v. Temperley, 8 Mees. & Wels. 798, 805. See the English Jurist, March 11, 1843, p. 75. See Post, §§ 274, 395. See also 2 Liverm. on Agency, ch. 11, p. 247, note (ed. 1818). « Paley on Agency, by Lloyd, 367, 370; Graham ». Stamper, 2 Vem. 146 ; Post, §§ 266-270, 279 ; 2 Kent, Comm. Lect. 41, pp. 632, 633 (4th ed.) §§ 263, 264.] LIABILITIES TO THIRD PERSONS. 311 [in some form of action] be personally responsible therefor to the person, with whom he is dealing for or on account of his prin- cipal ^ [both for the amount of the contract, and for the costs incurred, if any, by the other party in a fruitless suit against the supposed principal] .^ There can be no doubt, that this is, and ought to be, the rule of law in the case of a fraudulent represen- tation made by the agent, that he has due authority to act for the prhicipal ; for it is an intentional deceit. The same rule may justly apply, where the agent has no such authority, and he knows it, and he nevertheless undertakes to act for the principal, although he intends no fraud.^ But another case may be put, which may seem to admit of more doubt ; and that is, where the party undertakes to act, as an agent, for the principal, bond fide, believing that he has due authority ; but, in point of fact, he has no authority, and, therefore, he 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 turpitude.* This whole doctrine proceeds upon a plain principle of justice ; for every per- son, so acting for another, by a natural, if not by a necessary, implication, holds himself out, as having competent authority to do the act ; and he thereby draws the other party into a recipro- cal engagement. In short, the signature of the agent amounts to an affirmation, that he has authority to do the particular act ; or, ' Paley oq Agency, by Lloyd, 386, 387 ; Polhill v. Walter, 3 B. & Aldolph. 113; Parrott «. Wells, 2 Vern. 127; Bayley on Bills, oh. 2, § 7 (5tli ed.) ; 3 Chitty on Com. & Manuf. 212 ; 2 Liverm. on Agency, 255, 256 (ed. 1818) ; Sumner v. Williams, 8 Mass. 178 ; Bowen v. Morris, 2 Taunt. 385, 386 ; East India Co. v. Hensley, 1 Esp. 112 ; Smith on Merc. Law, 79, 80 (2d ed.) ; 2 Kent, Comm. Lect. 41, pp. 629-632 (4th ed.) ; Johnson v. Ogilby, 3 P. Will. 278, 279 ; Meech v. Smith, 7 Wend. 315 ; Dusenbury v. Ellis, 3 John. Cas. 70 ; per Lord Holt, in Holt's Rep. 309. See Woodes v. Dennett, 9 N. H. 65 ; Jones V. Downman, 4 Adolph. & Ellis, n. s. 237, note ; Downman v. Jones, 9 Jurist, pp. 454r-468 (184.5) ; Palmer v. Stephens, 1 Denio, 471 ; Pitman ». Kint- ner, 5 Blackf. 260. I' Randell v. Trimen, 38 Eng. Law and Eq. 276 ; 18 Com. Bench, 786. And see CoUen v. Wright, 8 El. & Bl. 648.] ' Downman v. Jones, 9 Jurist, pp. 464-458 (1845). * Eandell v. Trimen, 37 Eng. Law and Eq. 280 ; 18 Com. B. 786 ; Smout v. nbery, 10 Mees. & Wels. 1, 9, 10. See Downman v. Jones, 9 Jurist, pp. 464- 458 (1846) . [ * See Kelner v. Baxter, 2 Law Reps. Com. Pleas, 174. Where this general subject is considerably discussed.] 312 AGENCY. [CH. X. at all events, that he bond fide believes himself to have that authority .1 If he has no such authority, and acts bond fide, still he does a wrong to the other party ; and if that wrong produces an injury to the latter, owing to his confidence in the truth of an express or implied assertion of authority by the agent, it is perfectly just, that he who makes such an 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.^ Indeed, it is a plain principle of equity, as well as of law, that where one of two innocent persons must suffer a loss, he ought to bear it, who has been the sole means of producing it, ' Post, § 265 ; Layng v. Stewart, 1 Watts & Serg. 222 ; Polbill v. Walter, 3 B. &Adolph. 114; Long v. Colburn, 11 Mass. 97; Dusenbury v. Ellis, 3 John. Cas. 70 ; Ballou v. Talbot, 16 Mass. 461 ; Meech v. Smith, 7 Wend. 315 ; Feeter u. Heath, 11 Wend. 477 ; Paley on Agency, by Lloyd, 386, 387. There is no doubt of the personal liability of the agent in all cases, where he falsely affirms, that he has authority ; as he does, when he signs the instrument, as agent of his principal, and knows that he has no authority. But, another question (as we see by the text) has been made, whether he is liable, when he supposes that he has authority, and he has none ; as, for example, where he misconstrues the instrument, conferring authority on him ; or, where the instru- ment, conferring the authority, turns out to be a forgery, and he supposed it to be genuine. In Polhill v. Walter, 3 B. & Adolph. 114, Lord Tenterden, in delivering the opinion of the court, seems to have thought, that the right of action was founded solely upon there being an affirmation of authority, when the party knew it to be false ; and that, therefore, if the party acted under the authority of a forged instrument, supposing it to be genuine, he would not be responsible. But there is great reason to doubt this doctrine ; for, if a person represents himself as having authority to do an act when he has not, and the other side has been drawn into a contract with him, and the contract becomes void for want of such authority, the damage is the same to the party who confided in such representation, whether the party making it, acted with a knowledge of its falsity or not. In short, he undertakes for the truth of his representation. No such distinction was relied on in Dusenbury v. Ellis, 3 John. Cas. 70; Rossiter v. Rossiter, 8 Wend. 494 ; Ballou v. Talbot, 16 Mass. 461 ; in all which cases the note was signed, or indorsed, without authority from the prin- cipal. The court there put the liability of the agent upon the general ground, that he acted without authority. The distinction of Lord Tenterden is now entirely overthrown in the recent case of Smout v. Ilbery, 10 Mees. & Wels. 1, 9, 10. See also the very able note of Mr. Smith, to the case of Thomson v. Davenport, 9 B. & Cressw. 78, in his " Leading Cases," Vol. 2, pp. 222-227; Post, § 265 a, note. As to what woijld be the effect of a subsequent ratifica- tion by the principal, and whether it would take away any right of action against the agent, see ante, § 244, and note. • ' Smout V. Ilbery, 10 Mees. & Wels. 1, 9, 10; Post, § 266 a. §§ 264, 264 fl.J LIABILITIES TO THIED PERSONS. 313 by inducing the other to place a false confidence in his acts, and to repose upon the truth of his statements.^ § 264 a. But although an agent who undertakes to ac.t for a principal without authority, or exceeds his authority, is respon- sible [in some way] to the other contracting party therefor ; yet it may sometimes, under such circumstances, become a nice question, in cases of contracts made by him as agent, and in the name of his principal, in what manner the remedy is to be sought against him, whether by an action ex directo against him upon the contract itself, or by a special action on the case, for the wrong done thereby to the other contracting party. It seems clear, that in no case can an agent be sued on the very instru- ment itself, as a contracting party, unless there are apt words therein so to charge him. Thus, if a person acting as agent for another should, without authority or exceeding his authority, make and execute a deed in the name of his principal, and not in his own name, the agent would not be liable thereon, although it would not bind the principal.^ But, suppose there are apt ' Ante, § 56. See-Campbell v. Hillraan, 16 B. Monr. 516. » Stetson V. Patten, 2 Greenl. 358 ; Post, 274a, 277, 278 ; Ante, § 49, note; Wells ». Evans, 20 Wend. 251 ; Ante, § 49, note. [ * Taylor v. Shelton, 80 Conn. 122. The principle upon which one making a contract in behalf of another, without authority, is to be held liable, is learnedly discussed by Sel- den, J., delivering the opinion of the court in White v. Madison, 26 N. Y. Ct. Ap. 117, and concludes that his liability rests on the ground that he warrants his authority, and not that the contract is to be deemed his own ; and that the damages to which the proposed agent subjects himself are measured, not by the contract, but by the injury resulting from his want of power, and include, e. g., the costs of an unsuccessful action against the alleged principal to enforce the contract.] [See Abbey v. Chase, 6 Cush. 54, where the defendant signed his name as agent to a sealed instrument, the body of the covenant being in the name of the principal " by their agent, &c." Metcalf, J., said, " It does not appear whether the defendant had authority to bind the Hadley Falls Com- pany, by deed or otherwise. But in the view which we take of the case, that question is immaterial. We deem it very manifest, on inspection of the instru- ment in suit, that it was the intention of the defendant to bind the company, and not to bind himself; and that the plaintiff must have so understood the con- tract. And if this had been a simple contract, executed by an authorized agent, the law would have given effect to that intention. The company, and not the defendant, would have been bound. The authorities on this point are numerous and decisive. Northampton Bank v. Pepoon, 11 Mass. 292 ; Andrews ». Estes, 2 Fairf. 270 ; New England Ins. Co. v. De Wolff, 8 Pick. 56 ; Rice v. Gove, 22 Pick. 161 ; Bayley on Bills (2d Am. ed.) 72, 73. But when a sealed instrument is executed by an agent or attorney, for the principal, the strict 314 AGENCY. [CH. X. words in the instrument which may charge him personally, and yet he signs the same in his own name as agent of another, the question may be presented under a different aspect. Thus, technical rule of the common law, which has never been relaxed in England or in this commonwealth, requires that it be executed in the name of the principal, in order to make it his deed. Brinley v. Mann, 2 Cush. 337. In such cases, says Story, J., ' the law looks not to the intent alone, but to the fact, whether that intent has been executed in such a manner as to possess a legal validity.' 6 Pet. 350. See also Locke v. Alexander, 1 Hawks, 416. The plaintiff's counsel, in applying this strict rule to the instrument in suit, contends that it does not bind the Hadley Falls Company, and that, as the defendant has not bound the company, he has bound himself. But in deciding whether the defendant has or has not bound himself, we need not decide whether he has or has not bound the company. For it does not necessarily follow, that a contract, made by an authorized agent, which does not bind the principal, becomes the agent's con- tract, and makes him answerable if it is not performed. This depends upon the legal effect of the terms of the contract. If the agent employs such terms as legally import an undertaking by the principal only, the contract is the principal's, and he alone is bound by it. But if the terms of the contract legally import a personal undertaking of the agent, and not of the principal, then it is the contract of the agent, and he alone is answerable for a breach of it. So when one who has no authority to act as another's agent, assumes so to act, and makes either a deed or a simple contract, in the name of the other, he is not personally liable on the covenants in the deed, or on the promise in the simple contract, unless it contains apt words to bind him personally. Stetson V. Patten, 2 Greenl. 358 ; Ballou v. Talbot, 16 Mass. 461 ; Delius ». Cawthorn, 2 Dev. 90. The only remedy against him, in this commonwealth, is an action on the case for falsely assuming authority to act as agent. See also 13 Adolph. & Ellis, N. R. 744. " These principles lead us to the conclusion that the ruling at the trial of this case was wrong, and that the defendant is not chargeable in the present action. The instrument sued on purports to be, and was intended to be, a deed inter partes ; namely, the Hadley Falls Company and the plaintiff. The defendant, as agent of the company, signed his own name, merely adding thereto the word ' agent,' and affixed his own seal ; the plaintiff signed his name and affixed his seal ; and these acts were done as the acts of the parties before named. It seems to us impossible to charge the defendant, on this instrument, as on a contract made by him with the plaintiff. If any words had been in- serted in the instrument, expressing the defendant's personal undertaking to fulfil the contract on behalf of the company, he would have been personally bound, although the instrument was prepared as a deed inter partes. Salter v. Kingly, Carth. 76, and Holt, 210. But no such words are found in the instru- ment. " We cannot distinguish this case, in principle, from that of Hopkins v. Mehaffy, 11 Serg. & R. 126. In that case, articles of agreement were made between an incorporated turnpike company, of the one part, and Hopkins, of the other part, by which Hppkins agreed to finish the mason-work of a certain § 264 a.] LIABILITIES TO THIRD PERSONS. 315 for example, if an agent should, without due authority, make a promissory note, saying in it, " I promise to pay," &c., and sign it " C. D. by A. B. his agent," or « A. B. agent of C. D. ; " in such a case may the words as to the agency be rejected, and the agent be held personally answerable as the promisee of the note ? Upon this point the authorities do not seem to be entirely agreed.^ bridge, and find all the materials ; and the corporation agreed to pay him a certain sum for said work and materials. The conclusion of the agreement was thus: 'For the true and faithful performance of the covenants, agreements, and stipulations in these presents contained, the parties hereto bind themselves, each to the other, in the penal sum of two thousand dollars. In witness whereof, the said parties to these presents have hereunto interchangeably set their hands, and affixed their seals. James Mehafiy [seal] . Joseph Hopkins [seal] . Signed by the president in behalf of the president, managers, and company of the Manchester Turnpike-road, and by Joseph Hopkins, on his part, in presence of William Child.' An action of covenant broken was brought by Hopkins, against Mehaffy, the president; but it was decided that he was not liable. Gibson, C. J., said, 'The paper is not the defendant's deed. He sealed and delivered it undoubtedly ; but there is something more than sealing and delivery necessary to a deed. It ought to contain the proper parts of a contract ; and in this instrument there are no obligatory words applicable to the person of the defendant. Even the sealing and delivery were as the president, and in behalf of the corporation . If the defendant had authority to contract for the corpo- ration, although he has done so informally, there cannot be a doubt, that, as the work has been done, the plaintiff may have an action of some sort against it. But he never treated on the basis of the defendant being personally answer- able ; and to permit him to maintain this action would permit him to have, what was not in the contemplation of either party, recourse to the person of the agent.' See also Townsend v. Corning, 23 Wend. 436, and Townsend v. Hubbard, 4 Hill, 351." ' See Downman v. Jones, 4 Q. B. 235, note. In cases where a person ex- ecutes an instrument in the name of another without authority, there is some diversity of judicial opinion, as to the form of action in which the agent is to be made liable for the breach of duty. In England, it has been intimated that the suit must be by a special action on the case. Polhill v. Walter, 3 B. & Adolph. 114; Lewis v. Nicholson, 18 Q. B. 503; 12 Eng. Law and Eq. 430, and Bennett's note. The same doctrine has been asserted in Massachusetts. Long V. Colburn, 11 Mass. 97 ; Ballou v. Talbot, 16 Mass. 461 ; Jefts v. York, 4 Cush. 371, an important case on this subject ; s. C. 10 Cush. 392 ; and in Pennsylvania, in Hopkins v. Mehaffy, 11 Serg. & R. 129. And see Moor v. Wilson, 6 Foster, 332. [But more recently it has been adjudged in the Ex- chequer Chamber, that the agent is liable upon an implied contract that he has authority to bind his principal. CoUen v. Wright, 8 El. & Bl. 646 ; 7 id. 801. But see the very able dissenting opinion of Cockburn, C. J., in that case. It seems now well settled, that an agent is not liable on a written contract itself. 316 AGENCY. [CH. X. § 265. This doctrine, however, as to the liability of the agent, where he contracts in the name and for the benefit of the prin- cipal, without having due authority, is founded upon the supposi- tion, that the want of authority is unknown to the other party, or, if known, that the agent undertakes to guarantee a ratifica- tion of the act by the principal. But circumstances may arise, in which the agent would not or might not be held to be person- ally liable, if he acted without authority, if that want of authority was known to both parties, or unknown to both parties. Thus, if, at the time of the contract, the agent should declare that he had no authority, but that he thought his principal would ratify the act, as being for his benefit ; and, at the same time, he should declare that he only acted as expressive of his opinion made by him in the name of his principal, merely because he had no authority to execute such a contract. Jenkins v. Hutchinson, 13 Q. B. 744 ; Lewis v. Nicholson, 18 id. 503.] In New York [and some other States] , it has been held, that an action may, under such circumstances, be maintained upon the instrument, as if it were executed by the agent personally. Thus, if an agent, without authority, should sign a note in the name of another, it has been held that he may be sued thereon, as if it were his own note. Dusenbury v. Ellis, 3 John. Cas. 70 ; Roberts v. Button, 14 Vt. 195 ; Royce v. Allen, 28 id. 236 ; Ante, § 251, note. See also White v. Skinner, 13 John. 307 ; Meech v. Smith, 7 Wend. 315 ; Palmer v. Stevens, 1 Denio, 471. [But in New York this rule is limited to cases where there was a want of authority in fact to execute the contract. Walker v. Bank of New York, 5 Seld. 582.] [*In Massachusetts it is settled, that if the instrument purports to express the contract of the principal, the agent is not personally liable on it ; but that the remedy in such a case against him is by an action on the case for falsely representing himself to be authorized to bind his principal. Draper v. Mass. Steam Heating Co. 6 Allen, 338.] See further, Byarr v. Doores, 20 Mo. 284; Coffman v. Harri- son, 24 id. 524; Cunningham v. Soules, 7 Wend. 106; Stetson v. Patten, 2 Greenl. 358; 2 Kent, Comm. Lect. 41, pp. 631, 632 (4th ed.) ; Chitty on Contr. 211. See also Woodes v. Dennett, 9 N. H. 55 ; Royer v. Allen, 2 Wms. (Vt.) 236 ; Bank of Hamburg v. Wray, 4 Strobh. 87 ; Pettingell ». M'Gregor, 12 N. H. 180 ; Grafton Bank v. Flanders, 4 id. 239 ; Mahew v. Prince, 11 Mass. 64 ; 2 Kent, Comm. Lect. 41, pp. 631, 632 (4th ed.) ; Clay V. Oakley, 17 Martin, 138 ; Perkins v. Washington Ins. Co. 4 Cowen, 469, 645; Feeter v. Heath, 11 Wend. 477; Harper v. Little, 2 Greenl. 14; Lazarus- d. Shearer, 2 Ala. 452, 718, N. 8. However, if an agent, in purchasing goods, should exceed his authority, he may be properly treated as the purchaser, since no other person would be liable. Hampton v. Speckenagle, 9 Serg. & E. 212. [* Where an agent assumes, without authority, to bind another by a promissory note, and his language, stripped of what he had no right to place there, imports a promise by him personally, he will himself be bound as prom- isor. Weare v. Gove, 44 N. H. 196.] §§ 265, 265 a.] liabilities to third persons. 317 and belief, and did not intend to bind himself personally, if the principal should not ratify it, and this was fully understood and agreed to on the other side ; in such a case, there would not seem to be any legal ground upon which, in case of a non-ratifi- cation by the principal, the agent thus, acting bond fide, could be held personally responsible. § 265 a. But let us suppose another case, where an agent con- tracts in the name of his principal, having an original authority so to do ; and it turns out that, unknown to both parties, the authority has been revoked by the death of the principal, so that, in contemplation of law, there exists no principal ; the question will then arise, whether, inasmuch as neither the principal nor his legal representative is bound by the contract,^ the agent, who has acted bond fide, will, under such circumstances, be responsible to the other contracting party for any loss or damage sustained thereby. It has been recently held, upon very full consideration, and upon reasoning entirely satisfactory, that the agent will not, under such circumstances, be responsible ; upon the ground, that the continuance of the life of the principal must be deemed to be a fact equally within the contemplation of both parties, as the basis of the contract ; and, consequently, neither is deceived or misled by the other as to the conditions essential to give it validity. In short, each understands that the contract proceeds upon the presumption, that the principal is still living, and capable of being bound by the contract, and that the agent only stipulates for good faith and the existence of an original authority to make the contract. If, at the time, the agent should bond fide say to the other party, I know not whether my principal is dead or living ; but, if living, I warrant him bound by the contract ; no doubt could be entertained, that, if the principal were dead at the time, and his death were unknown to both parties, the agent would be absolved from all responsibility ; for the other party, in such a case, takes the contract sub modo, and conditionally. .Now, in legal contemplation, there is no distinction between such an express undertaking and an implied engagement to the same effect, virtually understood at the time by both parties, from the very circumstances of the case.^ ' Blades v. Free, 9 B. & Cressw. 167. ' Smout V. Ilbery, 10 Mees. & Wels. 1. [See Randell v. Trimen, 38 Eng. Law and Eq. 280 ; s. 0. 18 Com. B. 786 ; Carriger v. Whittington, 26 Mo. 313.] 318 AGENCY. [CH. X. § 266. In the next place, a person contracting as agent will be personally responsible, where, at the time of making the contract, he does not disclose the fact of his agency ; but he treats with In this case, a man, who was in the habit of dealing with the plaiutiiF, for meal supplied to his house, went abroad, leaving his wife and family resident in England, and died abroad. The action was brought against the wife, for meal supplied after the death of the husband, which was unknown to both parties ; and it was held, that the wife was not liable. Mr. Baron Alderson, in deliver- ing the opinion of the court, said, "We took time to consider this question, and to examine the authorities on this subject, which is one of some difficulty. The point, how far an agent is personally liable who, having in fact no au- thority, professes to bind his principal, has on various occasions been discussed. There is no doubt, that, in the case of a fraudulent misrepresentation of his authority, with an intention to deceive, the agent would be personally respon- sible. But, independently of this, which is perfectly free from doubt, there seem to be still two other classes of cases, in which an agent who, without actual authority, makes a contract in the name of his principal, is personally liable, even where no proof of such fraudulent intention can be given. First, where he has no authority, and knows it, but nevertheless makes the contract, as having such authority. In that case, on the plainest principles of justice, he is liable. For he induces the other party to enter into the contract, on what amounts to a misrepresentation of a fact peculiarly within his own knowledge ; and it is but just, that he who does so should be considered as holding himself out as one having competent authority to contract, and as guaranteeing the consequences arising from any want of such authority. But there is a third class, in which the courts have held, that, where a party, making the contract as agent, bond fide believes that such authority is vested in him, but he has in fact no such authority, he is still personally liable. In these cases, it is true, the agent is not actuated by any fraudulent motives ; nor has he made any statement which he knows to be untrue. But still his liability depends on the same principles as before. It is a wrong, differing only in degree, but not in its essence, from the former case, to state as true what the individual making such statement does not know to be true, even though he does not know it to be false, but believes, without sufficient grounds, that the statement will ulti- mately turn out to be correct. And, if that wrong produces injury to a third person, who is wholly ignorant of the grounds on which such belief of the sup- posed agent is founded, and who has relied on the correctness of his assertion, it is equally just that he who makes such assertion, should be personally liable for its consequences. On examination of the authorities, we are satisfied that all the cases in which the agent has been held personally responsible, will be found to arrange themselves under one or other of these three classes. In all of them it will be found, that he has either been guilty of some fraud, has made some statement which he knew to be false, or has stated to be true what he did not know to be true ; omitting, at the same time, to give such information to the other contracting party as would enable him, equally with himself, to judge as to the authority under which he proposed to act. Of the first, it is not neces- sary to cite any instance. Polhill v. Walter is an instance of the second ; and § 266.] LIABILITIES TO THIRD PBESONS. 319 the other party as being himself the principal ; for, in such a case, it follows irresistibly, that credit is given to him on account of the contract.^ Thus, if a factor or broker, or other agent, the cases where the agent never had any authority to contract at all, but believed that he had, as when he acted on a forged warrant of attorney, which he thought to be genuine, and the like, are instances of the third class. To these may be added those cited by Mr. Justice Story, in his book on Agency, p. 261, note 3 (§ 264, n. 2). The present case seems to us to be distinguishable from all these authorities. Here the agent had, in fact, full authority originally to contract, and did contract in the name of the principal. There is no ground for saying, that in representing her authority as continuing, she did any wrong whatever. There was no mala fides on her part ; no want of due diligence in acquiring knowledge of the revocation ; no omission to state any fact within her knowledge relating to it ; and the revocation itself was by the act of God. The continu- ance of the life of the principal was, under these circumstances, a fact equally within the knowledge of both contracting parties. If,, then, the true principle derivable from the cases is, that there must be some wrong or omission of right on the part of the agent, in order to make him personally liable on a contract made in the name of his principal, it will follow, that the agent is not respon- sible in such a case as the present. And to this conclusion we have come. We were, in the course of the argument, pressed with the difficulty, that, if the defendant be not personally liable, there is no one liable on this contract at all ; for Blades v. Free has decided, that in such a case the executors of the husband are not liable. This may be so ; but we do not think, that, if it be so, it affords to us a sufficient ground for holding the defendant liable. In the ordinary case of a wife, who makes a contract in her husband's lifetime, for which the husband is not liable, the same consequence follows. In that case, as here, no one is liable upon the contract so made. Our judgment, on the present occasion, is founded on general principles, applicable to all agents. But we think it right also to advert to the circumstance that this is the case of a married woman, whose situation as a contracting party, is of a peculiar nature. A person, who contracts with an ordinary agent, contracts with one capable of contracting in his own name ; but he who contracts with a married woman knows, that she is in general incapable of making any contract, by which she is personally bound. The contract, therefore, made with the husband by her instrumentality, may be considered as equivalent to one made by the husband exclusively of the agent. Now, if a contract were made on the terms that the agent, having a determin- able authority, bound his principal, but expressly stipulated, that he should not be personally liable himself, it seems quite reasonable, that, in the absence of all mala fides on the part of the agent, no responsibility should rest upon him. And, as it appears to us, a married woman, situated as the defendant was in this case, may fairly be considered as an agent so stipulating for herself; and on this limited ground, therefore, we think she would not be liable, under such circumstances as these." See post, § 495. ' Winsor v. Griggs, 6 Gush. 210 ; Owen v. Gooch, 2 Esp. 667 ; Post, § 291 ; Ex parte Hartop, 12 "Ves. 362 ; Paterson v. Gandasequi, 16 East, 62, 68 ; 3 Chitty on Com. & Manuf. 211 ; Mauri v. Heffernan, 13 John. 58, 77 ; 2 Liverm. 320 AGENCY. ■ [CH. X. buy goods in his own name for his principal, he will be respon- sible to the seller therefor in every case where his agency is not disclosed.! But we are not therefore to infer, that the principal may not also, when he is afterwards discovered, be liable for the payment of the price of the same goods ; for, in many cases of this sort, as we shall hereafter abundantly see, the principal and agent may both be severally liable upon the same contract.^ 267. The same principle will apply to contracts made by agents, where they are known to be agents, and acting in that character, but the name of their principal is not disclosed ; for, until such disclosure, it is impossible to suppose, that the other contracting party is willing to enter into a contract, exonerating on Agency, 245-247, 257 (ed. 1818) ; 2 Kent, Comm. Lect. 41, pp. 680, 631 (4th ed.) ; Stackpole v. Arnold, 11 Mass. 27 ; James v. Bixby, 11 Mass. 34, 37, 38; Bedford v. Jacobs, 16 Martin, 530; Brockway v. Allen, 17 Wend. 40, 43; 2 Kent, Comm. Lect. 41, pp. 629-631 (4tli ed.) ; Hyde v. Wolf, 4 Miller, La. 234 ; Taintor v. Prendergast, 3 Hill, 72 ; Corlies v. Gumming, 6 Cowen, 181 ; Bathbon v. Budlong, 15 John. 1 ; Waring v. Mason, 18 Wend. 425 ; Mills v. Hunt, 20 Wend. 431 ; Bedford v. Jacobs, 4 Miller, La. 528 ; Beebe v. Roberts, 12 Wend. 413; Raymond v. Crown & Eagle Mills, 2 Met. 319; Smith on Merc. Law, pp. 134, 136, 140, 141 (3d ed. 1843) ; Upton v. Gray, 2 Greenl. 373 ; Keen v. Sprague, 3 Greenl. 77 ; Parker v. Donaldson, 2 Watts & Serg. 9 ; McClellan v. Parker, 27 Mo. 162. [* Wheeler v. Reed, 86 111. 82. The duty is upon the agent, if he would avoid personal liability, to disclose his agency, not upon others to discover it. Baldwin v. Leonard, 39 Vt. 266.] ' Paley on Agency, by Lloyd, 371, 372 ; Morgan v. Cadar, cited ibid, note; 2 Kent, Comm. Lect. 41, pp. 630, 631 (4th ed.) ; see Dale u. Humfrey, 1 Ellis, Bl. & El. 1004; Gillett v. Oflfor, 18 C. B. 913; 3 Chitty on Com. & Manuf. 211 ; Smith on Merc. Law, 78, 79 (2d ed.) ; Id. ch. 6, § 5, pp. 184-136 ; 140, 141 (3ded. 1843). = Paterson v. Gandasequi, 15 East, 62, 68, 69 ; Smith on Merc. Law, 78, 79 (2d ed.) ; Id. oh. 5, § 5, pp. 134-186, 140, 141 (3d ed. 1843) ; Thompson v. Davenport, 9 B. & Cressw. 78, 88 ; Jones v. Littledale, 6 Adolph. & Ellis, 486 ; Pentz u. Stanton, 10 Wend. 271. In Jones v. Littledale, 6 Adolph. & Ellis, 490, Lord Denman, speaking on this point, said, " There is no doubt, that evi- dence is admissible on behalf of one of the contracting parties, to show, that the other was agent only, though contracting in his own name ; and so to fix the real principal. But it is clear, that, if the agent contracts in such a form as to make himself personally responsible, he cannot afterwards, whether his principal were, or were not, known at the time of the contract, relieve himself from that responsibility.'' Taintor v. Prendergast, 3 Hill, 72 ; Higgins v. Senior,. 8 Mees. & Wels. 834 ; Ante, § 264 ; Post, §§ 269, 270 ; Kymer v. Suwercropp, 1 Campb. 109 ; Raymond v. Crown & Eagle Mills, 2 Met. 319 ; Post, §§ 269, 270, 275; Hastings v. Lovering, 2 Pick. 221 ; 2 Kent, Comm. Lect. 41, p. 630 (4th ed.) ; Paige V. Stone, 10 Met. 160. §§ 266, 267.] LIABILITIES TO THIRD PERSONS. 321 the agent, and trusting to an unknown principal, who may be insolvent or incapable of binding himself.^ Thus where a con- tract is made with an auctioneer for the purchase of goods at a public sale, and no disclosure is made of the principal on whose behalf the commodity is sold, the auctioneer will be liable to the purchaser to complete the contract, although from the nature of public sales it is plain that he acts as agent only.^ So, if the agent should, at the time of the purchase of the goods, acknowledge that he is purchasing for another person, but should not then name him ; in such a case he would be held per- sonally liable, although the principal, when discovered, might also be liable for the debt.^ [So where a person signed a receipt ' Winsor v. Griggs, !) Cush. 210 ; Paley on Agency, by Lloyd, 372, 373 ; 3 Chitty on Com. & Manuf. 211 ; Paterson v. Gandasequi, 16 East, 62, 68, 69 ; Ex parte Hartop, 12 Ves. 352 ; Smith on Merc. Law, 78, 79 (2d ed.) ; Id. ch. 4, § 5, pp. 13^136, 140, 141 (3d ed. 1843) ; Thompson v. Davenport, 9 B. & Gressw. 78, 88 ; 2 Kent, Comm. Lect. 41, pp. 629-631 (4th ed.). ' Hanson v. Roberdeau, Peake, 120 ; Paley on Agency, by Lloyd, 372, 373 ; Jones V. Littledale, 6 Adolph. & Ellis, 486. [See Gillett v. Offor, 18 C. B. 913.] ' Thompson v. Davenport, 9 B. & Cressw. 78, 88; Smith on Merc. Law, 66, 78, 79 (2d ed.) ; Id. ch. 5, § 5, pp. 134-136, 140, 141 (3d ed. 1843). In Thompson v. Davenport, 9 B. & Cressw. 78, 86, 87, Lord Tenterden said, " I take it to be a general rule, that if a person sells goods (supposing, at the time of the contract, he is dealing with a principal) , but afterwards discovers that the person with whom he has been dealing is not the principal in the transaction, but agent for a third person, though he may in the mean time have debited the agent with it, he may afterwards recover the amount from the real principal, sub- ject, however, to this qualification, that the state of the account between the principal and the agent is not altered to the prejudice of the principal. On the other hand, if, at the time of the sale, the seller knows, not only that the person who is nominally dealing with him, is not principal, but agent, and also knows who the principal really is, and, notwithstanding all that knowledge, chooses to make the agent his debtor, dealing with him and him alone, then, according to the cases of Addison v. Gandasequi, and Paterson v. Gandasequi, the seller cannot afterwards, on the failure of the agent, turn round and charge the prin- cipal, having once made his election, at the time when he had the power of choosing between the one and the other. The present is a middle case. At the time of the dealing for the goods, the plaintilFs were informed that M'Kune, who came to them to buy the goods, was dealing for another, that is, that he was an agent, but they were not informed who the principal was. They had not, there- fore, at that time, the means of making their election. It is true, that they might, perhaps, have obtained those means, if they had made further inquiry ; but they made no further inquiry. Not knowing who the principal really was, they had not the power, at that instant, of making their election. That being AGENCT. 21 322 AGENCY. [CH. X. for goods to be forwarded over several railroad lines, but he did not disclose for what corporations he acted, nor did the other party know, and there were several routes and companies which would satisfy the description given in the receipt, which was signed " G. W. for the corporations," G. W. was held not liable so, it seems to me that this middle case falls, in substance and effect, within the first proposition which I have mentioned, the case of a person not known to be an agent ; and not within the second, where the buyer is not merely known to be agent, but the name of his principal is also known." Mr. Justice Bayley added, " Where a purchase is made by an agent, the agent does not, of neces- sity, so contract as to make himself personally liable ; but he may do so. If he does make himself personally liable, it does not follow that the principal may not be liable also, subject to this qualifica,tion, that the principal shall not be prejudiced by being made personally liable, if the justice of the case is, that he should not be personally liable. If the principal has paid the agent, or if the state of accounts between the agent here and the principal would make it unjust that the seller should call on the principal, the fact of" payment, or such a state of accounts, would be an answer to the action brought by the seller, where he had looked to the responsibility of the agent. But the seller who knows who the principal is, and, instead of debiting that principal, debits the agent, is con- sidered, according to the authorities which have been referred to, as consenting to look to the agent only, and is thereby precluded from looking to the prin- cipal. But there are cases which establish this position, that, although he debits the a^ent, who has contracted in such a way as to make himself personally liable, yet, unless the seller does something to exonerate the principal, and to say that he will look to the agent only, he is at liberty to look to the principal, when that principal is discovered. In the present case, the seller knew that there was a principal ; but there is no authority to show, that mere knowledge that there is a principal destroys the right of the seller to look to that principal, as soon as he knows who that principal is, provided he did not know who he was at the time when the purchase was .originally made. It is said, that the seller ought to have asked the name of the principal, and charged him with the price of the goods. By omitting to do so, he might have lost his right to claim payment from the principal had the latter paid the agent, or had the State of the accounts between the principal and the agent been such, as to make it unjust that the former should be called upon to make the payment. But, in a case circumstanced as this case is, where it does not appear but that the man who has had the goods, has not paid for them, what is the justice of the case? That he should pay for them to the seller, or to the solvent agent, or to the estate of the insolvent agent, who has made no payment in respect of thes? goods. The justice of the case is, as it seems to me, all on one side; namely, that the seller shall be paid, and that the buyer (the principal) shall be the person to pay him, provided he has not paid anybody else. Now, upon the evi- dence, it appears that the defendant had the goods, and has not paid for them, either to M'Kune, or to the present plaintiffs, or to anybody else." See Paige V. Stone, 10 Met. 160. §§ 267, 268.] LIABILITIES TO THIED PERSONS. 323 on said receipt for the loss of the goods, although he was not agent for one of the companies over whose road he sent the goods, and although after their loss he verbally promised to pay for them.^] § 268. It is partly upon this ground, and partly upon the ground of general convenience and the usage of trade, that the general rule obtains, that agents or factors acting for merchants resident in a foreign country (as, for example, in Prance or Ger- many) are held personally liable upon all contracts made by them for their employers ; and this [it is sometimes said] without any distinction, whether they describe themselves in the contract as agents or not. In such cases, the ordinary presumption is, that ' [Lyon J). Williams, 5 Gray, 657. Dewey, J., said, "The case stated is clearly a case of agency, and that agency disclosed upon the face of the contract. Such being the case, the action for any breach of the contract should be brought against the principal. "No doubt, in many cases, the agent, by the recitals in the contract, and by the form of his signature to the contract, imposes upon himself the responsibility of the performance of the contract. But here the written contract is in direct terms that of others, and not of the defendant. ' The several railroad companies between Boston and Zanesville agree,' and the defendant signs ' for the corpora- tions.' The contract also limits the extent of the liability of each of the railroad corporations to its own line. • " But it is said that the names of these corporations are not stated. This is true ; but they are capable of being made certain by proper inquiry, and the plaintiif was content to take a contract thus generally designating the parties with whom the liability was to rest for the safe and proper conveyance of the goods. If we are correct in the view we have taken as to who are the parties to the contract, no difficulty arises as to the other points taken by the plaintiff. If the defendant, as servant of the railroad corporation which first received the goods, and whose duty it was to carry them safely to the line of the next rail- road company on the route and properly deliver them, has been guilty of any negligence in that respect, and has sent them forward on a wrong route, the proper party to be resorted to, in an action for damages for such negligence, is the principal, and not the agent. " There is no legal ground for charging the defendant upon any subsequent promise by him to pay the damages claimed by the plaintiff. There was no consideration for such promise ; and the statute of frauds also precludes any .such action, the promise not being in writing. Nor is it open to the plaintiff to show in the present action that of one of the railroad corporations, whose road composed a part of the route on which these goods were to be forwarded, the defendant was not a legally authorized agent. If any injury had resulted to the plaintiff from that cause, the proper remedy would be by an action of tort for false representation, or for acting without lawful authority from such railroad corporation in making the contract."] 324 AGENCY. [CH. X. credit is given to the agents or factors ; ^ and not only, that credit is given to the agents or factors, but that it is exclusively given them, to the exoneration of their employers.^ Still, however, this • Paley on Agency, by Lloyd, 248, 378, 382 ; BuUer, N. P. 130 ; De GaiUon V. L'Aigle, 1 Bos. & Pull, 858 ; Paterson v. Gandasequi, 15 East, 62 ; Thomp- son V. Davenport, 9 B. & Cressw. 78; Smith on Merc. Law, 76, 78 (2ded.); Id. ch. 6, § 5, pp. 134-136, 140, 141 (8d ed. 1843) ; Peterson v. Ayre, 13 Com. B. 353 ; 24 Eng. Law and Eq. 382 ; Smyth v. Anderson, 7 Com. B. 21 ; 2 Liverm. on Agency, 249 (ed. 1818). In Thompson v. Davenport, Lord Tenterden said, " There may be another case, and that is, where a British mer- chant is buying for a foreigner. According to the universal understanding of merchants, and of all persons in trade, the credit is then considered to the British buyer, and not to the foreigner. In this case, the buyers lived at Dum- fries ; and a question might have been raised for the consideration of the jury, whether, in consequence of their living at Dumfries, it may not have been under- stood among all persons at Liverpool, where there are great dealings with Scotch houses, that the plaintiffs had given credit to M'Kune only, and not to a person living, though not in a foreign country, yet in that part of the king's dominions, which rendered him not amenable to any process of our courts P But, instead of directing the attention of the recorder to any matter of that nature, the point insisted upon by the learned counsel at the trial was, that it ought to have been part of the direction to the jury, that, if they were satisfied the plaintiffs, at the time of the order being given, knew that M'Kune was buying goods for another, even though his principal might not be made known to them, they, by afterwards debiting M'Kune, had elected him for their debtor. The point, made by the defendant's counsel therefore, was, that if the plaintiffs knew that M'Kune was dealing with them as agent,, though they did not know the name of the principal, they could not turn round on him. The recorder thought otherwise ; he thought that, though they did know that M'Kune was buying as agent, yet, if they did not know who his principal really was, so as to be able to write him down as their debtor, the defendant was liable, and so he left the question to the jury ; and I think he did right in so doing." Bayley, J., added, "There may be a course of trade, by which the seller will be confined to the agent, who is buying, and not be at liberty at all to look to the principal. Generally speaking, that is the case, where an agent here buys for a house abroad. There may also have been evidence of a course of trade, applicable to an agent living here, act- ing for a firm resident in Scotland. But that does not appear to have been made a point in this case, and it is not included in the objection which is now made to the charge of the recorder." See Stackpole v. Arnold, 11 Mass. 27; Bradlee V. Boston Glass Manufactory, 16 Pick. 347, 350. In Taintor v. Prendergast, 8 Hill, 72, 73, Mr. Justice Cowen, in delivering the opinion of the court, said, "It may be admitted, as was urged in the argument, that, whether the principal '■' Ibid.; Post, § 400; Wilson v. Zulueta, 14 Q. B. 405; 2 Kent, Comm. , ect. 41, pp. 630, 631, note (b). See Gillett v. Oflfor, 18 C. B. 917. § 268.] LIABILITIES TO THIRD PERSONS. 325 presumption is liable to be rebutted, either by proofs that credit was given to both principal and agent, or to the principal only ; ^ or that the usage of trade does not extend to the particular case.^ be considered a foreigner or not, his agent, omitting to disclose his name, would be personally liable to an action. Even in case of a foreign principal, however, I apprehend, it would be too strong to say, that, when discovered, he would not be liable for the price of the commodity purchased by his agent. This may indeed be said, when a clear intent is shown to give an exclusive credit to the agent. I admit, that such intent may be inferred from the custom of trade, where the purchaser is known to live in a foreign country. No custom was shown or pretended in the case at bar ; and, where the parties reside in differ- ent states under the same confederation, this has been held essentially to exon- erate the principal. Thompson v. Davenport, 9 B. & Cressw. 78. It will be seen, by this case and others referred to by it, that the usual and decisive indi- cation of an exclusive credit is, where the creditor knows there is a foreign principal, but makes his charge in account against the agent. If the seller be kept in ignorance, that he is selling to an agent or factor, I am not aware of a case which denies a concurrent remedy. On the other hand, I am still in want of an authority, that, where an agent acquires rights in a course of dealing for Ms principal, whether the latter be foreign or domestic, and his name is kept secret, the principal may not sue to enforce those rights. I admit, that the defendant is not, by such form of action, to be cut oif from any equities he may have against the agent. So far, the latter is considered as the exclusive prin- cipal ; but no further. As a general rule, the latter cannot maintain an action in his own name at all ; and the exception will be found to arise from cases where he has the rights of bailee, or some other rights ; not the mere powers of a naked agent." But see 2 Kent, Comm. Lect. 41, p. 631, note (b), (ith ed.) ; Ante, § 155 ; Barkpatrick v. Stainer, 22 Wend. 244. In this last case, it seems to have been thought by Mr. Senator Verplanck, in the court of errors, that the doctrine was stated too strongly in the text of the first edition of this work. I confess myself not satisfied that there was any error in the original, text, which propounds the credit, in case of foreigners, to be an exclusive credit to the agent, as a matter of presumption, liable, indeed, to be rebutted; but still a presumption', which is to prevail in the absence of proof of any usage, or contract, to the contrary ; and the opinion of the learned chancellor (Walworth) inthe same case, fully sustains the position. The very case before the court of errors seems to have proceeded, in the court below, upon grounds certainly not very satisfactory ; for, assuming the foreign principals, in that case, to have been liable on the contract, it is very difficult to avoid the conclusion, that the agent had, by his mode of making the contract, also incurred a personal liability. Indeed, the case seems irreconcilable with the doctrine laid down in Higgins v. Senior, 8 Mees. & Wels. 834, 844 ; Post, § 270, and note. See also Smith on ' Ibid. ; Post, §§ 290, 350, 400, 423, 448 ; Trueman v. Loder, 11 Adolph. (feElUs, 589, 594, 696. , " Ibid. 326 AGENCY. [CH. X. [And probably the better rule is that the agent of a foreign prin- cipal is not, as a question of law, personally liable on every contract made for his principal. It is rather a question of fact Merc. Law, ch. 5, § 4, pp. 103-133 ; Id. § 7, pp. 140, 146 (3d ed. 1843) ; Post, § 270. In Taintor «. Prendergast, 3 Hill, 72, the supreme court of New York seems to have acted upon the doctrine, that if an agent of a foreigner makes a contract in his own name, without disclosing the name of his principal, the latter will be bound thereby, and liable thereon, although the agent may also be per- sonally liable. In that case, the contract was made in New York, on behalf of the principal living in Connecticut ; and it was said, that in such a case, there was no usage or custom of trade to deem it an exclusive credit to the agent. That circumstance may, perhaps, properly distinguish the case from that of a contract made on behalf of a known or unknown principal living in England, or France, or Germany. The same distinction was recognized in Thompson v. Davenport, 9 B. & Cressw. 78 ; and by Mr. Chancellor Walworth, in Kirk- patrick v. Stainer, 22 Wend. 254, 265. He there says, " Upon a careful examination of the law on this subject, I have therefore arrived at the conclusion,, that there is a well-settled distinction between the personal liability of an agent who contracts for the benefit of a domestic principal, and one who contracts for a principal who is domiciled in a foreign country. I do not think that, by our commercial usage, it is applicable to the case of a principal who is domiciled in another state of the union, as the interests of trade do not seem to require it. Besides, it does not appear to have been applied in England to the case of a principal residing in Scotland ; although in the case of Thompson v. Davenport, before referred to. Lord Tenterden supposed it might have been a proper sub- ject of inquiry for the jury, whether there was not a usage of trade at Liverpool, to give the credit to the agent where the principal resided in Scotland. So far as the law is settled on the subject, however, it only applies to a principal dom- iciled in a foreign country, or, in the language of the common law, ' beyond the seas.'" And again: "I see no difficulty in the form of the contract in this case, to bind the principals, and to relieve the agent from personal hability, if they had not been domiciled abroad. It is well settled, that in a commercial contract, not under seal, no particular form of words is necessary to bind the principal. Where the principal is known to the other party, and the contract is formally drawn up and signed by the parties, it should probably appear in some part of the contract that the agent is acting for some person other than himself; as he will be personally liable if he expressly contracts in his own name, without any reference to his character as agent, either in his signature, or in the body of the contract, although he was duly authorized to contract on behalf of his principal. . The true rule on this subject, I apprehend to be this, that where it appears from a contract, made by the agent for a domestic prin- cipal, that he was such agent, the presumption is that he meant to bind his principal only ; unless there is something in the contract from which it can be legally inferred that he meant to bind himself solely, or both himself and his principal, for the performance of the contract. On the contrary, if the contract is made on behalf of his foreign correspondent, wljo is domiciled abroad, the legal presumption is, that the ageVt meant to hold himself personally liable for §§ 268, 268 a.] liabilities to third persons. 327 in each case, a question of intention ; to be ascertained by the terms of the particular contract and the surrounding circum- stances.^ This is understood to be the rule now adopted in the United States court.^] . [§ 268 a. This presumption of credit being given alone to the agent, and not to the foreign principal, applies with the most force to purchases made by an agent for a foreign principal ; but where a written contract is made, and expressed to be with the foreign principal, and not with the agent, the latter is not liable, although the contract be signed by him, " for, and on account of," the foreign principal.^ So, where the contract is signed " A. B., by 0. D., agent, it does not bind the agent personally, although the principal resides beyond seas.*] the performance of the contraKit, unless from the terms of the contract it appears, that he meant to contract upon the credit of his foreign principal exclusively ; for the agent, in such a case, may be personally liable on the contract, although the principal is also bound." Mr. Senator Verplanck seems, in his opinion in the same 'case (pp. 262-264), to have recognized the distinction between for- eigners resident in England or France, and citizens resident in another state of this union. Post, § 400. Where credit is given to a foreign principal, who is known, and the agent represents him alone, there is no doubt that the pre- sumption of an exclusive credit to the agent is repelled. Trueman u. Loder, 11 Adolph. & Ellis, 589. ' Green v. Kopke, 36 Eng. Law and Eq. 396 ; 18 C. B. 549. And see Mahony v. Kekule, 14 C. B. 390; Wilson v. Zulueta, 14 Q. B. 405. ■' Oelricks v. Ford, 23 How. U. S. 49. [» Mahony v. Kekul^, 14 C. B. 390 ; 25 Eng. Law and Eq. 278. In that case the contract read thus : " Contract between Messrs. Vacher & Tilly, Morlaix, (France), and. Matthew Mahony, London. Matthew Mahony engages himself herewith with Messrs. Vacher «& Tilly, Morlaix, from the 1st of October, 1852, till the 31st of March, 1853, for the proJ)er and merchantable cutting, messing, and preparing of French provisions at Morlaix, as pork, beef, and bacon, on receiving a free passage out to Morlaix from London and back again, and wages of 30s. sterling per week. " Messrs. Vacher & Tilly finding the requisite tools. " Should any differences arise on account of Matthew Mahony's inability or improper conduct, this contract is to be considered null and void, and Matthew Mahony has no claim for further wages nor free passage back to London. . (Signed) for Vacher & Tilly, ' " Charles Kekulb. " Matthew Mahony." The contract may stipulate that the agent should not be bound, although the principal be not disclosed ; in which case he will not be liable. Oglesby V. Ygleseas, 1 Ellis Bl. & El. 930 ; Perderson v. Lotinga, 28 Law Times Rep. 267.] I* Bray v. Kettell, 1 Allen, 80 (1861). In that case, Bigelow, C. J., said, 328 AGENCY. [CH. X. § 269. In the next place, a person contracting as agent will be personally liable, whether he is known to be an agent or not, in all cases where he makes the contract in his own name, or "This action is brought to recover damages for a breach of a written con- tract of aiFreightment entered into by the defendants in behalf of one Charles D. Archibald, doing business under the name and style of the 'Albert Free- stone Quarries,' and executed by signing the same with the business name of their principal by themselves as agents. The only question in the case is,' whether the defendants can be held liable on this contract. " The plaintiff does not controvert the general rule of law, that an agent is not personally responsible upon an instrument executed in the name of his prin- cipal. But he rests his claim against the defendants upon the ground that the present case falls within a recognized exception to the rule, because the defend- ants acted, in making the contract, in behalf of a foreign principal, resident '.beyond seas.' It is certainly true that some of the earlier English cases seem to sanction the doctrine, that where an agent acts for a foreign principal, the presumption is that credit is given exclusively to the agent, and he only is hable on contracts entered into in the name and on behalf of his principal. Gon- zales V. Sladen, Bui. N. P. 130 ; De Gaillon v. L'Aigle, 1 B. & P. 868 ; Thom- son V. Davenport, 9 B. & Cressw. 87 ; Smyth v. Anderson, 7 C. B. 21. The same doctrine is stated in Paley on Agency (4th Amer. ed.), 248; 2 Liverm. on Agency, 249, and especially in Story on Agency, §§ 268, 290, where it is enunciated as a general rule that agents acting for merchants residing in a for- eign country are held personally liable on all contracts made by them for their employers, and this without any distinction whether they describe themselves in the contract as agents or not. We are inclined to think that a careful examina- tion of the cases which are cited in support of this supposed rule will show that this statement is altogether too broad and comprehensive. Certain it is, that if it ever was received as a correct exposition of the law, it has been essen- tially modified by the more recently adjudged cases. It doubtless had its origin in a custom or usage of trade existing in England, by which the domestic factor or agent was deemed to be the contracting party to whom credit was exclusively given ; and it was confined to cases where the claim against the agent was for goods sold, and was not extended to written instruments. But it is going quite too far to say that this usage or custom is so engrafted into the common law as to become a fixed and established rule, creating a presumption in all cases that the agent is exclusively liable, to the entire exoneration of his emJ)loyer. The more reasonable and correct doctrine is that, when goods are sold to a domestic agent or a contract is made by him, the fact that he acts for a foreign principal is evidence only that the agent and not the principal is Ua- ble. It is in reality, in all cases, a question to whom the credit was in fact given. Where goods are sold, it is certainly reasonable to suppose that the vendor trusted to the credit of a person residing in the same country with himself, subject to laws with which he is familiar, and to process for the imme- diate enforcement of a debt, rather than to a principal residing abroad, under a different system of laws, and beyond the jurisdiction of the domestic forum. But even in such a case, the fact that the principal is resident in a foreign coun- § 269. J LIABILITIES TO THIED PERSONS. 329 voluntarily Incurs a personal responsibility, either express or im- plied.^ Thus, for example, if an agent should buy goods for his principal, and by a written memorandum should acknowledge, try is only one circumstance entering into the question of credit and is liable to be controlled by other facts. So in the case of a written contract; it de- pends on the intention of the parties. But this, as in all other cases of written instruments, must be determined mainly by the terms of the contract. There may be cases where the language of the contract is ambiguous, and it is doubt- ful to whom the parties intended to give credit, in which the circumstance that the principal is resident abroad may be taken into consideration in determining the question of the liability of the agent. But where the terms of the contract are clear and unambiguous, it must be deemed the final repository of the in- tention of the parties ; and its construction and legal effect cannot be varied or changed by any reference to facts or circumstances affecting the convenience of the parties or the reasonableness of the contract into which they have entered. In such a case, therefore, it makes no difference whether the principal is a for- eigner or not. If by the language of the contract the agent and not the principal is bound, such must be its Construction ; and on the other hand, if it clearly binds the principal, and is in form a contract with him only, the agent must be exonerated, without regard to the fact that the principal is resident in a foreign country. This rule can work no hardship, because parties can in all cases make their contracts in such a form as to bind those to whom they intended to give credit. Mahony v. Kekul^, 14 C. B. 390 ; Green v. Kopke, 18 C. B. 549 ; Lennard v. Robinson, 5 El. & Bl. 125 ; Kirkpatrick v. Stainer, 22 Wend. 244 ; 2 Kent, Comm. (6th ed.) 631, note ; Paley on Agency (4th Amer. ed.), 248, note. "These principles are decisive of the case at bar. The written contract on which the plaintiif relies contains no words from which any intent to bind the defendants can be inferred. On the contrary, it is executed in the precise form required by law to bind the principal only and to exonerate the agent. The name under which the principal conducted his business is signed by the defend- ants as his agents. It would have been open to more question if the defendants had signed their own names for their principal ; but the contract is executed by the agents in the precise and technical form in which, by the strictest rule of law, it should be signed in order to bind the principal only. Story on Agency, § 163. There can be no doubt that if the principal resided in this country, he alone could have been sued on the contract. In like manner he only is re- sponsible, although a foreigner, because he is the sole party to it, and there is nothing to control the intent manifested by this mode of executing the contract. The defendants are in no sense parties to it, and are not liable in this action for damages occasioned by the neglect of their principal to comply with its terms."] ' Ante, §§ 147, 154, 156-159 ; 1 Stair, Inst, by Brodie, B. 1, tit. 12, §, 16 ; 3 Chitty on Com. & Manuf. 211 ; 2 Kent, Comm. Lect. 41, p. 630 (4th ed.) ; Id. 631 ; Jones v. Littledale, 6 Adolph. & Ellis, 486, 490 ; Hopkins v. Mehaf- fy, 11 Serg. & E. 129 ; Burrell v. Jones, 3 B. & Aid. 47 ; Iveson v. Coning- ton, 1 B. & Cressw. 160; Magee v. Atkinson, 2 Mees. & Wels. 440; Seaber 330 AGENCY. [CH. X. that the purchase was for his principal, and should promise to pay for them, he would be personally liable.^ So, if an agent selling goods should make out the memorandum of the sale, and the invoice of the goods, as bought of him, the agent, he would be personally liable for a failure to deliver. the goods.^ So, if an agent should retain an attorney for his principal, and should promise to pay him his fees, he would be personally liable.^ So, if an agent should, in his own name, but on behalf of his prin- cipal, enter into an agreement to execute a lease of lands of his principal, he would be held personally responsible for the execu- tion thereof.* So, if an agent should, in his own name, draw a bill of exchange on his principal for the debt of the latter, he would be personally responsible, as drawer, in case of the dis- honor of the bill, although upon the face of it the bill was drawn on account of his principal.^ So, if an agent should accept a bill V. Hawkes, 5 Moore & Payne, 549 ; Kirkpatrick v. Stainer, 22 Wend. 244, 254, 255 ; Taintor ». Prendergast, 8 Hill, 72 ; Simonds v. Heard, 23 Pick. 121 ; Higgins V. Senior, 8 Mees. & Wels. 836, 845; Mills v. Hunt, 20 Wend. 431; Newhall v. Dunlap, 2 Shepley, 180 ; Waring v. Mason, 18 Wend. 426 ; Collins V. Butts, 10 Wend. 399; Post, § 400. ' Alford V. Egglesfield, Dyer, 230 a; Paley on Agency, by Lloyd, 378, 379 ; Talbot v. Godbolt, Yelv. 137 ; 2 Liverm. on Agency, 249-251 (ed. 1818) ; 2 Kent, Comm. Lect. 41, pp. 629-631 (4tli ed) ; Story on Bills of Exchange, §76. ^ Jones V. Littledale, 6 Adolph. & Ellis, 486 ; Higgins v. Senior, 8 Mees. & Wels. 834 ; Post,^ § 270. ' Paley on Agency, by Lloyd, 878 ; Harvey v. French, Alleyn, 6. [* It seems, that a custom on the part of a class of agents, as attorneys, to pay charges incurred for the benefit of their known principals, will render the agents personally liable. Towle v. Hatch, 43 N. H. 270.] * Norton v. Herron, 1 Car. & Payne, 648; s. c. 1 Ryan & Mood. 229; Tanner u. Christian, 4 El. & Bl. 591 ; 29 Eng. Law and Eq. 103 ; Lennard e. Robinson, 32 Eng. Law and Eq. 127 ; 6 El. & Bl. 125 ; Cooke v. Wilson, 38 ib. 362 ; 1 J. Scott, n. s. 163 ; Ante, §§ 166-158. ' Bayley on Bills, ch. 2, § 7 (5th ed.) ; Leadbitter v. Farrow, cited ib., and 6 M. & Selw. 346 ; Lefevre v. Lloyd, 5 Taunt. 749 ; Mayhew v. Prince, 11 Mass. 54 ; Eaton v. Bell, 6 B. & Aid. 34 ; Goupy ». Harden, 7 Taunt. 159 ; Ante, §§ 166-157 ; Paley on Agency, by Lloyd, 379, 380 ; [Heubach «. Mollman, 2 Duer, 260. There is perhaps an exception, where the agent, with the assent of his principal, indorses the bill for the sole purpose of facilitating its collec- tion, on which ground probably the case of Ridson v. Dilworth, 5 Price, 564, proceeded ; lb.] And it seems, that, in such case, it would make no difference, if he signed his name " A. B., agent," if his principal was not named on the bill. Pentz v. Stanton, 10 Wend. 271 ; Ante, § 166. This also seems to be § 269.] LIABILITIES TO THIRD PERSONS. 331 in his own name whicli is drawn on ' him on account of his prin- cipal, he would be personally liable on his acceptance.^ So, if an agent should sign a note in his own name for the premium due upon a policy of insurance, underwritten for his principal, he woiild be personally responsible therefor.^ So, if an agent, em- ployed to sell goods for. his principal, should draw a bill on the purchaser in favor of his principal for the amount of the sale, he woiild be held personally liable to the latter, as drawer, iipon the dishonor of the bill,^ So, in such a case, if the agent should the rule in the law of the foreign continental nations. Emerigon lays it down that the agent, who contracts in his own name, is bound, notwithstanding his quality of agent is announced ; and he cites the passage from the Novels : Si autem dixerit fiet tibi satis aut a me, aut ab illo et illo, &c. ; ipsum autem, qui hoc promiserit, integrum quidem debitum cogi persolvere. Novell. 115, cap. 6, §4; 2 Emerig. Assur. ch. 4, § 12, pp.466, 467; Ante, § 262, note; Post, § 271. ' Bayley on Bills, oh. 2, § 7 (5th ed.) ; Thomas v. Bishop, 2 Str. 955 ; Ante, §§ 155-167, note. The case of Thomas v. Bishop, 2 Str. 955, would make one pause, as to the extent to which the doctrine should be carried. There, a bill was drawn on the defendant as follows : " At thirty days' sight, pay to J. S., or order, £200, value received of him, and place the same to account of the York Buildings Company, as per advice from Charles Mildmay. To Mr. Humphrey Bishop, cashier of the York Buildings Company, at their house, in Winchester-street, London." The defendant accepted it as follows : " Accepted, 13th June, 1832, per H. Bishop." The bill being dishonored when due, an action was brought against Bishop, personally ; and it was held, that he was personally liable on the acceptance. The only point of doubt is, whether a bill so drawn is not to be deemed as drawn on the cashier officially, and accepted by him officially, and therefore, as excluding a personal responsibility. Sup- pose a check, drawn on the cashier of a bank, as such, and accepted by him ; would he be personally responsible on the acceptance, or would the bank be responsible ? Drafts, drawn on, and accepted by, cashiers of banks, are usually treated as official transactions, and binding on the bank, and not merely on the cashier personally. Ante, §§ 166, 169, and note. In Shelton v. Darling, 2 Conn. 435, a bill was drawn on an agent, as follows : " A. B., agent of the Commission Company, ninety days after date, please to pay to our order, two thousand dollars, value received, and charge to account. Your obed't serv'ts, D. & C." On which there was an acceptance as follows: "Accepted, A. B., agent,5C. C." It was held, that A. B. was not personally liable thereon ; al- though it was proved, that he procured the bill to be drawn, and to be discounted for his own use. See also Mott v. Hicks, 1 Cowen, 613, cited ante, § 169, note ; Thomson on Bills of Exchange, pp. 228-230 (2d ed. 1836). And see Fuller v. Hooper, 3 Gray, 341. ' Stackpole v. Arnold, 11 Mass. 27. " Lefevre v. Lloyd, 5 Taunt. 749 ; Ante, §§ 156, 167, note. 332 AGENCY. [CH. X. remit his own note to the principal for the amount of the sale, he would be liable not only to third persons, but to the principal, for the amount.^ So, if an agent, employed to purchase bills for his principal, should have them made payable to himself or order, and should then indorse them and remit them to his principal, he would be liable thereOn to his principal, as well as to third persons, as indorser.^ The reason of each of these cases is the same ; that, from the form of the transaction, the agent has become a direct personal party to the contract, and his promise and liability are precisely the same as those of any other person drawing or indorsing or accepting a bill, or signing a note. It is perfectly competent, in point of law, for an agent, in any case, to make himself personally responsible for his principal, or to his principal ; and upon the just interpretation of the terms of the foregoing contract, and others of a like nature, such a responsi- bility is naturally, if not necessarily, implied.^ But it by no means is to be taken, as a natural or necessary conclusion, that, because the agent is personally bound, therefore the prin- cipal is exonerated ; for we shall presently see, that both may in many cases be equally bound, if not in form, at least in substance, by the contract, so that a suit may be brought by or against either of them.^ ' Simpson v. Swan, 3 Campb. 291. But see Sharp v. Emmet, 5 Whart. 288 ; Ante, § 157, and note. " Goupy V. Harden, 7 Taunt. 169. See ante, §§ 166, 167 ; Sharp ». Emmet, 5 Whart. 288. ^ Lefevre v. Lloyd, 6 Taunt. 749 ; Lucas v. Groning, 7 Taunt. 164 ; Goupy V. Harden, 7 Taunt. 159 ; Paley on Agency, by Lloyd, 43 ; Simpson v. Swan, 3 Campb. 291 ; Ante, §§ 155-168, 161, 162 ; Thomson on Bills, pp. 228, 270 (2d ed. 1836). ■■ Ante, §§ 161, 162, note ; Post, §§ 270, 272-280, 446 ; Allen v. Coit, 6 Hill, 318 ; Rogers v. Coit, 6 Hill, 822. It seems, however, to have been assumed, and in some instances actually decided, that where a contract is made with an agent acting and known as such, he cannot maintain any action thereon, al- though he is in terms the promisee, but that the suit must be brought in the name of the principal. Gilmore v. Pope, 6 Mass. 491 ; Taunton and South Boston Turnpike v. "Whiting, 10 Mass. 327, 336, and the cases cited; Post, § 396. Indeed, it has been laid down as a general rule, that, where the agent has no interest in the contract, he cannot sue thereon, although the promise is made to him ; but that his principal alone can sue. The Town of Garland v. Reynolds, 2 Appleton, 46 ; Irish v. Webster, 5 Greenl. 171 ; Taintor v. Pren- dergast, 3 Hill, 72 ; Piggott v. Thompson, 3 Bos. & Pull. 147 ; Gunn v. Cantine, 10 John. 387. But it admits of the most serious question, whether this doctrine §§ 269, 270.] LIABILITIES TO THIED PERSONS. 333 § 270. The general doctrine, as to the liability of agents, may- be further illustrated in cases, where there is a written contract, purporting to be made between one person, as buyer, and another as seller. Thus, for example, if an invoice, or a sold note, should describe the goods sold, as " bought of A. B.," the agent, as seller, and it should be signed by him, he would be held to be an immediate party to the contract, and liable as such, for the delivery of the goods to the buyer, notwithstanding he might have sold the goods, as the agent of the owner, and have made known that fact to the buyer before or at the time of the sale.^ For, if the agent contracts in such a form as to make himself per- sonally responsible, he cannot afterwards, whether his principal be, or be not known, at the time of the contract, relieve himself from that responsibility. And in the case put, by the very form of the contract, the agent represents himself to be the seller, and thereby, as between himself and the buyer, he binds liimself by that representation, as a contracting party .^ But, althotigh the agent may thus bind himself personally ; yet this by no means shows, that the principal may not also be bound, as a party to tlie contract, through his agent ; for there is no doubt, that parol evi- dence is admissible, on behalf of one of the contracting parties, to show that the other was an agent only in the sale, although contracting in his own name, so as to fix the real principal.^ It is maintainable upon principle, or is consistent with many other well-considered authorities. See post, §§ 394-400 ; Fisher v. Ellis, 3 Pick. 321 ; Fairfield v. Adams, 16 Pick. 381. See also post, § 394, and cases there cited, and post, § 396, and cases there cited, which it seems difficult entirely to reconcile with each other. ' Ante, § 269. ' Jones V. Littledale, 6 Adolph. & Ellis, 486 ; Ante, §§ 166-161 ; Higgins v. Senior, 8 Mees. & Wels. 844 ; Magee v. Atkinson, 2 Mees. & Wels. 440. ' Jones o. Littledale, 6 Adolph. & Ellis, 486; Keanu. Davis, 1 Spencer, 426; Wilson V. Bailey, 1 Handy (Ohio), 177 ; Moore v. Clementson, 2 Campb. 22 ; Ante, §§ 161-168, 269 ; Post, § 446 ; Beebe v. Roberts, 12 Wend. 413 ; Hig- gins V. Bellinger, 22 Mo. 399 ; Higgins v. Senior, 8 Mees. & Wels. 440. Mr. Baron Parke, in delivering the opinion of the court in this last case, said, " The question in this case, which was argued before us in the course of the last term, may be stated to be, whether, in an action or an agreement in writing, purporting on the face of it to be made by the defendant, and subscribed by him, for the sale and delivery by him of goods above the value of £10, it is competent for the defendant to discharge himself, on an issue on the plea of non-assumpsit, by proving, that the agreement was really made by him by the authority of, and as agent for, a third person, and that the plaintiff knew those 334 AGENCY. [CH. X. has been well observed, that, in cases of this sort, the liability of the principal depends upon the act done ; and not merely upon the form in which it is executed. If the agent is clothed with facts, at the time when the agreement was made and signed. Upon consideration we think, that it was not ; and that the rule for a new trial must be discharged. There is no doubt, that, where such an agreement is made, 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 contract, so as to give the benefit of the contract, on the one hand, to, and charge with liabilityj on the other, the unnamed principals ; and this, whether the agreement be or be not required to be in writing by the statute of frauds ; and this evidence in no way contradicts the written agreement. It does not deny, that it is binding on those, whom, on the face of it, it purports to bind ; but shows, that it also binds another, by reason, that the act of the agent, in signing the agreement, in pursuance of his authority, is, in law, the act of the principal. But, on the other hand, to allow evidence to be given, .that the party, who appears on the face of the instrument to be personally a contracting party, is not such, would be to allow parol evi- dence to contradict the written ^.greement ; which cannot be done. And this view of the law accords with the decisions, not merely as to bills of exchange, signed by a person, without stating his agency on the face of the bill; but as to other written contracts ; namely, the cases of Jones v. Littledale, and Magee V. Atkinson. It is true, that the case of Jones v. Littledale might be supported on the ground, that the agent really intended to contract as principal. But Lord Denman, in delivering the judgment of the court, lays down this as a gen- eral proposition, ' that, if the agent contracts in such a form, as to make himself personally responsible, he cannot afterwards, whether his principal were or were not known at the time of the contract, relieve himself from that responsibility.' And this is also laid -down in Story on Agency, § 269. Magee v. Atkinson is a direct authority, and cannot be distinguished from this case." Trueman v. Loder, 11 Adolph. & Ellis, 689. Mr. Smith, in his Leading Cases, Vol. 2, p. 226, note to the case of Thomson v. Davenport, says, " The next propo- sition, above submitted is, that parol evidence, that the person who has signed as principal, was in reality an agent, ought not to be excluded, when the purpose, for which it is offered, is that of charging the principal with the contract. The principle, on which it is submitted, that this depends, is adverted to in the text of Paterson v. Gandasequi, which states, that ' it was moved to set aside the nonsuit, on the ground of assimilating this case of a dormant principal to that of a dormant partner, where, though the person, furnishing goods to the ostensible partners, intended, at the time, to give credit only to them, yet be may afterwards pursue his remedy against the dormant partner, when discov- ered.' And this, it is submitted, is the true principle. A dormant partner is sued on the ground of agency ; he is liable on a contract relating to the firm, made in the ostensible partner's name alone, because he is taken to have adopted the name of the ostensible partner as his own, for the purpose of such contracts. So that, when the ostensible partner signs his name to such contracts, he signs a word, the meaning of which comprehends not himself alone, but his partner also. It is, in fact, a question of signification. A. and B. trade under the § 270.] LIABILITIES TO THIED PERSONS. ' 335 the proper authority, his acts bind the principal, although exe- cuted in his own name. The only difference is, that, where the agent contracts in his own name, he adds his own personal responsibility to that of the principal, who has employed him.^ name of ' A.' ; the name ' A.,' therefore, when used in a contract relating to such trade, means 'A. & B.' ; and to show that it has such meaning, parol evi- dence is admissible, but admissible only for the purpose of charging B. ; for De Mautort v. Saunders, 1 B. & Adolph. 398, decides, that it cannot be ad- mitted to discharge the ostensible partner. Now, if B. may contract jointly with A., under the name of A., and employ A. to sign it, there is no reason why he should not contract individually in the same way ; and, if he may do so, then parol evidence must be admissible to show that A., being his agent, so contracted for him. This view will be, it is submitted, borne out by an exam- ination of the authorities. In Paterson v. Gandasequi, the order for the goods, for which the action was brought, was in writing, signed only by Larrazabel & Co. ; no objection was made to the admissibility of the parol evidence. In Thomson v. Davenport, Railton v. Peele, and Railton v. Hodson, the invoices, which appear to have contained the terms of the contracts, were made out to the respective agents. The case of Short v. Spackman, 2 B. & Adolph. 962, has considerable bea:ring on these points. The plaintiffs, being employed by Hudson to buy oils, employed one Bentley to effect a purchase for them ; Bent- ley applied to- the defendants, who refused to sell to the plaintiffs, but, being informed they had a principal, consented, and made out the bought and sold notes to the plaintiffs, as principals. Hudson refused to ratify the purchase, on which the plaintiffs took it for their own benefit, demanded the oils', and brought an action against the defendants for not delivering them. It was objected, that the defendants had expressly refused to deal with the plaintiffs as principals. The form of the written contract (the bought and sold notes) in which they appeared as principals, was, however, held to entitle them to sue ; and Parke, J., in his judgment, says, 'It is found, that the plaintiffs were authorized by Hudson to buy oil of the defendants, and the contract was binding both on them, and, if the defendants chose to enforce it, on Hudson.' It is for the above dictum of Parke, J., that Shorts. Spackman is cited; the decision of the case turns, as will be perceived, upon the right of the agent to sue upon the contract in his own name. That an agent, who has made a contract in his own name for an undisclosed principal, may sue on it in his own name, is established by several cases, particularly the late one of Sims v. Bond, 5 B. & Adolph. 893. ' It is,' said the Lord Chief Justice, delivering the judgment of the court in that case, after a cur. adv. vult., a 'well-established rule of law. ' Per Mr. Justice Porter, in Hopkins v. Lacoutre, 4 Miller, La. 64 ; Me- chanics' Bank v. Bank of Columbia, 6 Wheat. 326 ; Hyde v. Wolff, 4 Miller, La. 234 ; S. P. Pothier on Oblig. by Evans, xi. 82, 447, 448 ; Bowen v. Morris, 2 Taunt. 374, 387 ; Lisset v. Reave, 2 Atk. 394 ; Beebe v. Roberts, 12 Wend. 418; Ante, §§ 160, 161; Higgins v. Senior, 8 Mees. & Wels. 844. 336 AGENCY. [CH. X, § 271. The Roman law, as we have already seen', carried the responsibility of an agent, contracting in his own name, although for the benefit of his principal, somewhat further ; for, in all such contracts, he was, ordinarily, deemed to be the primfiry and sole contracting party, until the prsetor gave the institorial and exer- citorial actions. 1 But the modern nations of Europe, which have adopted the Roman law as the basis of their jurisprudence, have followed out the principles of our law, by exempting the agent from liability when he has contracted solely in the name of his that, where a contract not under seal is made by an agent in his own name for an undisclosed principal, either the agent or the principal may sue on it ; the defendant, in the latter case, being entitled to be placed in the same situation, at the time of the disclosure of the real principal, as if the agent had been the contracting party. This rule is most frequently acted on in sales by factors, agents, or partners, in which cases either the nominal or real contractor may sue. But it may be equally applied to other cases.' See also Alexander v. Barker, 2 Tyrwh. 146 ; Sims v. Britain, 4 B. & Adolph. 375 ; Bastable v. Poole, 6 Tyrwh. 111. Now, as far as the admissibility of the parol evidence to qualify the written contract is concerned, there is as much objection to letting it in for the purpose of enabling the principal, not named in the contract itself, to sue, as for the purpose of rendering him liable to be sued. But the true rule, it is submitted, is, that the parol evidence is admissible for the purpose of introducing a new party, but never for that of discharging an apparent party to the contract. See this laid down in Jones v. Littledale, 5 Adolph. & Ellis, 486, and, in the judgment of the court of exchequer, in Simpson v. Higgins, ubi sup. The point was mooted, but not decided, in Graham v. Mussen, 5 Bing. (N. C.) 603, where the court held, that the buyer did not, by request- ing the seller's agent to write a note of the contract in his (the buyer's) book, constitute him his agent for the purpose of signing his name, so as to render the entry a note in writing within the statute of frauds." But see Stackpole ». Arnold, 11 Mass. 27, 29; Bradlee v. Boston Glass Co. 16 Pick. 347; Ante, §§ 147, 164, 155, 160, 161 ; Post, §§ 275-280 ; 2 Kent, Comm. Lect. 41, pp. 630,,631 (4th ed.) ; Hopkins v. Lacouture, 4 La. 64; Hays v. Lynn, 7 Watts, 624 ; Muldon v. Whitlock, 1 Cowen, 290 ; Porter v. Talcott, 1 Gowen, 359 ; Waring v. Mason, 18 Wend. 425 ; Mills «. Hunt, 20 Wend. 431 ; Sullivan v. Campbell, 2 Hill, 271. It is difficult, if not impracticable, to reconcile the language of all the authorities on this subject, as may be seen in note to ante, § 147. For example, it was held, in Minard u. Reed, 7 Wend. 68, that a note, executed by a wife in her own name, will not bind her husband, if it does not purport to be made for him, either in the body of the note, or in the signature by her as agent, although she has authority from her husband to give notes to bind him. [But the contrary has since been held in England, in Lindus v. Bradwell, 5 Com. B. 588.] See also Spencer v. Field, 10 Wend. 87. 1 Ante, §§ 88, 161-163; Post, §§ 425, 426; Dig. Lib. 14, tit. 1, 1. 1; W. tit. 8, 1. 1 ; 2 Liverm. on Agency, 247, 248 ; Id. 253, 254 (ed. 1818) ; Hop- kins V. Lacouture, 4 Miller, La. 64. §§ 271, 272.] LIABILITIES TO THIRD PERSONS. 337 principal; and by fixing a personal liability upon him, when, although known and described as an agent, he yet has contracted in his own name.^ Thus, Bmerigon lays down the rule and the exception in the following broad terms : " According to the gen- eral rule (says he), the agent, who promises or stipulates, or acts in his quality or character, as agent, is not personally bound (en son nom propre). He is a simple agent or instrument (II est simple ministre et ex^cuteur). He is held to nothing more than to exhibit his authority. But, if he contracts in his own name, he is bound, without distinction, to the third person with whom he contracts ; because such third person is ignorant of his quality or character, as agent, and he is presumed rather to act for him- self than for another. " Potius meo nomine, quam pro alio." ^ § 272. One of the most common instances of the application of this doctrine of the personal liability of agents who contract in their own name, and yet avowedly for their employers, is to be found in cases of policies of insurance, procured to be under- written by agents for their principals. In the common form of such policies, the agent (A. B.), in his own name, causes himself to be insured for his principal (0. D.) or for whom it may concern, &c. In such cases, the agent is deemed an immediate party, although not the sole contracting party. He is liable for the premium ; he may sue and be sued on the policy ; and the underwriters and himself become reciprocally' parties to the policy, and incur the mutual obligations consequent thereon.^ Emerigon has doubted, whether, upon principle, the agent in such a case, if he acts in his quality of agent, ought to be personally liable. But he admits that tlae universal usage is the other way ; and that it has the sanction of judicial decisions.* It is certainly ' Pothier on Oblig. by Evans, n. 74, 76, 82, 447, 448 ; 1 Emerig. Assur. ch. 6, § 3, p. 137 ; 1 Stair, Inst, by Brodie, B. 1, tit. 12, § 16 ; Ersk. Inst. B. 3, tit. 3, §§ 45, 46 ; 2 Emerig. Assur. ch. 4, § 12, p. 465 ; 2 Liverm. on Agency, 253, 254 (edit. 1818). " Emerig. Assur. Tom. 2, ch. 4, § 12, p. 465 ; Ante, § 262, note, 269, note. ' 1 Emerig. Assur. ch. 5, § 4, pp. 139, 140; Marsh, on Insur. B. 1, ch. 8, § 2, pp. 292-296 ; Id. B. 1, ch. 16, § 2, p. 683 ; 1 Phillips on Insur. ch. 22, pp. 519, 523, 524; Ante, §§ 109, 111, 161 ; Post, 394, 498. See Stackpole v. Ar- nold, 11 Mass. 27; 2 Valin, Comm. Liv. 3, tit. 6, art. 8, p. 34; Pothier, Traits d' Assur. n. 96 ; Garrett v. Hahdley,.4 B. & Cressw. 666, by Bayley, J. * 1 Emerig. ch. 5, § 3, pp. 137, 138 ; Id. § 4, pp. 139-141 ; Pothier, Traits d'Assur. n. 96 ; 2 Valin, Liv. 3, tit, 6, art. 3, pp. 132, 133 ; 2 Liverm. on Agency, 247, 248, 253, 256 (edit. 1818) ; Ante, § 269 and notes. ASEIfCY. 22 338 AGENCY. [CH. X. entirely well settled in the English and American law ; and it seems to be a reasonable interpretation of the terms and objects of the instrument.^ § 273. A fortiori, the same doctrine applies to cases, where the instrument is under seal, and purports to be, not the deed of the principal, but the deed of the agent.^ In such cases, as we have already seen, although the party describes himself as agent of another ; yet, as the instrument cannot be deemed the deed of the principal, it would be utterly without any legal effect, unless it was construed to be the deed of the agent ; ^ and, therefore, " ut res magis valeat, quam pereat," the interpretation is adopted, that it is the intention of the parties, that the agent shall be bound for the principal ; for the law will not impute to the parties an intention to do a void act ; much less will it, for such a pur- pose, allow the words of the instrument to be strained out of the ordinary meaning attached to them. The words, therefore, which touch the character of the agent, are treated as merely words of description, as a mere designation of the person, by whose authority and for whose benefit he is acting ; and not as intended to exclude a personal responsibility. In this way the whole instrument may have a sensible effect according to the import of the words in their ordinary signification and connection.* • ' Marsh, on Insur. B. 1, ch. 8, § 2, pp. 292-296 ; Id. B. 1, ch. 16, § 2, p. 683; 1 Phillips on Insur. ch. 22, pp. 519, 523, 524; 1 Emerig. Assur. ch. 6, § 3, pp. 137, 138 ; Id. § 4, pp. 139, 140 ; 2 Emerig. Assur. ch. 4, § 12, p. 467. ^ Ante, §§ 147-160, 155-157, 161; Post, §§ 276-278, 422, 450; Meyer v. Barker, 6 Binn. 228, 234; Stone v. Wood, 7 Cowen, 453. ' Ante, §§ 147-150, 152, 154-156 ; Post, §§ 277, 278. ■* Ante, §§ 148-158, 161, 266-269 ; Post, §§ 280, 281 ; Appleton v. Binks, East, 148 ; Abbott on Shipp. Pt. 3, ch. 1, § 2 ; Duvall v. Craig, 2 Wheat. 45; 3 Chitty on Com. & Manuf. 211, 212 ; Kennedy v. Gouveia, 3 Dow. & Byl. 503; 2Liverm. on Agency, 249-252 (ed 1818); White v. Skinner, 13 John. 307 ; Sumner v. Williams, 8 Mass. 198; Stone v. Wood, 7 Cowen, 453; Tip- pets v. Walker, 4 Mass. 595 ; Hopkins u. Mehaffy, 11 Serg. & K. 126 ; Meyer V. Barker, 6 Binn. 234. In Hopkins v. Mehaflfy, 11 Serg. & R. 126, 129, there was a sealed agreement, purporting to be between a corporation, by its corporate name, of the one part, and the plaintiff, of the other part; it was signed by the president of the corporation, with his own seal, and the president was afterwards sued thereon. The court held him not personally liable on the in- strument, even if he had not authority to execute it for the corporation. On that occasion Mr. Justice Gibson, in delivering the opinion of the court, said, "In general, it is true, that there is a distinction between contracts, that are entered into on the part of government by its agents, and those which are entered into §§ 272-274.J LIABILITIES TO THIRD PERSONS, 339 § 274. In the preceding cases, the agent is held personally lia- ble upon the contract, because he is a direct party to it, although he is acting for his employer ; and the contract is treated as his on the part of individuals, or corporations, by those who represent them. In respect of the first, it may safely be asserted, that, whether the contract be by parol, or by deed, the public faith is exclusively relied on, whenever the agent does not specially render himself liable. In respect of the second, where the contract is by parol, the agent is liable only where he had no authority to bind his principal ; but the agent of an individual or corporation, covenanting, under his seal, for the act of his principal, although he describe himself as contracting for and on behalf of his principal, is liable on his express covenant, whether he had the authority of the person, whom he thus professes to bind, or not. The law is thus broadly laid down by Mr. Chitty, in his Treatise on Pleading, page 24, and the authorities which he cites, fully bear him out ; to which may be added Tippetts v. Walker, 4 Mass. 696. It is somewhat remarkable, that the distinction between a parol and a sealed contract was not taken in Randall v. Van Vechten, 19 John. 60, and that the authorities, cited to prove, that an agent, who personally covenants in behalf of his principal, is liable only in the event of there being no recourse to the principal, directly prove the reverse. There is a class of cases referred to, which have nothing to do with the ques- tion. I mean those cases where the defendant undertakes to covenant for others, as well as himself; and there it is settled, that if he has no authority to bind the others, he is nevertheless bound himself; not that he incurs an event- ual liability, in consequence of the others being discharged, but he remains bound as he was originally, the instrument being his several deed. It is unne- cessary, therefore, to inquire whether the plaintiff might have an action of assumpsit against the principal, in consequence of the existence of a parol authority to the agent to enter into the contract, because, whether he "may or not, the agent is liable on his express covenant. But there is a striking and substantial difference between the covenant of an agent, who describes himself as contracting for his principal, and the covenant of a principal, through the means and by the instrumentality of an agent. The first is the individual covenant of the agent, the second is the individual covenant of the principal ; and, in this respect, the case at bar differs from Randal v. Van Vechten, in which the distinction seems not to have been adverted to. No decision can be found in support. of the position, that what appears on the face of the deed to be the proper.covenant of the principal, but entered into through the agency of an attorney (which, by the by, is the legitimate form of the instrument, where the attorney is not to be boUnd), shall be taken to be the proper covenant of the attorney, wherever he had not authority to execute the deed. How could he be declared against ? If, in the usual and proper manner of pleading, it were alleged, that the agent had covenanted, it would appear by the production . of the instrument, that he had not, but that his principal had covenanted through his means ; which, on non est factum being pleaded, would be fatal. This is precisely the case before us, except that it is not quite so strong. In the body of the instrument the covenants are stated, as if they were made by the corpo- 340 AGENCY. [CH. X. own express contract. But the liability of an agent may also arise, by implication, from his own acts, with reference to a writ- ten contract, to which he is not originally a party. By the com- mon form of a bill of lading, the goods are deliverable to the consignee, or his assigns, or to the shipper, or his assigns, he or they paying freight therefor ; and upon the construction of the instrument, it has been held, that whoever receives the goods under the bill of lading, as consignee, or assignee, contracts by implication to pay the freight due on them.^ Therefore, if the shipper, or the consignee, in such a case, should indorse the bill of lading to his agent, whether known to be an agent or not, the latter would be liable to pay the freight, if he took the goods iipon the consignment under the bill of lading ; ^ unless, indeed, it should appear upon the face of the consignment or indorse- ment, that it was made to him as agent merely, or the other cir- ration directly with the plaintiff, without the agency of any one, the defendant not being named, but merely signing and sealing it with his own seal, as the deed of the corporation, which, I readily admit, it is not. Now, to avoid the difficulty, which I have just mentioned, the plaintiff, in declaring, does not, in the usual way, set forth the substance of the covenants, but alleges that, by certain articles of agreement between the parties, it was covenanted 'as fol- lows ; ' and then sets out the articles according to their tenor, assigning for breach, that the defendant had not paid, &c. A demurrer would unquestion- ably have answered the purpose as well as the plea of non est factum ; for the declaration sets forth no covenant of the defendant, and consequently no cause of action. But the paper is not the defendant's deed. He sealed and delivered it, undoubtedly ; but there is something more than sealing and delivery neces- sary to a deed. It ought to contain the proper parts of a contract ; and in this instrument there are no obligatory words, applicable to the person of the defendant. Even the sealing and delivery were (by the party) as the president, and in behalf of the corporation. If the defendant had authority to contract for the corporation, although he has done so informally, there cannot be a doubt that, as the work has been done, the plaintiff may have an action of some sort against it. But he never treated on the basis of the defendant being personally answerable ; and to permit him to maintain this action, would permit him to have, what was not in the contemplation of either party, recourse to the persoa of the agent. I am, therefore, of opinion, that the Judge who tried the cause, was right in directing the jury, that the paper, given in evidence, was not the deed of the defendant." Ante, § 164 and note. ' Cock V. Taylor, 13 East, 399 ; Dougal v. Kemble, 3 Bing. 386 ; Abott on Shipp. Ft. 3, ch. 7, § 4, p. 285 (ed. 1829) ; Wilson v. Keymer, 1 M. & Selw. 157. « Ibid. ; Bell v. Kymer, 5 Taunt. 477 ; Evans v. Marlett, or Martel» 3 Salk. 290 ; Post, § 895 and note. § 274.J LIABILITIES TO TfflRD PERSONS. 341 cumstances of the case should show, that no credit was given to him for the freight.^ [But a mere naked consignment to an agent does not make him liable for the freight, when the agency ' It is not easy, perhaps, to reconcile the language of all the cases on this point. Cock v. Taylor, 13 East, 399, shows, that a purchaser, under the bill of lading from the consignee, is liable for the freight ; and Wilson v. Keymer, 1 M. & Selw. 157, and Bell v. Kymer, 5 Taunt. 477, and Dougal v. Kemble, 3 Bing. 383, that an agent, consignee, or Indorsee, is also liable, if the bill of lading contains a consignment, or indorsement to him generally, without saying, that he is agent. In this last case, Mr. Chief Justice Best said, " It has been insisted on the part of the defendants, that the verdict of the plaintiff is incon- sistent with the law of England, because the contract, on the bill of lading, is with the shipper, or Le Cointe & Co., and that the liability of these parties cannot be transferred to the defendants. But this argument is founded on an inaccurate statement of the terms of the bills of lading. Neither the shipper, nor Le Cointe & Co., agree by these instruments to pay the freight. These are receipts for the goods, with an undertaking, on the part of the captain, that he will dehver them to the legal holder of these bills, on such holder's paying the freight. The captain has a lien for the freight against whoever shall become the owner of the goods. The owner could not compel the captain to deliver the goods from his actual possession, without paying the freight. The act for regulating the West India Docks continues the lien for freight, whilst goods, delivered from a ship, and liable to freight, remain in those docks. Whoever obtains the delivery of goods, under such a bill of lading, contracts, by impli- cation, to pay the freight due on them. There is no assignment of contract, no shifting of liability. The receiver of the goods is an original contractor to pay the freight on them. With respect to the alleged hardship on brokers, they know the terms of the bill under which they claim ; they know what freight is due, and they need not make advances beyond the value of the goods, subject to freight. The hardship on the ship-owner would be much greater, if, after having brought the goods to England, he should not be entitled to recover freight from the parties who possess them under the bill of lading. Cock v. Taylor is expressly in point for the plaintiff. It has been attempted to dis- tinguish that case from the present by the circumstance, that the plaintiff, in that case, had made no application to the consignee before applying to the defendant, and that the defendant was there a purchaser of the bill of lading. With respect to the application to the consignees, it was made, when the plain- tiff supposed them to be the holders of the bills of lading. The moment the plaintiff discovered that the bills of lading had been transferred to the defend- ants, he applied also to them ; and a man is not bound by what he does, in ignorance of the actual circumstances of his case. As to the circumstance of the defendant in Cock v. Taylor being a purchaser of the bill of lading, the effect of that is got rid of by Bell v. Kymer, in which the defendant was only a broker, and in which Gibbs, C, J., said, 'The holders of a bill of lading were bound to know that they were liable for the freight.' That decision is not touched by any subsequent case, for Wilson v. Keymer turned on a different point ; and every Judge, in that case, confirmed the decision in Cock v. Taylor. 342 AGENCY. [CH. X. is known, and there is no stipulation that the consignee shall pay freight.^] § 274 a. But although, in general, an agent who contracts in In Wilson v. Keymer the defendants did not obtain the goods under the bill of lading, but under the order of the consignees. In Moorsom ». Kymer, the inference of an implied contract was repelled by the existence of a special con- tract under a charter-party ; and Le Blanc, J., said, ' The law will not raise an implied promise, where there is an express agreement between the parties.' But he also said, ' Where the ship is a general ship, and there is no other to whom the party can resort, the law will imply a promise to prevent a failure of justice.' There would be a failure of justice, if such a promise were not im- plied in the present instance." See also Scaife v. Tobin, 3 B. & Adolph. 523^; Coleman u. Lambert, 5 Mees. & Wels. 502 ; Tobin v. Crawford, id. 235. In the case of Amos v. Temperley, 8 Mees. & Wels. 798, where, by the bill of lad- [> Boston & Maine Railroad ». Whitcher, 1 Allen, 497 (1861). Bigelow, C. J., there said, " The cases in which an agent has been held liable to paythe freight of goods consigned to him, proceed on the ground that, by the terms of bills of lading, as 'usually drawn, especially in cases of transportation by water, the consignee is to pay the freight. In other words, the carrier under- takes to deliver the property to the consignee, ' he paying freight for the same.' Whoever accepts delivery under such a bill of lading, contracts, by implication, to pay the freight due on them ; and if the name of the agent only is inserted in the bill, without any designation of the character or capacity as agent for another in which he receives the goods, he is liable individually for the freight, because he thereby becomes an original contractor to pay therefor. These cases rest on the principle, that he who accepts a thing which he knows to be subject to a duty or charge, for which he is expected to pay, thereby contracts, by implication, to take the duty or charge on himself Cock v. Taylor, 13 East, 399 ; Wilson v. Keyraer, 1 M. & Selw. 157 ; Dougal v. Kemble, 3 Bing. 383 ; Amos v. Temperley, 8 Mees. & Wels. 798. But no case can be found which goes the length of holding, that an agent is liable for the freight of goods sent to, and received by him, when his agency is known to the carrier at the time of the delivery of the goods, and when there is no stipulation in the con- tract of transportation by which the consignee is to pay the freight. In such a case, the essential elements of a contract are wanting. There is nothing from which an intent on the part of the shipper or carrier to charge the agent, or an agreement by the agent to pay the freight, can be inferred."] [ * The con- signee named in a ship's papers is not liable for the payment of duties on goods burned in a public store, which were sent and left there on account of their not having been claimed and permitted by the importer or consignee. One cannot be made the consignee of goods without accepting the consignment ; and the government acquires no rights against him as virtual importer, for the duties, if he chooses to renounce that character, and refuses to have any thing to do with the goods. Du Puirat v. Wolfe, 29 N. Y. 436.] §§ 274, 274 a.] liabilities to third persons. 343 writing in his own name, even avowedly as agent of another, is thus personally responsible upon the agreement so made by him, whether it be under seal or not ; and it will be treated as his personal obligation and contract ; yet it does not necessarily fol- low, that if the principal is not bound thereby, the covenant or contract can in all cases be enforced by or against the agent per- sonally. For if, from the nature and objects of the agreement, whether under seal or not, it can be collected, that a reciprocal obligation is intended to be created, and yet, under the circum- ing, the goods were " deliverable to A., for the London Gas Company, or his assigns. Tie or fhey paying freight for the said goods," and A. received the goods under the bill of lading, it was held that A. was not personally liable for the freight; inasmuch as, on the face of the bill of lading, he was a mere agent to receive the goods for the company, the property vesting in them. On that oc- casion, Mr. Baron Parke, in delivering the opinion of the court, said, "The case of Cock c. Taylor established the proposition, that the receipt of goods by the indorsee of a bill of lading, by which they were made deliverable to the consignee or his assigns, he or they paying the freight, was evidence of a new contract between him and the ship-owner to pay the freight according to the terms of the bill of lading; and that case has been followed by many others. But here the defendant is, on the face of the bill of lading, a mere agent, to re- ceive the goods, the London Gas Company being the consignees, and the prop- erty vesting in them, according to the rule laid down by Lord Holt, in the case of Evans u. Marlett ; and the promise to be inferred from the receipt of the goods, under such a bill of lading, is prima fade a promise by the defendant, as agent for the company, to pay the freight on their account, and not a promise to be personally responsible for it.; and there was no sufficient evidence to the contrary." It is difficult to reconcile this decision with the language of Lord Tenterden, in Drew v. Bird, Mood. & Malk, 156, and Kenteria v. B,uding, Mqod. & Malk. 611. The real question in Amos v. Temperley, 8 Mees. & Wels. 798, was, whether credit was given to A., the agent, or not, for the freight. Now the goods were deliverable to him, for the Gas Company, but he, or his assigns, were to pay the freight, by the terms of the bill of lading. Why then was not A. directly liable for freight,, according to the terms of the bill of lading .>" He had not assigned it. It by no means followed, that, because the London Gas Company might be liable for the freight, therefore A. was not. Both might be liable. Ante, § 270 and note. In Abbott on Shipp. Pt. 3, ch. 7, § 4, it is said, " If a person accepts any thing, which he knows to be subject to a duty or charge, it is rational to conclude that he means to take the duty or charge on himself." See ante, § 263, note ; Post, § 395. See, as to when a consignment vests the property in an agent, who is under liabilities or has made advances, Holbrook v. Wright, 24 Wend. 169 ; Haille v. Smith, 1 Bos. & Pull. 563 ; Ante, § 111 ; Abbott on Shipp. Pt. 3, ch. 2, § 4, note 1, p. 216 (Amer. edit. 1829) ; Dunlap v. Lambert, 6 Clark & F. 600, 625, 627. See post, § 395 and note. 344 AGENCY. [CH. X. stances, it cannot be enforced ; or if there is a total failure of the consideration on one side, and the other side cannot maintain any action thereon ; there, the agreement will be treated as ut- terly void. Thus, for example, if an agent should in his own name, and as attorney of his principal, demise an estate of his principal for a term of years, at a specified rent, and the lessee should covenant to pay the rent ; there, inasmuch as the demise would be utterly void, as the lease is not executed in the name of the principal, the agent could not maintain a suit for the rent on the covenant, because the whole instrument, including ' the covenant, would be deemed void, and the consideration for the covenant would totally fail.^ Neither, for the like reason, could the lessee maintain a suit on any covenant in the lease in his own favor. The same rule has been applied to the case, where an agent made an agreement under seal, as attorney of his prin- cipal, whereby, in consideration of a certain sum, he agreed to execute a good and sufficient conveyance in the law, of a certain- farm of his principal ; and the agent brought a suit to recover the consideration-money ; and it was held unmaintainable, be- cause the agreement was considered as made by and with the agent in his own name, as attorney, and not in the name of his principal, and then the whole agreement deemed void, since the agent had no estate in the farm to convey .'^ If, however, the agreement had been by the agent, not that he would convey, but that his principal should convey, then it seems that the agree- ment would have been valid.^ § 274 h. Another class of cases may readily be suggested, ' Frontin v. Small, 2 Ld. Raym. 1418; s. c. 2 Strange, 705; Berkeley V. Hardy, 6 B. & Cressw. 355; Townsend v. Hubbard, 4 Hill (N. Y.), 361, 358. ' Bogart V. De Bussy, 6 John. 94._ ' Spencer v. Field, 10 Wend. 87. Some doubt may well be entertained, whether the case of Bogart v. De Bussy, 6 John. 94, was a correct application of the principle of the case of Frontin v. Small, 2 Ld. Raym. 1418. The latter was an executed lease in the name of the agent, and passed no estate. The former was an executory agreement, under seal, in which the covenant was, on the part of the agent, " to execute a good and suflScient conveyance in the law" of the farm of his principal, which covenant could properly be per- formed by a conveyance in the name of his principal, under due authority. The pleadings, upon which the case was decided, did not raise any question as to the form of the conveyance, which was to be made ; but turned upon a collat- eral mortgage on the estate. §§ 274 a-275.J liabilities to third persons. 345 where, from the defective mode of executing the instrument, the principal is not bound, and yet, neither is the agent bound ; and that is, where, although the agent is capable of acting for the principal, he or she is incapacitated from binding himself or her- self by a personal contract. Thus, for example, if a husband should authorize his wife to sign notes on his account, it is indis- pensable, in order to bind him, that the notes should, either in the body thereof, or in the signature, purport to be his notes, or on his account ; for notes, given in her own name, would not, in such a case, bind either the husband, or the wife.^ [Although the contrary has been recently held in England.^] Similar con- siderations will apply to an agent, who is an infant. In short, in all cases, in order to bind the principal upon the instrument, there must be apt words to charge him ; and in like manner, if the principal is not bound by the instrument, the agent will not be bound thereby, unless it contains apt words also to charge •him; althpugh, if he be of competent capacity to enter into a contract, he may be responsible in an action upon the case for his negligent performance of his duty, or his improper assump- tion of authority.^ § 275. In a great variety of cases, even where the contract is in writing, it becomes a nice question, whether the agent is, or is not, personally bound.* Some of the cases on this subject have been already cited ; ^ and it is dif&cult, perhaps impossible, to reconcile all the authorities, bearing on the point. Ordina- rily, as we have seen, if the contract is made in such a manner as directly to bind the principal, the agent will not be bound personally.^ But the embarrassing question still remains, whether the form of the instrument does, or does not, import a personal liability on the part of the agent. Thus, if an agent should make a note, in which he should say, " I promise to pay," &c., ' Minard v. Mead, 7 Wend. 68 ; Ante, § 264, note. ' Lindus v. Bradwell, 5 Com. B. 683. ' Stetson B. Patten, 2 Greenl. 358 ; Ante, § 264, note. * Smith on Merc. Law, 79, 80 (2d ed.) ; Id. pp. 140-143 (3d ed. 1843) ; Bowen v. Morris, 2 Taunt. 374; Denton v. Rodie, 3 Campb. 493; Norton o. Herron, 1 Carr. & Payne, 648 ; s. c. 1 Ky. & Mood. 229 ; Kendray v. Hodg- son, 5 Esp. 228. » Ante, §§ 154, 155; 158, 269, 270. ' Ante, §§ 263, 269 ; Mann v. Chandler, 9 Mass. 335. 346 AGENCY. [CH. X. and sign it "A. B., for C. D." (the principal), the question would arise, whether he was personally bound, or not, upon the instrument in that form.^ We have already seen, that it has been held, that in such a case, he is not personally bound, if he has authority to sign the note from 0. D.^ The construction might, perhaps, be more doubtful, if the note were, " I., A. B., as agent of C. D., promise," &c., and it were signed, "A. B." And, if in the latter case the note were under seal, there would be strong ground to say, that it was the deed of the agent, and not of the principal.^ § 275 a. Similar difficulties have occurred in the application of the same doctrine in the Scottish courts, although they are professedly governed by the same general principle, which regu- lates the doctrine maintained in England and America. Thus, . in one case, where the agent of a company, having drawn bills in his own name, discounted them, when accepted, with a bank (the acceptor, who happened to be debtor of the company, hav- ing also been informed in a letter to him from the drawer, that the bills in. question would be placed to his credit with them), the court of sessions found the company liable in an action on the bills, on the ground, that the drawer had drawn and dis- counted the bills as their agent and for their behoof. But the judgment has been reversed on appeal, and the reversal appears to be conformable with the doctrine now stated. The circum- stance of the funds, raised by discounting the bills, being applied to the company's use, was a matter between them and their agents, with which the discounters had no concern. In a later case, certain trustees were found liable for the amount of a prom- issory note, which the manager of a coal-work forming part of the trust, had granted in his own name. But this was found, not in an action on the bill, but in an action brought on the authority alleged to be given by the trustees, both directly and ' See Kice v. Gove, 22 Pick. 168 ; Woodes u. Dennet, 9 N. H. 55 ; Ante, §§ 154, 155, 161 ; Post, §§ 269, 270, 275-279. [* In many cases the question of the liability of an agent would depend upon the state orf facts shown to exist at the time the written contract was made and by which it is to be inter- preted. Shattuck u. Eastman, 12 Allen, 374.] ^ Ante, §§ 154, 155 ; Ballou v. Talbot, 16 Mass. 461. " See Dubois u. Delaware & Hudson Canal Co. 4 Wend. 286 ; Ante, §§ 147- 166 ; Appleton v. Binks, 5 East, 148. §§ 275-276.] LIABILITIES TO THIRD PERSONS. 347 rebus etfactis, to sign bills on their account in the business of the trust. ^ § 276. Other illustrations of the difficulties, growing out of the interpretations of particular instruments, may be derived from adjudged cases. Thus, where a contract under seal was made between A. B., as agent of C. D., of the one part, and E. F., of the other part, and it was signed and sealed A. B., and B. F. ; it was held to be the deed of A. B., the agent ; and that he was personally responsible on the covenant.^ So, where a sealed agreement purported to be by and between the plaintiifs, of the one part, and A. B., C. D., and E. E., directors of the G. Cotton Manufactory, of the other part, and it was signed, " for the directors, A. B. ; " it was held to be personally obligatory upon A. B., although he by plea averred, that it was made by himself and the other directors, as agents only of the company .^ So, where A., B., and 0. made a note as follows : " We, the sub- scribers, jointly and severally, promise to pay D., or order, for the Boston Glass Manufactory, and signed their names, not say- ing, as agents, it was held, that the note bound them, personally, and not the corporation.* So, where two persons made a prom- issory note in this form : " We the subscribers, trustees for the proprietors of the new Congregational meeting-house at A., prom- ise to pay B. the sum of," &c., and signed it C, D., E., F. ; it was held that the note bound them personally, and not the pro- prietors.^ So, where the committee of a town made a contract in the following words : " Agreement between A., B., and C, committee of the town of N., of the one part, and D. and B. of ' Thomson on Bills, pp. 218, 219 (ed. 1837). ^ Stone V. Wood, 7 Cowen, 453; Taft v. Brewster, 9 John. 334; Hall ». Bainbridge, 1 Mann. & Gr. 42 ; Ante, §§ 158, 273 ; Post, § 278, and note. • ' White V. Skinner, 13 John. 307 ; Ante, § 273. * Bradlee v. Boston Glass Manufactory, 16 Pick. 347. In this case, Mr. Chief Justice Shaw said, " It is held in many cases, that, although the contract of one is given for the debt of another, and although it is understood, between the persons promising, and the party for whom the contract is entered into, that the latter is to pay it, or to reimburse and indemnify the contracting party, if he should be required to pay it, it is still, as between the parties to it, the contract of the party making it. A leading and decisive case on this point is Stackpole v. Arnold, 11 Mass. 27." See ante, §§ 164, 155. ' Packard v. Nye, 2 Met. 47. 348 AGENCY. [CH. X. the other part, and the said committee agree to pay," &o., signing their own names, A., B., and C. ; it was held, that they wete personally liable on the contract.^ So, where a committee of the directors of a turnpike corporation entered into a contract under seal, describing themselves as such committee, on the one part, with the plaintiff, on the other part, and signed and sealed the contract in their own names, it was held, that they were per- sonally responsible ; for it was the deed of the committee, and not of the directors, or of the corporation.^ So, where certain persons signed a note, describing themselves as " Trustees of Union Religious Society," it was held, that they were personally liable thereon, although it was proved, that the society was a corporation, and the note was given for a balance due from the society for a church bell.^ § 277. In the two last cases, it did not appear, that the agents executing the contract had due authority from the directors or corporation to execute the deeds. If such an authority had been proved or admitted, it would still have remained a question, whether, as the deeds were executed in their own names, they would not have been personally bound. This last question has, however, arisen ; and it has been decided in America, that the agents are not affected by any personal responsibility under such a contract, although it is made under their own seals, if the cor- poration itself has conferred on them a due authority to make the contract on their behalf. Thus, where a contract was made by certain persons, by name, purporting to be " a committee of the corporation of the city of Albany," on the one part, and the plaintiff, on the other part ; and it was sealed by the committee with their own seals ; it was held, that they were not personally bound by the contract, as it was authorized by the corporation, although not under its corporate seal; and that the corpora- ' Simonds v. Heard, 23 Pick. 121. See Savage v. Rix, 9 N. H. 263. = Tippetts «. Walker, 4 Mass. 596. ^ Hills V. Bannister, 8 Cowen, 31 ; Ante, § 154 : Shelton v. Darling, 2 Conn. 435; Barker v. Mechanic Fire Ins. Co. 3 Wend. 94.. Fogg ». Virginj 19 Maine, 362 ; Cleaveland v. Steward, 3 Kelly, 283 ; Trask v. Roberts, 1 B. Monr. 201 ; Webb v. Burke, 5 id. 61. But see Mann v. Chandler, 9 Mass. 386 ; Mott v. Hicks, 1 Cowen, 613 ; Ante, § 164 ; Leach v. Blad, 8 Sm. & Marsh. 221. See Cooch v. Goodman, 2 Adolph. & Ellis, New R. 580, 695, 696 ; Fiske v. Eldridge, 12 Gray, Haverhill Mut. Ins. Co. v. Newhall, 1 Allen, 180 (1861). §§ 276-278. J LIABILITIES TO THIRD PERSONS. 349 tion, was alone liable on the contract in an action of assumpsit.^ The ground of this decision seems to have been, that, although the corporation was not a direct party to the contract, yet, as the contract had been duly authorized by the corporation, the agents were not personally liable ; for (it was said) the person who assumes to contract as agent for an individual or for a corpora- tion, must see to it that his principal is legally bound by his act. For, if he does not give a right of action against his principal, the law holds him personally liable.^ But in this case, as the agents made the contract with due authority, the court held, that, although no action lay upon the deed as the deed of the corpora- tion, yet an action of assumpsit would lie against the corporation, founded' upon the obligations contained therein. § 278. But it deserves consideration, whether the doctrine can be generally maintained, that, because the principal may be indi- rectly liable on the contract, therefore the agent is exonerated from all personal responsibility. Besides, it is manifest, that the agents had here made a contract in their own names, although as a committee of the corporation ; and the deed was their own deed, and not that of the corporation.^ The corporation, con- fessedly, could not be sued on that instrument as their deed ; and it would seem to be a general rule, that an agent who exe- cutes an instrument, must execute it in the name of the principal, so as to give a right of action thereon against him, if he would avoid personal responsibility ; and, if it be a contract by deed, then it must be in the name, and be the deed, of the principal ; for, if it be the deed of the agent, he alone is responsible thereon, ' Randall v. Van Vechten, 19 John. 60 ; Dubois v. The Delaware and Hud- son Canal Co. 4 Wend. 285 ; Brockway v. Allen, 17 Wend. 40. But see Hopkins V. Mehaffy, 11 Serg. & R. 128, 129; Ante, §§ 164, 159, note, § 273, note (1), and post, § 278, and note. The case of RandaU v. Van Vechten, 19 John. 60, was distinguished by the court from the case of a public agent of the government, upon the ground that the city of Albany was a private, although a political, corporation. But see Hatch v. Barr, 1 Hamm. 390, 394. ^ Randall v. Van Vechten, 19 John. 60 ; Dubois v. The Delaware and Hud- son Canal Co. 4 Wend. 286; Brockway v. Allen, 17 Wend. 40. But see Hopkins V. Mehaffy, 11 Serg. & R. 128, 129 ; Ante, § 161, and note, 278, note (1). ' See Damon v. Inhabitants of Granby, 2 Pick. 345 ; Ante, §§ 273, 276, 277. 350 AGENCY. [CH. X. as the proper legal party to it.^ In the common case of a charter- party, executed by the master of the ship, according to his ordi- nary rights and duties, and authority in the proper employment . of the ship, it is not doubted, that his owner is bound by the contract in some form of action. But it is as little doubted, that the owner cannot be sued on that very instrument as his deed ; and that the master may be sued on it, as his own deed.^ In short, in such a case, the contract is treated as the direct con- tract of the master ; and the owner is only secondarily liable, in another form of action (an action on the case), and not in an action on the deed itself.^ Indeed, nothing is more common than for a contract to be made by which the agent is personally bound, and which yet is, ex consequenti, binding on the principal also, although the latter is not a direct and immediate party to the instrument.^ This is true, not only in the commercial law of England and America, but also in that of the foreign nations of continental Europe.^ The more correct and satisfactory doc- trine would seem to be, that, where the agent is a direct party of the instrument, and the principal is not, so that the latter is not, ex directo, suable thereon, there the agent, although he describes himself as agent, is suable upon the covenants and agreements contained therein as his own personal contract.® Still, however, ' Stone V. Wood, 7 Cowen, 453 ; Ante, §§ 156, 156, 158, 264, note, 269, 270, 273, 274 a, 274 b. " Ante, §§ 155, 158, 161, 162, 273 and note, 274 a, 374 b, 279; Post, §294. » Abbott on Shipp. P. 2, eh. 2, § 5, pp. 93, 94; Id. P. 3, ch. 1, § 2, pp. 163, 164 (ed. 1829) ; Stone v. Wood, 7 Cowen, 483; Ante, §§ 158, 160-162; Post, §§ 294, 422, 450, note. ' Ibid. ' Post, § 294. See 1 Emerig. Assur. ch. 6, § 3, pp. 137, 188 ; Id. § 4, pp. 139, 140 ; Pothier, Oblig. n. 448 ; 1 Stair, Instit. by Brodie, B. 1, tit. 12, § 17 ; Ersk. Inst. B. 3, tit. 3, §§ 43, 46 ; 2 Liverm. on Agency, 252-264 (ed. 1818) ; Paley on Agency, by Lloyd, 378-384. « Ante, §§ 160, 273, 276. The cases of Randall v. Van Vechten, 19 John. 60, and Dubois v. Delaware and Hudson Canal Co. 4 Wend. 285, are not easily reconcilable with many other authorities ; and especially with Appleton ». Binks, 6 East, 148 ; Kennedy u. Gouveia, 3 Dowl. & Ryl. 503 ; Burrell v. Jones, 3 B. & Aid. 47 ; Norton v. Herron, 1 Carr. & Payne, 648 ; s. c. Ryan & Mood. 229. See also Tanner v. Christian, 29 Eng. Law & Eq. 103 ; Hop- kins V. Mehaffy, 11 Serg. & R. 126, 128, 129; Ante, § 273, note (1) ; HaUt). Bainbridge, 1 Mann. & Gr. 42. The case of Bowen v. Morris, 2 Taunt. 374, is distinguishable ; for the contract was there treated as the contract of §§ 278, 279.] LIABILITIES TO THIRD PERSONS. 351 the doctrine is to be understood with the qualification, that in the instrument there are apt words to charge the agent personally. For, if an agent should, without authority, execute a deed in the name of the principal, who is* not bound thereby, the agent would not, in sucli a case, be liable to the other party on the instrument itself as his deed, unless there were apt words in it, importing a personal liability on his part.^ The remedy for the misconduct of the agent must otherwise be by an action on the case.^ § 279. But, in cases of unwritten contracts, also, the question may arise, "v^^liether the agent is liable, or the principal only, or both ; and this, as a matter of fact, is generally left to the jury. In all cases of this sort, the question generally is, to whom credit is given, whether to the principal or to the agent. If to the latter, the principal, as was suggested by Lord Chief Justice Abbott, in Kennedy v. Gouveia, 3 Dowl. & Ryl. 603. See also Tippetts v. Walker, 4 Mass. 696 ; Paley on Agency, by Lloyd, 381-384 ; Macbeath v. Haldimand, 1 T. R. 172, 176, 180, 181. In Spittle v. Lavender, 2 Bred. & Bing. 452, where an agree- ment purported to be between A. B. "as agent for, and on the part and behalf of," C. D., of the one part, and E. F., the plaintiff, of the other part; and on the same day the principal, C. D., wrote below on the same paper, "I hereby sanction this agreement, and approve of A. B. having signed the same in my behalf ; " it was held, that, by his signature and approval on the paper, the con- tract became the contract of the principal, and not of the agent, and was to be treated as one transaction ; and so the agent was not liable thereon. Ante, § 261, and note. See Kendray v. Hodgson, 5 Esp. 228 ; Stone v. Wood, 7 Cowen, 463 ; 3 Chitty on Com. & Manuf 211, 212. In Brockway v. Allen, 17 Wend. 40, the defendants made a note, signed with their names, wit^ the description added, "Trustees of the First Baptist Society of the village of Brockport.'' The defendants were trustees, and the society was incorporated by the name of the First Baptist Church and Society of the village of Brock- port; and, by the laws of New York, where the note was made, and the society incorporated, the trustees, as such, are a corporation, having a common seal ; and the note was for a debt due by the society. It was held on special pleading, that the defendants were not personally liable on the note, and that the society was. And see Jefts v. York, 10 Cush. ; Ante, § 164. But see Hills V. Bannister, 8 Cowen, 31. In Taft v. Brewster, 9 John. 334, where the defendants executed a bond to the plaintiff, by which the defendants, by the name and description of A. B. C. D., and E. F., "Trustees of the Baptist Society of the town of Richfield," bound themselves in the form of, &c., &c. ; and the bond was signed A. B. C. D., and E. F., "Trustees of the Baptist Society of Richfield," it was held, that the defendants were personally bound on the bond. See Fox v. Drake, 8 Cowen, 191 ;■ Osborne v. Kerr, 12 Wend. 179; Ante, §§ 160, 160 a, 161; Post, §§ 422, 460. ' Stetson V. Patten, 2 Greenl. 368 ; Ante, § 274 b. ' Ante, § 160, note, § 264, note, § 270, note. 352 AGENCY. ' [CH. X. then he is personally responsible, even althoiigh he may be known to be acting foi" his principal.^ Thus, for example, an agent, although known as such, may, by his express warranty of soundness or of title, or of any oth^r fact, in regard to the com- modity sold by him for his principal, make himself personally liable, if the credit is clearly given to him on such warranty.^ Indeed, if such warranty is made falsely and fraudulently by the agent, he will be personally liable thereon, as a matter of tort.3 § 280. In the next place, persons contracting as agents, are nevertheless ordinarily, although, as we shall presently see,* not universally, held personally responsible, where there is no other responsible principal, to whom resort can be had.^ Thus, for example, where a person signed a note, " as guardian of A. B.," he was held to be personally liable on the note ; for he could not make his ward personally liable therefor, nor his ward's assets.^ So, where a person signed a note, " as trustee of A. B.," he was held personally liable on the note ; for it was not primarily bind- ing on his cestui que trust.'' So, where a person signed a note, " as executor of A. B.," or " as administrator of A. B." [or as "solicitor of T. M. E.," &c.^], it was held, that he was per- sonally liable on the note ; for such a note would not bind the estate of the deceased ; and, to give it any validity, it must be construed to be a personal obligation of the maker .^ So, a bill of exchange, accepted by A., " as administrator of B.," will bind A. personally .1" ' Scrace v. Wtittington, 2 B. & Cressw. 11 ; Iveson v. Conington, 1 B. & Cressw. 160 ; Cunningham v. Soules, 7 Wend. 106 ; 3 Chitty on Com. & Manuf. 211, 212 ; Ante, §§ 160, 160 a, 161. ' Paley on Agency, by Lloyd, 885, 386 ; Fenn ». Harrison, i T. K. 177. " Paley on Agency, by Lloyd, 886 ; Ante, § 310. * Post, §§ 267-290; Ante, §§ 274 a. * Paley on Agency, by Lloyd, 874 ; 3 Chitty on Com. & Manuf. 211 ; 2 Kent, Coram. Leot. 41, p. 680 (4th ed.) ; Ante, § 165. ' Thaohei; v. Dinsmore, 5 Mass. 299 ; Forster v. Fuller, 6 Mass. 68. ' Hills V. Bannister, 8 Cowen, 31 ; Ante, §§ 164, 276 ; Sumner v. Williams, 8 Mass. 162. s Burrell v. Jones, 3 B. & Aid. 47 ; and see Roberts v. Button, 14 Vt. 195. 9 Forster v. Fuller, 6 Mass. 58 ; Childs v. Monins, 2 Brod. & Bing. 460. See also King v. Thorn, 1 T. R. 487 ; Ante, § 273. "> Tassey v. Church, 4 Watts & Serg. 346. §§ 279-283.] LIABILITIES TO THIED PERSONS. 353 § 281. This whole doctrine proceeds upon the plain principle, that he who is capable of contracting, and does contract in his own name, although he is the agent of another, who is incapable of contracting, intends to bind himself; since in no other way- can the contract possess any yalidity, but it would perish from its intrinsic infirmity.^ The Koman law fully recognized the propriety ^nd justice of this doctrine, and applied it to the case of the master of a ship, who contracted with reference to the employment of the ship, for a slave, who was the employer of the ship (exercitor navis). " Item, si servus mens navem exercebit ; et cum magistro ejus contraxero, nihil obstabit, quo minus adversus magistrum experiar actione, quae mihi vel jure civili, vel honorario competit." ^ § 282. The same doctrine has been applied to cases where persons are acting in a public official character on behalf of irre- sponsible persons (not on behalf of the government) ; upon the ground that, unless these persons are liable on the contracts so made by them, the other party will be left without remedy ; and such an understanding is not to be presumed to have been in- tended by either party. Therefore, where certain persons were, by an act of parliament, appointed commissioners for making a river navigable, with power to raise and borrow money upon the tolls of navigation ; and the acting commissioners gave orders, at their meetings, for work to be done, in furtherance of their duty in the premises ; and, the work being done, the commis- sioners declined paying therefor, alleging that they had no funds left ; it was held, upon a bill in equity against them, that they were personally responsible on the contract, upon the ground, that credit was given to them personally, and not merely to the funds.^ § 283. So, where commissioners under an enclosure act were authorized to make a rate to defray the expenses of passing and executing the act ; and the act declared, that persons advancing money should be repaid out of the first money received by the commissioners ; and the commissioners, to defray the expenses, from time to time drew drafts on the plaintififs, as bankers, in the form following : " Pordham (the month), A. D. (the year), ' Ante, § 273. » Dig. Lib. 14, tit. 1, 1. 5, § 1 ; Pothier, Pand. Lib. 14, tit. 1, n. 17. ' Horsley v. BeU, 1 Brown, Ch. 101, note ; 8. c. Ambler, 770. A.GBNCT. 23 354 AGENCY. [CH. X. Messrs. B. H. & Son, pay to John Morgan, or bearer, , pounds, on account of the public drainage, and place the same to our account, as commissioners of the above enclosure ; " it was put to the jury to say, whether credit was given to the defendants, the commissioners, personally, or to the fund ; and the jury found for the plaintiffs. It was afterwards held, that the verdict was right, and that the commissioners were personally responsible on the drafts.^ § 284. So, where the defendant, as chairman of the trustees of a turnpike road, signed a resolution of the trustees, that the plaintiff (the treasurer of the road) should be requested to make a temporary advance of money for the purposes of the road, it was left to the jury to say, whether the money had been advanced upon the security of the road, or upon the personal security of the defendant ; and the jury found, that the money was lent upon the personal security of the defendant. It was afterwards held, that the verdict might well be supported, as it did not appear, that the trustees could give any security for a temporary loan upon the funds of the road ; and, therefore, a personal security might well be presiimed to have been intended.^ § 285. Upon the same principle, where certain persons, on be- half of a parish in England, made an agreement with the plaintiff to pave the streets of the parish, and to pay him therefor ; it was held, that the persons, so contracting, were personally liable ; for the parishioners, as such, could not be sued therefor.^ So, where an overseer of the poor in England contracted with tradesmen upon account of the poor, and upon his own credit ; it was held, that, as soon as he received so much of the poor's money, it be- came his own debt.* So, where the committee of a voluntary society entered into an agreement with a tradesman, for business to be done on behalf of the society, it was held, that they were personally liable thereon ; for the credit must fairly be presumed to be given to them, rather than to the subscribers at large.^ So, 1 Eaton V. Bell, 6 B. & Aid. 34. See also Higgins v. Livingstone, 4 Dow, 355. ' Parrott v. Eyre, 10 Bing. 292 ; Higgins «. Livingstone, 4 Dow, 355. ' Meriel v. Wyinondsold, Hardres, 205. * Anon. 12 Mod. 659. See Lambert v. Knott, 6 Dowl. & Ryl. 122. ^ CuUen V. Duke of Queensberry, 1 Bro. Ch. 101 ; s. c. 1 Bro. Pari. Cases, by Tomlins, 896 ; Lanchester v. Trioker, 1 Bing. 201. See Hoskins v. Slayton, Cas. Temp. Hard. 376. §§ 283-286.] LIABILITIES TO THIRD PERSONS. 355 where the business of a voluntary eleemosynary society was con- ducted by a committee, it was held, that they were personally responsible to a baker, who supplied the establishment with bread at their request ; for it might fairly be presumed, that he looked to the committee for payment, and not to the subscribers at large.i § 286. So, where the defendants had become directors of a vol- untary projected water company, for which an act of Parliament was to be obtained ; and no act was obtained ; but, in the mean time, the directors had published an advertisement for proposals for excavating and removing the earth and chalk for reservoirs ; and the proposals of the plaintiff had been accepted ; and the plaintiff had performed the labor and services upon a reservoir accordingly, for which the action was brought; and the whole scheme afterwards fell to the ground; it was held, that the defendants were pei'sonally liable for the amount. § 286 a. So, where an indentiire was made between A. of the first part, B. of the second part, and C, D., E., and P. of the third part, whereby A. covenanted with C, D., B., and P. to do certain repairs to the parish church of Z. ; and, in consideration of the covenant on A.'s part, C, D., B., and P., " church-wardens and overseers of the poor of the parish of Z., for themselves and their successors, church-wardens and overseers of the said parish, and. their assigns, did thereby covenant with A., his executors and ad- ministrators, that they, the said church-wardens and overseers of the poor, their successors, or assigns, should well and truly pay or cause to be paid unto A.," &c., the sum specified, by certain instalments ; it was held, that C, D., B., and P. were personally liable on the covenant, notwithstanding there was an express pro- viso in the indenture, that nothing in the indenture " shall extend or be deemed, adjudged, construed, or taken to extend, to any personal covenant or obligation upon the said persons, parties thereto, of the third part, or in anywise personally affect them, or any of them, their or any of their executors, administrators, goods, effects, or estates, in their private capacity, but shall be, and is intended to be, binding and obligatory upon the chuich- wardens and overseers of the poor of the parish of Z., and their ^ Burls ». Smith, 7 Bing. 706. See Doubleday v. Muskett, 7 Bing. 110 ; Ridgely v. Dobson, 3 Watts & S. 118. ' Doubleday v. Muskett, 7 Bing. 110. 356 AGENCY. [CH. X. successors for the time being, as such church-wardens and over- seers of the poor ; but not further or otherwise." ^ The ground of the decision seems to liave been, that church-wardens and over- seers, though they are by statute a corporate body for some pur- poses, cannot enter into such a covenant as this in a corporate cliaracter; and, if not, then the covenant must be a personal covenant ; and that the proviso being repugnant to the covenant, must, according to the authorities, be rejected.^ § 287. But, althougli it is thus true that persons, contracting as agents, are ordinarily held personally responsible, where there is no other responsible principal to whom resort can be had ; yet, the doctrine is not without some qualifications and exceptions, as indeed, the words " ordinarily held " would lead one naturally to infer.^ For, independent of the cases already suggested, where the contract is, or may be treated as a nullity, on account of its inherent infirmity or defective mode of execution,* other cases may exist, in which it is well known to both of the contracting parties, that there exists no authority in the agent to bind other persons for whom he is acting, or that there is no other responsi- ble principal ; and yet, the other contracting party may be con- tent to deal with the agent, not upon his personal credit, or personal responsibility, but in the perfect faith and confidence, that such contracting party will be repaid and indemnified by the persons who feel the same interest in the subject-matter of the contract, even though there may be no legal obligation in the case.^ Thus, for example, if private persons should subscribe a sum towards some charitable object, and should request an agent to employ tradesmen, and others, to supply materials to carry it into effect ; and it should be distinctly made known by the agent, that the tradesmen and others were not to look to him, or to the subscribers personally, for payment ; but that they must solely depend upon the success of the charitable subscription, and the state of the funds ; and the supplies should be furnished with this clear understanding ; there could be no doubt that neither the subscribers (at least, beyond their subscriptions), nor the ' rurnivall v. Coombes, 5 Mann. & Gr. 736, 751, 762. ' Ibid. ' Ante, §§ 274 a, 274 6, 280. « Ibid. = Smith on Merc. Law, 79 (2d ed.) ; Id. B, 1, ch. 6, §7, pp. 141-143 1843) ; 2 Kent, Comm. Lect. 41, pp. 630, 631 (4th ed.). § 286-288.] LIABILITIES TO THIED PERSONS. 357 agent, would be personally responsible. Such occurrences often take place in cases of voluntary charitable societies ; and especially in cases of such charities, conducted by females, some of whom are married and some unmarried ; where the tradesmen, who furnish supplies, are understood to trust entirely to the state of the funds, and to rely for reimbursement solely upon the funds, which may, from time to time, be obtained from charitable and beneficent persons.^ For it has been well remarked, that few persons would be willing to become members or committees of bible societies, and other voluntary religious and eleemosynary institutions, if they were held to be personally bound, or person- ^ ally liable to arrest for the bibles, or other articles, furnished in furtherance of such meritorious objects.^ So, if a literary society should sign a subscription paper, agreeing to give a certain sum annually for books, to be paid to the treasurer, and books are ordered, the bookseller furnishing them cannot sue the subscribers upon the subscription paper.^ Similar transactions may take place in relation to agents, acting for the public at large, or for particular public bodies, in cases avowedly beyond the scope of their authority, and yet, for the benefit of the public at large, or for particular public bodies, where the other contract- ing party may rely solely upon the public liberality and sense of justice to award him a suitable compensation, without in any manner giving credit to the agents, or looking to them for com- pensation.* § 288. The truth, however, is, that the same general principle prevails in all these cases, notwithstanding their apparent diver- sity of form and decision. They are all answered by the same general inquiry : To whom is the credit knowingly given, accord- ing to the understanding of both parties ? This inquiry is some- times a matter of fact, as where the contract is verbal and unwritten, and sometimes a matter of law, as where it depends upon the true construction of the terms of a particular written instrument. The law, in all these cases, pronounces the same decision ; that he to whom the credit is knowingly and exclu- ' See Burls v. Smith, 7 Bing. 705. ^ Ibid. ' Ridgely v. Dobson, 3 Watts & S. 118. * Tobey v. Clafflin, 3 Sumner, 379; Parrott«. Eyre, 10 Bing. 283. 358 AGENCY. [CH. X. sively given, is the proper person, who incurs liability, whether he be the principal or the agent.^ § 289. Hence it is, that, although it is perfectly well known that a person is acting for others, as an agent, as, for example, for a club, if articles are furnished for the club at his request, upon the exclusive credit of the agent, or of any other particular member, no other persons, composing the club, will be liable therefor.2 But it will not necessarily be conclusive proof of such an exclusive credit, that the agent, or other member, is charged in the creditor's books, or that the account is made out in his name ; for it is a mere matter of presumption, to which a jury may attach more or less weight, according to circumstances.^ So, | also, if a foreign merchant, not choosing to make himself per- sonally liable, should go with his agent to tradesmen, and should ' Smith on Merc. Law, 79 (2d ed.) ; Id. ch. 5, § 7, pp. 140, 141 (Sd ed. 1843) ; Paley on Agency, by Lloyd, 368, 370, 371 ; Delauney v. Strickland, 2 Stark. 416 ; 3 Chitty on Com. & Manuf. 211, 212 ; Paterson v. Gandasequi, 16 East, 62, 64, 66, 68, 69 ; Ex parte Hartop, 12 Ves. 352 ; Thomson v. Dav- enport, 9 B. & Cressw. 78, 88, 90 ; Addison o. Gandasequi, 4 Taunt. 676 ; Owen V. Goooh, 2 Esp. 567 ; Hyde v. Wolff, 4 Miller, La. 234. See the lan- guage of Lord Erskine, in Ex parte Hartop, 12 Ves. 362, cited ante, § 261, note (1). In Owen v. Gooch, 2 Esp. 668, Lord Kenyon said, "The goods are ordered by Gooch, but at the time it is not pretended, that they were for his own use ; they were ordered for Tippell, and the entry is made in his name. We must keep distinct the cases of orders given by the parties themselves, and by others, as their agents. If the mere act of ordering goods was to make the party, who ordered them, liable, no man could give an order for a friend in the country, who might request him to do it, without risk to himself If a party orders goods from a tradesman, though in fact they are for another, if the tradesman was not informed at the time, that they were for the use of another, he, who ordered them, is certainly liable, for the tradesman must be presumed to have looked to his credit only. So, if they were ordered for another per- son, and the tradesman refuses to deliver to such person's credit, but to his credit only, who orders them, there is then no pretext for charging such third person ; or, if goods are ordered to be delivered on account of another, and, after delivery, the person, who gave the order, refuses to inform the tradesman who the person is, in order that he may sue him, under such circumstances he is himself liable ; but, wherever an order is given by one person for another, and he informs the tradesman who that person is, for whose use the goods are ordered, he thereby declares himself to be merely an agent, and there is no foundation for holding him to be liable." * Delauney v. Strickland, 2 Stark. 416 ; Paterson v. Gandasequi, 16 East, 62, 64, 68. "See Todd v. Emly, 7 Mees. & Wels. 427 ; Todd v. Emly, 8Mees. & Wels. 505. » Ibid. §§ 288-290.] LIABILITIES TO THIRD PEESONS. 359 buy goods in the agent's name, and credit should be given to the agent, although the principal is known, there cannot be the slightest doubt, that no recovery could be had for the goods against the principal.^ Indeed, the doctrine may be stated in a more general form, that, wherever exclusive credit is given to an agent in any transaction for a known principal, there, the party must abide by his election ; and he cannot afterwards hold the principal liable therefor.^ § 290. There are cases in which the presumption of an exclu- sive credit being given to an agent is so strong as almost to amount to a conclusive presumption of law. Thus, for example, where a known factor buys or sells goods for his principal, who is resident in a foreign country (as, for example, in France or Germany), it will be presumed, in the absence of all rebutting circumstances, that credit is given exclusively to the factor in the whole transaction, and that he is dealt with as the principal.^ This doctrine may be satisfactorily explained, in many cases, by the consideration already stated, that there is no other known responsible principal.* But it is founded upon a broader ground, — namely, upon the presumption that the party dealing with the ' Paterson v. Gandasequi, 13 East, 64, 66, 68 ; Addison v. Gandasequi, 6 Taunt. 674. ' Thomson v. Davenport, 9 B. & Cressw. 78, 88, 98 ; Addison v. Gandasequi, 4 Taunt. 674; Ranken v. Deforest, 18 Barb. 143. ' Gonzales v. Sladen, Bull. N. P. 130 ; 2 Liverm. on Agency, 249 (ed.l818) ; Paley on Agency, by Lloyd, 248, 373 ; Paterson v. Gandasequi, 16 East, 68, 69; Thomson v. Davenport, 9 B. & Cressw. 78, 87, 88; 3 Chitty, Com. & Manuf. 203 ; Houghton v. Mathews, 3 Bos. & Pull. 489, 490, per Chambre, J. ; Smith on Merc. Law, 66, 78 (3d ed.) ; Id. B. 1, ch. 6, § 7, pp. 142, 143, (3d ed. 1843) ; Addison v. Gandasequi, 4 Taunt. 576 ; 1 Bell, Comm. § 418, p. 398 (4th ed.); Id. pp. 491, 492 (6th ed.). In De Gaillon v. L'Aigle, 1 Bqs. & Pull. 369, Lord Chief Justice Eyre said, " I am not aware, that I have ever concurred in any decision, in which it has been held, that, if a person, de- scribing himself as agent for another residing abroad, enter into a contract here, he is not personally liable on the contract.'' Lord Tenterden, in Thomson V. Davenport, 9 B. & Cressw. 87, said, " There may be another case, and that is, where a British merchant is buying for a foreigner. According to the uni- versal understanding of merchants, and of all persons in trade, the credit is then considered to be given to the British buyer, and not to the foreigner." Ante, §§ 267, 268. But see Taintor v. Prendergast, 3 Hill, 72, 73 ; Kirkpatrick V. Stainer, 22 Wend. 244, and ante, § 268, note ; Post, § 291, note, 400 ; Green V. Kopke, 36 Eng. Law and Eq. 398. * Ante, § 280; Post, §§ 400, 423, 448. 360 AGENCY. [CH. X. agent intends to trust one who is known to him, and resides in the same country, and is subject to the same laws as himself, rather than to one who, if known, cannot, from his residence in a foreign country, be made amenable to those laws, and whose liability may be affected by local institutions and local exemp- tions, which may put at hazard both his rights and his remedies.' A fortiori, the doctrine will apply to an agent acting for an un- known principal in a foreign country. [But this liability of an agent of a foreign principal seems to depend, after all, upon the question whether he intended to bind himself personally, as in other cases, — a question of fact in each case.^ But whether the agent of a foreign principal, whose name is undisclosed, is or is not himself liable on the contract to the other contracting party, he is not liable to his principal, who has advanced money to such other party on a contract for the sale of goods, but which cannot be delivered because they had been previously sold by the ven- dor ; and the remedy of such principal to recover back the money so paid is against the vendor either in his own or in his agent's name.^] § 291. In the cases which have been already stated, the prin- cipal question discussed has been. To whom credit has been exclusively given. And this leads us to remark, that, although in general where credit is given, either to the agent or to the principal, a presumption will arise that it is an exclusive credit, yet this doctrine is far from being universally true. The cases to which it properly applies, are those where the agent is acting for a known principal, and the party dealing with the agent, elects to credit one, and not the other.* When, therefore, the agent acts without disclosing that he is acting as an agent; or when, acting as a known agent, he does not disclose the name of his principal ; there, although credit is given to the agent, yet it is not deemed to be an exclusive credit.^ On the contrary, when the principal is discovered, he also will be deemed respon- sible, as well as the agent.^ There is this qualification, however, * Ante, § 268, and note ; Post, § 400. [» Green ». Kopke, 36 Eng. Law and Eq. 398; 18 C. B. 549.] P Risbourg v. Bruckner, 2 J. Scott (N. S.), 812.] * Hyde v. Wolff, 4 Miller, La. 234. ' Ante §§ 266-268; Post, §§ 393, 396. * Smith on Merc. Law, 65, 66, 78 ; Railton v. Hodgson, 4 Taunt 576, note ; §§ 299, 291.] LIABILITIES TO THIRD PERSONS. 361 annexed to such, liability of the principal, that nothing has, in the mean time, passed between the principal and the agent to alter the state of their accounts, or otherwise to operate injiiriously to Wilson V. Hart, 7 Taunt. 296 ; Thomson v. Davenport, 9 B. & Cressw. 78 ; Hyde D.Wolff, 4 Miller, La. 234, 236 ; Upton v. Gray, 2 Greenl. 373 ; Paley on Agency, by Lloyd, 245-260 ; 2 Kent, Coram. Lect. 41, pp. 630, 631 (4th ed.). This whole doctrine, and its distinctions, are fully expounded by the court, in Thomson v. Davenport, 9 B. & Cressw. 78. On that occasion, Lord Tenterden said, pp. 86, 87, "I take it to be a general rule, that if a person sells goods (supposing, at the time of the contract, he is dealing with a prin- cipal), but afterwards discovers that the person, with whom he has been dealing, is not the principal in the transaction, but agent for a third person, though he may, in the mean time, have debited the agent with it, he may afterwards recover the amount from the real principal ; subject, however, to this qualifica- tion, that the state of the account between the principal and the agent is not altered to the prejudice of the principal. On the other hand, if, at the time of the sale, the seller knows, not only that the person, who is nominally dealing with him, is not principal, but agent, and also knows, who the principal really is, and, notwithstanding all that knowledge, chooses to make the agent his debtor, dealing with him, and him alone ; then, according to the cases of Addi- son V. Gandasequi, and Paterson i>. Gandasequi, the seller cannot afterwards, on the failure of the agent, turn round and charge the principal, having once made his election at the time, when he had the power of choosing between the one and the other. The present is a middle case. At the time of the dealing for the goods, the plaintiffs were informed, that M'Kune, who came to them to buy the goods, was dealing for another, that is, that he was agent ; but they were not informed who the principal was. They had not, therefore, at that time, the means of making their election. It is true that they might, perhaps, have obtained those means, if they had made further inquiry. But they made no further inquiry. Not knowing who the principal really was, they had not the power at that instant ofmaking their election. That being so, it seems to me that this middle case falls in substance and effect within the first proposition, which I have mentioned, the case of a person not known to be an agent ; and not within the second, where the buyer is not merely known to be an agent, but the name of his principal is also known." In Mr. Lloyd's edition of Paley on Agency, P. 1, ch. 3, § 8, pp. 246-250, these distinctions are laid down with great clearness and accuracy. He says, " Indeed, there are several ways in which the liability of the principal may be affected in purchases made by his agent, of which the following summary may be useful : 1st. The purchase may be made by the broker expressly for, and in the name of, his principal. In that case, if the principal be debited by the seller, he only, and not the broker, will be liable. 2d. A broker may purchase in his character of broker, for a known principal ; but the seller may choose, nevertheless, to take him for his debtor, rather than the principal, in whose credit he may not have the same confidence ; and after this deliberate election, the seller cannot afterwards turn round and charge the principal. 3d. The broker may buy in his own name, without dis- 362 AGENCY. [CH. Z. the principal, if he has acted in the confidence, that exclusive credit was given to the agent ; and, moreover, that there has been no laches on the part of the creditor.^ § 292. The same doctrine, as to the liability of the principal as well as of the agent, has been recognized in the law of many, if not of all, the nations of continental Europe.^ Thus, Pothier lays it down as clear, that, where an agent contracts in his quality as agent in his own name, his principal is bound as well as the closing his principal, in which case the invoices will, of course, be made out to him, and he will be debited with the account. If now, before payment, the seller discover that the purchase was, in fact, made for another, he may, at his choice, look for payment either to the broker or the principal ; to the former upon his personal contract, to the latter upon the contract of his agent ; and the adoption of the purchase by the principal will be evidence of the agent's authority. But, 4th. If, after the disclosure of the principal, the seller He by and suffer the principal to settle an account with his broker for the amount of the purchase, he cannot afterwards charge the former, so as to make him a loser, but will be deemed to have elected the broker for his debtor. And, 6th. If the principal be a foreigner, it seems that, by the usage of trade, the credit is to be considered as having been given to the English broker, and that he only, and not the foreign buyer, will be liable. That question, however, is for the jury. 6th. There is still an intermediate case, where upon a purchase by a broker, the seller, knowing that he is acting as broker in the transaction, but not for whom, makes out the invoice to him, and debits him with the price ; can the seller afterwards, when the name of the principal is made known to him, substitute him as the debtor, and call upon him for payment ? On the one part, it is said, the seller, in debiting the broker, can have exercised no election, because election implies a preference, and there can be no preference, where the prin- cipal is unknown. On the other part, it is answered, that the seller might have known, by simply asking the question, and that the omitting to make the inquiry is decisive evidence of a deliberate preference of the broker. The court of king's bench has decided that the principal, in such case, is not discharged; but the decision has not been considered very satisfactory, and is certainly not implicitly acquiesced in.'' ' Smith on Merc. Law, 66, 78 '(Sd ed.) ; Id. B. 1, ch. 6, § 7, pp. 140-142 (3d ed. 1843) ; Thomson v. Davenport, 9 B. & Cressw. 78 ; Horsfall v. Fauntle- roy, 10 B. & Cressw. 756 ; 3 Chitty on Com. & Manuf. 203 ; Paley on Agency,' by Lloyd, 246-250 ; Rathbone v. Tucker, 16 Wend. 498. A fortiori, if the seller has furnished the agent with the means of misrepresenting the contract to his principal, and the latter has actually paid his agent for the goods pur- chased, according to the terms communicated to him, he will be discharged from all liability to the seller. Horsfall v. Pauntleroy, 10 B. & Cressw. 765; Paley on Agency, by Lloyd, 249, 250. = .See 1 Bell, Comm. ■§ 418, p. 398 (4th ed.) ; Id. pp. 492, 494 (5th ed.) ; Pothier on Oblig.by Evans, notes 82, 446, 447. §§291-293,] LIABILITIES TO' THIRD PERSONS. 363 agent himself.^ His language is, tliat in all such engagements, which an agent contracts for the affairs committed to his charge, although he contracts in his own name, he binds himself, as principal, and, at the same time, he binds his employer, as an accessory debtor ; for the employer is considered as having con- sented beforehand, by the commission which he has given, to all the engagements vrhich the agent might contract in the business to which he is appointed, and to have rendered himself answer- able for them.2 Undoubtedly, exceptions may exist in regard to this general liability in the foreign law, as they do in ours, wherever an exclusive credit is shown to be given either to the employer or to the agent. ^ § 298. There are some particular agencies in which the pre- sumption of a reciprocal credit between the principal and agent and third persons is generally understood to arise by the usages of .trade or by intendment of law. Such, for example, is the case in the ordinary dealings of home factors in buying and sell- ing goods. So that, in case of a purchase by such a factor, he, as well as his principal, is deemed liable for the debt ; and, in case of a sale by such a factor, the buyer is liable, both to the principal and to the factor, for the debt.* This is the ordinary presumption, which, however, may be repelled .by any proofs of exclusive credit or contract with either arising from the circum- stances of the particular transaction.^ § 294. But the most striking case of this sort is that of a mas- ter of a ship contracting within the ordinary scope of his powers and duties. In such a case, he is, in general, personally respon- sible, as well as the owner, upon all contracts made by him for the employment and repairs and supplies of the ship. This is the established rule of our maritime law ; and it is said to have been introduced in favor of commerce, so that merchants may ' Pothier on Oblig. by Evans, notes 82, 447-449 ; Hyde v. Wolflf, 4 Miller, La. 234 ; Hopkins v. Lacouture, 4 Miller, La. 64, 66. ' Pothier on Oblig. by Evans, n. 447 ; Id. n. 82. ' Hyde v. Wolff, 4 Miller, La. 234 ; Hopkins v. Lacouture, 4 Miller, La. 64. * 1 Bell, Comm. § 418, p. 398 (4tli ed.) ; Id. pp. 494, 508 (5th ed.) ; Ante, §§ 269, 270 ; Post, §§ 400, 401. ' Ante, §§ 267, 291; Paley on Agency, by Lloyd, 243-245, 371, 372; Thomson v. Davenport, 9 B. & Cressw. 78, 88, 91 ; Paterson v. Gandasequi, 15 East, 62. 364 AGENCY. [CH. X. not be compelled to seek after the owners to sue them, but that they may have a twofold remedy against the owners and against the master.^ Nor is this doctrine peculiar to our law ; but it has been fully recognized and adopted by the commercial nations of continental Europe.^ In truth, however, it has been derived, both to us and to them, from the Roman law, promulgated by the praetor's edict, whereby the owners and employers of the ship are positively made responsible for the faults of the master and crew, and also for the contracts of the master,, in matters within the scope of his authority.^ " Utilitatem hujus edicti paters (says the Digest) nemo est, qui ignoret. Nam cum interdura ignari, cujus sint conditiones, vel quales, cum magistris propter navigandi necessitatem contrahamus, sequum fuit, eum, qui magistrum navi imposuit, teneri; ut tenetur, qui institorem tabernae, vel negotio, prasposuit ; cum sit major necessitas con- trahendi cum magistro, quam institore ; quippe res patitur, ut de conditione quis institoris dispiciat, et sic contrahat. In navis magistro non ita ; nam interdum locus, tempus non patitur plenius deliberandi consilium."* And it is afterwards added: ' Post, § 316 ; Abbott on Shipp. Pt. 2, ch. 2, § 3, p. 90 (ed. 1829) ; Id. §§ 3-5, pp. 91-94; Id. ch. 3, §§ 2-9, pp. 100-107; Paley on Agency, by Lloyd,, 245, 246, 388 ; Rich v. Coe, Cowp. 637 ; James v. Bixby, 11 Mass. 84 ; 1 Liverm. on Agency, 70, 71 ; Id. 54^197 (ed. 1818) ; 2 Liverm. on Agency, 267-269 (ed. 1818) ; Ante, §§ 36, 116, 117 ; Hussey v. Christie, 9 Bast, 426, 432 ; 3 Kent, Comm. Lect. 46, p. 161 (4th ed.) ; The Nelson, 6 Rob. 227. The American authorities on this subject are in perfect coincidence with the English. Many of them are cited in the notes to the American edition of Ab- bott on Shipping (ed. 1829), Pt. 2, ch. 2, § 2, note (1), and § 3; Id. ch. 3, § 2, note (1) ; Id. § 3, notes 1 and 2. Indeed, in many cases, there may be a threefold remedy, against the ship, the owner, and the master ; as, for example, by seamen for their wages ; and by material-men, for repairs and supplies in foreign ports. See Abbott on Shipp. Pt. 2, ch. 2, §§ 2, 3, 10. and notes to the American edition of 1829 ; Id. P. 4, ch. 4, §§ 1, 2-10, and notes to the Ameri- can edition of 1829 ; Rich v. Coe, Cowp. 637 ; 1 Bell, Comm. p. 508 (5th ed.). = Abbott on Shipp. Pt. 2, ch. 2, § 3, p. 91 (ed. 1829) ; Id. § 4, p. 93 ; Id. § 5, p. 94; Id. ch. 3, §§ 2, 3-9, pp. 100-107; Ante, §§ 116, 160, 161, 278; Pothier on Oblig. n. 82, 448 ; 2 Emerig. Assur. ch. 4, § 10, p. 448 ; Id. ch. 4, § 12, pp. 465-468 ; Ersk. Inst. B. 3, tit. 3, § 43 ; 1 Stair, Inst, by Brodie, B. 1, tit. 13, § 18 ; 1 Bell, Comm. § 434, p. 413 (4th ed.) ; Id. pp. 507, 508; Id. pp. 522, 633 (6th ed.). = Ibid. ; Ante, §§ 116, 117 ; Dig. Lib. 4, tit. 9, 1. 1 ; Abbott on Shipp. Pt. 2, ch. 2, § 3, and note (g), p. 91 (Amer. ed. 1829). ' Dig. Lib. 14, tit. 1, 1. 1, Introd. and § 17 ; Pothier, Pand. Lib. 14, tit. 1, n. 2. §§ 294-296.] LIABILITIES TO THIRD PERSONS. 365 " Sed ex contrario, exercenti navem adversus eos, qui cum magistro contraxerunt, actio non poUicetur ; quia non eodem auxilio indigebat. Sed aut ex locate cum magistro, si mercede operam ei exhibit ; aut si gratuitam, mandati agere potest." ^ The exercitorial action, thus given against the owner, is mferely accessorial or supplemental to that against the master, and does not supersede or extinguish it. " Hoc enim edicto non trans- fertur actio ; sed adjicitur." ^ The rule thus promulgated, and the reasoning by which it is supported, are precisely the same which, in modern times, have been adopted, as the just founda- tions of maritime jurisprudence ; " Bo usque producendam utilitatem navigantium." ^ § 295. There seems, however, to be one peculiarity in the Roman law on this subject; and that is, that, while it gives a right to proceed against the owner or employer, as well as against the master of the ship, for the amount of the repairs and supplies furnished for the ship, and for other contracts made by him within the scope of his employment ; yet, if the creditor elects to proceed in a suit against either of them, he thereby discharges the other. " Est autem nobis electio, utrum exercitorem, an magistrum convenire velimus.* Haec actio ex personS, magistri in exercitorem dabitur. Et ideo, si c\im utro eorum actum est, cum altero agi non potest." ^ Our law, on the other hand, while it gives an election to the creditor to sue either the master or the owner, in a distinct and separate action, does not preclude the creditor, by such an election, from maintaining another action against the party not sued, iinless, in the first election, he has obtained a complete satisfaction of the claim.^ ' Dig. Lib. 14, tit. 1, 1. 1, § 18 ; Pothier, Pand. Lib. 14, tit. 1, n. 18. ' Dig. Lib. 14, tit. 1, L 5, § 1. ' Dig. Lib. 14, tit. 1, 1. 1, § 6. ' Dig. Lib. 14, tit. 1, L 1, § 17 ; Pothier, Pand. Lib. 14, tit. 1, n. 17. ' Dig. Lib. 14, tit. 1, L 1, § 24 ; Pothier, Pand. Lib. 14, tit. 1, n. 17. ' 2 Livenn. on Agency, 267 (ed. 1818). — Emerigon understands the Koman law differently from what I have stated ; and supposes it to be exactly like our law (2 Emerig. Assur. eh. 4, § 10, pp. 448, 449) ; and he cites Stypmannus, and Daurenus also, as authorities in support of his opinion. It is with great diffidence, that I have ventured to differ from such authorities, in the interpreta- tion of the words of the Roman text ; and I am far from feeling certain, that I have not misunderstood that text ; although I am not satisfied, that the language cited from Stypmannus, does support the proposition of Emerigon. [* The proposition of the learned author in the text to which this note is appended is 366 AGENCY. [CH. X. § 296. Such, then, as above stated, is the general doctrine of our law ; but it prevails only in the absence of any satisfactory proof that exclusive credit is given either to the owner or to the master ; for it is perfectly competent for the parties to contract so as to confine the responsibility either to the master or to the owner. 1 If, therefore, .there is satisfactory proof that exclusive credit has been given to the one, the other will be completely dis- charged. Nay, the principle has been carried further ; and it has been held, that, if the party has so conducted himself in the par- ticular transaction as to lead to the conclusion that an exclusive credit has been given either to the master or to the owner, severally, he will not be permitted afterwards to assert his claim, to the prejudice of the party whom he has misled into the belief that he is exonerated.^ § 297. What will amount to satisfactory proof of an exclusive credit, must necessarily depend upon the circumstances of each particular case, and, of course, admits of no positive or universal averment. In general, it may be stated, that the mere fact that the repairs are made, or the supplies furnished, either in the home port or in a foreign country, at the request of the master, will be sufficient to charge him, but not to discharge the owner, denied to be law, in Priestly v. Femie, H Jur. n. s. 813, and the law declared to be, that the master of a ship having been sued to judgment on a bill of lading, the owner cannot be sued, although the judgment be not satisfied. And it is here declared that the same rule, in that respect, applies to all oases of master and servant, where either is liable to an action. But where suit is first brought against one and discontinued, it will not preclude an action against the other.] ' 2 Liverm. on Agency, 167-169 (ed. 1818) ; James ». Bixby, 11 Mass. U, 36, 87. " Abbott on Shipp. Pt. 2, eh. 3, § 2, p. 100 (Amer. ed. 1829), and notes, ibid. ; Wyatt v. Marquis of Hertford, 3 East, 147 ; Hyde v. Wolff, 4 Miller, La. 234 ; Reed v. White, 6 Esp. 122 ; Schemerhorn v. Loines, 7 John. 311 ; Muldon V. Whitlock, 1 Co wen, 299 ; 2 Liverm. on Agency, 267-269 (ed. 1818). The same doctrine will apply to cases, where, after a contract has been made, binding both principal and agent, the seller gives an exclusive credit to the agent for the debt, and induces the principal to believe that the debt is settled by the agent ; as, for example, if, after a sale to the agent, the seller takes the note, or other security of the agent, for the amount, or gives him a receipt, or other document, showing an apparent extinguishment of the debt, and thereby enables the agent to settle with the principal, as if the debt had been paid. Hyde v. Wolff, 4 Miller, La. 234, 236 ; 1 Bell, Comm. § 418, p. 398 (4th ed.) ; Id. pp. 494, 607, 522-524, 587, 538 (5th ed.) ; Reed v. White, 6 Esp. 122; Stewart v. Hall, 2 Dow, 29 ; Porter v. Talcott, 1 Cowen, 369. §§ 296-298. [ LIABILITIES TO THIRD PERSONS. 367 as a personal and exclusive credit to the master, unless some positive contract or other act can be shown which demonstrates an intention tp discharge the owner .^ Nor will a charge of the repairs or supplies in the books of the material-men, in such a case, against the master personally, be sufficient to discharge the owner ; because such a charge is quite consistent with the inten- tion still .to hold the owner liable, whether he be then known or unknown.^ A fortiori, if the charge is made against the ship by her name, without charging either the master or the owner as the debtor, both will be liable ; for, in such a case, the master and the owner may well be deemed as equally representatives of the ship.^ § 298. It will make no difference in respect to the liability of the owner, in cases of repairs to ships, that by a private agree- ment or charter-party, between the owner and the master, the latter is to have the entire ship to his own use for a specified period, and is to make all the repairs at his own expense ; for such a private agreement cannot vary the rights of third per- sons.* Neither will it make any difference as to the liability of the owner, that the master has bound himself personally by a written contract, if such contract does not establish, that an exclusive credit is given to the master ; for, in many cases (as, for example, in the common shipping-articles between the master and seamen for a voyage),^ the owner will be bound by the writ- ten contract of the master in his own name, especially where it is according to the common usage of the employment. Similar considerations apply to the execution of charter-parties, and of ' Abbott on Shipp. Pt. 2, oh. 3, §§ 2, 3 ; Hussey v. Allen, 6 Mass. 163, 165 ; Ricli V. Coe, Cowp. 636 ; Leonard v. Huntington, 15 John. 288 ; Marquand v. Webb, 16 John. 89 ; 3 Chitty on Com. & Manuf. 212 ; Garnham v. Bennett, ' 2 Str. 816 ; James v. Bixby, 11 Mass. 34, 36,; Hussey v. Christie, 9 East, 432 ; 3 Kent, Comm. Lect. 46, p. 161 (4th ed.) ; 1 Bell, Comm. § 434, p. 413 (4th ed.) ; Id. pp. 494, 607, 622-624, 537, 638 (6th ed.). ' See Farmer «. Davis, 1 T. K. 108, 109 ; Muldon v. Whitlock, 1 Cowen, 299. ' See Parmer v. Davis, 1 T. R. 108, 109 ; Muldoii ». Whitlock, 1 Cowen, 299 ; Stewart v. Hall, 2 Dow. 29 ; Abbott on Shipp. Pt. 1, ch. 3, § 7, note (1), (Amer. ed. 1829) ; Id. Pt. 2, ch. 3, § 1, note (1) ; Stewart ». Hall, 2 Dow. 29. ' Rich ». Coe, Cowp. 636. ' Abbott on Shipp. Pt. 2, ch. 3, §§ 2, 3; Pt. 4, ch. 1, § 1; Id. ch. 4, §§ 1, 10, and notes (Amer. ed. 1829) ; The Nelson, 6 Kob. 227 ; Ante, §§ 116, 161, 294. 368 AGENCY. [CH. X. bills of lading, by the master, within the scope of his general author ity.i § 299. On the other hand, if the ship is in the home port of 1 Abbott on Shipp. Pt. 2, ch. 2, § 5 ; ch. 3, §§2,3; Pt. 3, ch. 1, § 2 ; Cock V. Taylor, 13 East, 399 ; Ante, §§ 116, 160, 161, 294 ; Jones o. Littledale, 6 Adolph. & Ellis, 486-490. Lord Mansfield fully expounded this whole doc- trine in Rich v. Coe, Cowp. 636, 639. On that occasion, his Lordship said, " Whoever supplies a ship with necessaries, has a treble security. 1. The per- son of the master._^. The specific ship. 3. The personal security of the own- ers, whether they know of the supply or not. 1. The master is personally liable, as making the contract. 2. The owners are liable, in consequence of the mas- ter's act, because they choose him. They run the risk, and they say whom they will trust with the appointment and office of master. Suppose the owners, in this case, had delivered the value of the goods in question in specie to the mas- ter, with directions for him to pay it over to the creditors, and the master had embezzled the money ; it would have been no concern of the creditors ; for they trust specifically to the ship, and generally to the owners. In this case, the defendants are the owners, and there happens to be a private agreement be- tween them and the master, by which he is to have the sole conduct and manage- ment of the ship, and to keep her in repair, &c. But how does that affect the creditors, who, it is expressly stated, were -total strangers to the transaction? And that is an answer to the observation, that the plaintiff must have known the real situation of the master in this case, from the general usage and custom of the country in that respect. To be sure, if it appeared, that a tradesman had notice of such a contract, and, in consequence of it, gave credit to the cap- tain individually, as the responsible person, particular circumstances of that sort might afford a ground to say, he meant to absolve the owners, and to look singly to the personal security of the master. But here it is stated, that the plaintiff had no notice whatever of the contract. The owners themselves are aware of their being liable at the time. They choose a master, to whom they agree to let the ship ; and trust, for their security, to the covenants, which they oblige him to enter into. These covenants are, that he shall keep the ship in repair, and deliver her up, at the end of the term, in as good condition, as when delivered to him. This is not all ; for they indemnify themselves against the private debts of the master ; and against his being taken in execution ; for if he does not perform all and every the covenants in the agreement (except in case of the loss of the ship), the consequence, besides their remedy against him upon the covenant, is, that the contract and agreement is to be absolutely at an end, and they are to take possession of the ship. Suppose the ship had been im- pounded in the admiralty court, and that had happened at the end of the term ; or suppose the captain had then broken a covenant, which had put an end to the agreement ; the defendants could never have taken the ship out of the court, without paying the debt, for which the ship was impounded. We are all of opinion, therefore, that under these circumstances, there is no color to say, that the creditors should be stripped of the general security, they are by law entitled to, against the owners." See also Abbott on Shipp. Pt. 2, ch. 3, §§ 1, 3, 10; Id. Pt. 4, ch. 4, § 1, note (Amer. ed. 1828) ; Aspinwall v. Bartlett, 8 Mass. §§ 298, 299.] LIABILITIES' TO THIRD PERSONS. 369 the ownfer, and repairs are there made, or supplies furnished, at the request of the master, the mere fact of the presence of the owner in the home port will not exonerate the master from re- sponsibility.^ But, in such a case, if the contract for the repairs or supplies, is directly with the owner, and not with the master, a strong presumption will arise, that credit is given exclusively to the owner, which it would require cogent proofs to rebut or overcome.^ But the like presumption will not arise on a con- tract for seamen's wages, that exclusive credit is given to the 483 ; Farmer v. Davis, 1 T. R. 109. In this last case, Lord Mansfield said, "Where a captain contracts for the use of the ship, the credit is given to him in respect to his contract ; it is given to the owners, because the contract is on their account ; and the tradesman has likewise a specific lien on the ship itself. Therefore, in general, the tradesman, who gives that credit, debits both the captain and the owners. Now, what is this case ? The captain made no con- tract personally. The owners contracted for their ship ; the credit was given to them only, and there is not a shadow of color to charge the captain for any part of these goods." ' Hussey v. Christie, 9- East, 426, 432 ; Hoskins v. Slayton, Cas. Temp. Hard. 376 ; Rich v. Coe, Cowp. 636 ; Abbott on Shipp. Pt. 2, ch. 3, §§ 2-4 ; James v. Bixby, 11 Mass. 34, 36, 37 ; Marquand ». Webb, 16 John. 89 ; Stew- art V. Hall, 2 Dow, 29 ; Farmer v. Davis, 1 T. K. 108. In Hussey v. Christie, 9 East, 432, Lord Ellenborough, in delivering the opinion of the court, said, " If the repairs be done here, the owners are liable ; though the master may also become liable on his own contract, if he do not stipulate against his personal liability, and confine the credit to his owners. K the necessary repairs be done abroad, the master may hypothecate the ship for them ; and it is his own fault, if he subjects himself to any personal responsibility, which he may renounce." In Hoskins v. Slayton, Cas. Temp. Hard. 377, which was the case of sales made for the ship at a home port, and ordered by the master. Lord Chief Justice Lee said, " In general, if the master orders the goods, both are liable ; the master, who gives the orders, and upon whose credit the work is done, and the owners, m respect of the work being done to their property ; for if I, without having given orders, suffer a work to be done for me, I must pay for it. But yet, though both are liable in such a case, if it appears, that the credit was given to the owners only, and that the master, in giving orders, acted merely as their servant, he will not be liable ; " and he directed the jury, that, if, upon the evi- dence, they thought no credit was given to the master, but the owners alone, then they should find for defendant. The jury found a verdict for the defend- ant. See also 1 Bell, Comm. § 434, p. 413, § 435, p. 414 (4th ed.) ; Id. pp. 507,619,520,524 (6th ed.). ' Farmer v. Davis, 1 T. R. 108 ; Ante, §§ 294, 296-298, note ; Hoskins v. Slayton, Cas. Temp. Hard. 376, 377 ; 2 Liverm. on Agency, 267-269 (ed. 1818) ; Abbott on Shipp. Pt. 2, ch. 2, §§ 2-4; James v. Bixby, 11 Mass. 34, 36, 37. ASENCT. 24 370 ■ AGENCY. ■ [CH. X. owner by the crew, from the mere fact that the owner shipped the crew in the home port ; as the shipping articles generally contemplate the contract to be made by and with the master, and the maritime law treats the master, from his direct relation to the crew, as incurring a personal responsibility to them for their wages. It will, of course, under such circumstances, require the most positive and satisfactory proof, omni exceptione major, to sustain a defence by the master, that exclusive credit is given by the crew to the owner for their wages.^ § 300. The liability of agents to third persons on contracts, may also arise from acts done, or refused to be done, by such agents. Thus, for example, if a party who has paid money to an agent for the use of his principal, becomes entitled to recall it, he may upon notice to the agent recall it, provided the agent has not paid it over to his principal, and also provided no change has taken place in the situation of the agent since the payment to him, before such notice.^ The mere fact that the agent has passed such money in account with his principal, or that he has ' Abbott on Shipp. Pt. 4, ch. 4, § 1, and note (2) ; Id. § 10 (Amer. ed. 1829) . See 2 Emerig. Assur. cb. 4, § 12, p. 467. See 1 Bell, Comm. § 435, p. 414 (4tb ed.) ; Id. § 418, p. 398 (4th ed.) ; Id. pp. 507, 608, 519-524 (5tli ed.). ^ Paley on Agency, by Lloyd, 388-394; 3 Chitty on Com. & Manuf. 313; 2 Liverm. on A^ncy, 260, 261 (ed. 1818) ; Cox v. Prentice, 3 M. & Selw. 344 ; Hearsay v. Pruyn, 7 John. 179 ; Mowatt v. M'Lellan, 1 Wend. 173 ; Langley v. Warner, 1 Sandf. Sup. Ct. (N. Y.) 209. In The Bank of United ' States V. The Bank of Washington, 6 Peters, 8, it was held, that where a judg- ment had been recovered for the plaintiff, and the money had been received by the agent, notice to the agent to retain it, the other party intending to bring a writ of error to reverse the judgment, would not, in case of a reversal, justiiy an action against the agent. On that occasion, Mr. Justice Thompson, in de- livering the opinion of the court, said, "When the money was paid, there was a legal obligation, on the part of the Bank of Washington, to pay it ; and a legal right, on the part of Triplett and Neale, to demand and receive it, or to enforce payment of it under the execution. And whatever was done under that execution, whilst the judgment was in full force, was valid and binding on the Bank of Washington, so far as the rights of strangers or third persons ar6 concerned. The reversal of the judgment cannot have a retrospective opera- tion, and make void that which was lawful when done. The reversal of the judgment gives a new right, or cause of action, against the parties to the judg- ment, and creates a legal obligation, on their part, to restore what fhe other party has lost by reason of the errpneous judgment. And as, between the parties to the judgment, there is all the privity necessary to sustain and enforce such right ; but, as to strangers, there is no such privity ; and, if no legal right existed, when the money was paid, to recover it back, no such right could be §§ 299, 300.] LIABILITIES TO THIRD PERSONS. 371 made a rest in his accounts, without any new credit being given to the principal, will not of itself be sufficient to entitle the agent to retain the money, when the party entitled to recall it demands it.^ But if a new credit has been given to the principal since the payment, or if bills have been accepted, or if advances have been made on the footing of it, the payment cannot be recalled.^ A fortiori, if the money has been paid over to the principal before notice of the recall, the agent will not be liable, unless indeed the receipt of the money by the agent was obviously fraudulent and illegal, or his authority to receive it was known to himself to be utterly void.^ created by notice of an intention so to do. Where money is wrongfully and illegally exacted, it is received without any legal right or authority to receive it ; and the law, at the very time of payment, creates the obligation to refund it. A notice of intention to recover back the money does not, even in such cases, create the right to recover it back ; that results from the illegal exaction' of it, and the notice may serve to rebut the inference, that it was a voluntary payment, or made through mistake." But a prize-agent, holding prize proceeds, if he pay over the money after an appeal is entered, pays it over at his own peril ; for the appeal suspends the former sentence. Penhallow v. Doane, 3 Dall. 54. See Bamford v. Shuttleworth, 11 Adolph. & Ellis, 926. ' 3 Chitty on Com. & Manuf. 213 ; Paley on Agency, by Lloyd, 388, 389 ; 2'Liverm. on Agency, 264 (ed. 1818) ; BuUer v. Harrison, Cowp. 665 ; Cox V. Prentice, 3 M. & Selw. 344 ; Langley v. Warner, 1 Sandf. Sup. Ct. (N. Y.) 209. " 3 Chitty on Com. & Manuf. 213 ; Boiler v. Harrison, Cowp. 565 ; Paley on Agency, by Lloyd, 388, 389 ; 2 Liverm. on Agency, 264-266 (ed. 1818) ; Mowatt V. M'Lellan, 1 Wend. 173. ' 3 Chitty on Com. & Manuf. 213 ; Cary «. Webster, 1 Str. 480 ; Campbell ». Hall, Cowp. 204 ; Edwards v. Hodding, 5 Taunt. 516 ; Snowden v. Davis, 1 Taunt. 369 ; Ripley v. Gelston, 9 John. 201 ; Smith on Merc. Law, 80-82 (2d ed.) ; Id. pp. 143, 144 (3d ed. 1843) ; BuUer v. Harrison, Cowp. 666 ; Paley on Agency, by Lloyd, 388-390 ; Seidell v. Peckworth, 10 Serg. & R. 442 ; Frye v. Lockwood, 4 Cowen, 464. Mr. Smith (on Merc. Law, pp. 143-146, 3d ed. 1843), on this subject, says, " If the agent exceed his authority, so that his principal is not bound, he will himself be liable for the damage thus occa- sioned to the other contracting party, although he may have been innocent of any intention to defraud. The question, whether an agent is personally liable for money paid to him for the use of his principal, under circumstances which would entitle some person to recover it from that principal, involves much diffi- culty. In the first place, it is clear, that if the agent have without notice to act otherwise, paid over the money to his principal, he never can be called on to refund it. But in Cox v. Prentice, it was laid down by the court on the authority of BuUer v. Harrison, that an agent who receives money for his prin- cipal, is liable as a principal, so long as he stands in his original situation, and 372 AGENCY. [CH, X. § 301. Various examples might be put to illustrate this doc- trine. Thus, where money has been paid to an agent to avoid an illegal distress or an illegal claim (as to the bailiff of a sheriff, until there has been a change in circumstances by his having paid over the money to his principal, or done what is equivalent to it. In that case, the de- fendant received a bar of silver from his principal, and sold it to plaintiff at a price calculated Trith reference to the number of ounces which, on assay, it was thought to contain ; it turned out afterwards that it contained fewer ounces than had been supposed, and the plaintiff was held entitled to recover the money overpaid from the defendant, who had not yet handed it to his principal, although he had forwarded an account to him in which he was credited with the full sum, but which was still unsettled. In Buller v. Harrison, the defendant was an insurance broker ; and the money, sought to be recovered, was paid by the plaintiff, an underwriter, in discharge of a loss, which turned out to be foul. It will be observed that in neither of these cases could the principal himself, ever, by possibility, have claimed to retain the money for a single instant, had it reached his hands ; the payment having been made by the plaintiff under pure mistake of facts, and being void, ab initio, as soon as that mistake was discovered, so that the agent would not have been estopped from denying his principal's title to the money any more than the factor of J. S., of Jamaica, who has received money paid to him under the supposition of his employer being J. S., of Trinidad, would be estopped from retaining that money against his employer, in order to return it to the person who paid it to him. Besides which, in Buller «. Harrison, had the agent paid the money he received from the underwriter, in discharge of the foul loss, over to his principal, he would have rendered himself an instrument of fraud, which, as we have already seen, no agent can be obliged to do. Except in such cases as these, the maxim, respondeat superior, has been applied, and the agent held responsible to no one but his principal. Thus in Stephens v. Badcock, the defendant, an attor- ney's clerk, having received by his master's orders, rents for the plaintiff, a client ; it was held, that he was not responsible to the plaintiff, though his em- ployer, the attorney, has since become a bankrupt; nor can an action for money had and received be brought against the agent who has received it on behalf of his principal, for the purpose of trying the existence of a right in that principal ; thus the' right of a lord of a manor cannot be tried in an action against his steward for quit-rent voluntarily paid ; and these decisions are but just, since, as the agent is estopped from questioning the title of his principal, he would, but for this rule of respondeat superior, be frequently exposed, with- out any defence, to two different suits, in respect of the same subject-matter. But an agent cannot defend himself even on the ground of payment over to his principal, if he receive money illegally from a party, who is not prevented from suing him by the rule, pari delicto potior est conditio defendentis. This was decided in Miller v. Aris, where the money was received by a jailer from a prisoner for rent for a room illegally let to him, and paid over by the jailer to his employers. Neither do the foregoing remarks extend to cases in which the money gets into the agent's hands, in consequence of a tort committed by him, under the directions of, or jointly with, his principal. Of course, if an §§ 301, 302.] LIABILITIES OP PUBLIC AGENTS. 373 to avoid an illegal distress ; or where money has been paid to a collector for an illegal duty ; and notice of the objection is. given to the agent or collector, before he pays it over), the party paying it may recover it back from the agent or collector, notwithstand- ing he has since paid it over to the principal.^ But, if the illegality is unknown to the agent, and no objection of that sort is made before he has paid over the money, he will not be liable therefor.2 CHAPTER XI. LIABILITIES OF PUBLIC AGENTS ON CONTRACTS. [* § 302. Agent contracting in behalf of the government, or of the public, ordinarily not personally bound. 303. Same principle applies to contracts under seal, executed by agents of governments in their own names, purporting to be on behalf of government. 304. Also as to promise to pay balance due third party. agent pay money to his principal, which was not intrusted to him for that pur- pose, he will not be discharged; ex gr., if a stakeholder pay over the deposit before the condition on which it was to become due is performed." ' Post, § 307 ; Snowden v. Davis, 1 Taunt. 369 ; Edwards v. Hodding, 6 Taunt. 815 ; Ripley v. Gelston, 9 John. 201 ; Bank of United States v. Bank of Washington, 6 Peters, 8, 18 ; Tracy u. Swartwout, 10 Peters, 80 ; EUiot v. Swartwout, 10 Peters, 137 ; Prye v. Lookwood, 4 Cowen, 464 ; 2 Liverm. on Agency, 262-264 (ed. 1818) ; Smith on Merc. Law, 82 (2d ed.) ; Id. Pt. 1, ch. 5, § 7, pp. 143-146 (3d ed. 1843) ; Bend v. Hoyt, 13 Peters, 263 ; Allen ». M'Keen, 1 Sumner, 277, 278, 317; Miller v. Aris, 3 Esp. 231; s. c, cited Selwyn's Nisi Prius, 93 (8th ed.) ; Paley on Agency, by Lloyd, 393, 394. Mr. Paley has remarked, in p. 389, " It seems, however, that the right to recover against the agent is to be understood with some qualification. For it has been held, that an action will not lie against a mere collector or receiver, for the purpose of trying a right in the principal, even though he have not paid over the money. It is said in one case, that if the defendant can show the least color of right in his principal, it is sufficient. And Lord Chief Justice Lee declared, that the right to an inheritance should not be tried in an action for money had and received, brought against the receiver. In a case where the question was much considered, it was held, that an action could not be sup- ported against a steward for quit-rent voluntarily paid, in order to bring the lord's right in question, but that it must be against the lord." » Ibid. ; Snowden v. Davis, 1 Taunt. 359 ; Edwards v. Hodding, 5 ib. 816. 374 AGENCY. [CH. XI. 305. No suit lies against officer of government by third party for refusing to pay over money received by such officer to pay over to such third party. 306. This general rule as to agents is founded on presumption, and may be rebutted by circumstances, showing an intention between the parties to rely on the per- sonal responsibility of the agent. 307. Money obtained from third persons by public officers, illegally, but under color of office, may be recovered back from them under certain circumstances. 307 a. Government or other public authority not bound by unauthorized acts or repre- sentations of its agents ; distinction in this respect between pubHc and private agents.] § 302. Hitherto we have been considering the personal lia- bility of agents on contracts with third persons, in cases of mere private agency. But a very different rule, in general, prevails in regard to public agents ; for, in the ordinary course of things, an agent, contracting in behalf of the government, or of the public, is not personally bound by such a contract, even though he would be by the terms of the contract, if it were an agency of a private nature.^ The reason of the distinction is, that it is not to be pre- sumed, either that the public agent means to bind himself person- ally, in acting as a functionary of the government, or that the party dealing with him in his public character means to rely upon his individual responsibility .^ On the contrary, the natural pre- sumption in such cases is, that the contract was made upon the credit and responsibility of the government itself, as possessing an entire ability to fulfil all its just contracts, far beyond that of any private man ; ^ and that it is ready to fulfil them not only with good faith, but with punctilious promptitude, and in a spirit ' Maobeath v. Haldimand, 1 T. E. 172 ; Bowen v. Morris, 2 Taunt. 374, 387 ; Unwin u. Woolseley, 1 T. K. 674 ; Brown v. Austin, 1 Mass. 208 ; Dawes V. Jackson, 9 Mass. 490 ; Walker v. Swartwout, 12 John. 444 ; 2 Liverm. on Agency, 269-280 (ed. 1818) ; Ghent v. Adams, 2 Kelly, 214 ; Copes v. Matthews, 10 Sm. & Mar. 398 ; Parks v. Boss, 11 How. 362 ; 3 Chitty on Com. & Manuf. 213, 214; Paley on Agency, by Lloyd, 376, 377; Bainbridge v. Downie, 6 Mass. 253 ; Fox v. Drake, 8 Cow. 191 ; Osborne ». Kerr, 12 Wend. 17 ; Jones V. La Tombe, 3 Dall. 384 ; Eathbone v. Budlong, 16 John. 1 ; Mott v. Hicks, 1 Cow. 513 ; Sheffield ». Watson, 3 Caines, 69 ; Bronson v. Woolsey, 17 John. 46 ; Hodgson v. Dexter, 1 Cranch, 345, 363, 364 ; Post, § 306, note ;, Bernard V. Torrance, 6 Gill & John. 383 ; Enloe v. Hall, 1 Humph. (Tenn.) 303; Tutt V. Hobbs, 17 Mo. 486 ; Miller v. Ford, 4 Rich. 376 ; Dwinelle v. Henriquez, 1 Cal. 387 ; Ogden v. Raymond, 22 Conn. 379 ; Nichols v. Moody, 22 Barb. 611 ; Hammarskold v. Bull, 11 Rich. 493. " 2 Kent, Comm. Lect. 41, pp. 632, 633 (4th ed.). » Tippets V. Walker, 4 Mass. 696, 597 ; 2 Kent, Comm. Lect. 41, pp. 632, 633 (4th ed.). §§ 302, 303.] LIABILITIES OP PUBLIC AGENTS. 375 of liberal courtesy. Great public inconveniences would result from a different doctrine, considering the various public function- aries, which the government must employ, in order to transact its ordinary business and operations ; and many persons would be deterred from accepting important offices of trust under the gov- ernment, if they were held personally liable upon all their official contracts.^ Take one example only : Every officer in the army or navy, from the commander-in-chief downwards, who should enter into any official contract, or give any orders, which should involve a contract, as, for example^ a contract for supplies, or for provi- sions, or for military materials, might be held personally liable thereon, to his utter ruin.^ By parity of reasoning, upon any such contract, entered into by a public agent on behalf of the government, no suit lies by him ; but it must be brought in the name of the government, against the other contracting party .^ § 303. This principle not only applies to simple contracts both parol and written, but also to instruments under seal, which are executed by agents of the government in their own names, and purporting to be made by them on behalf of the government ; for the like presumption prevails in such cases, that the parties con- tract, not personally, but merely oflScially, within the sphere of their appropriate duties.* Thxis, a charter-party, sealed and exe- cuted by a public ofi&cer in his own name, but describing himself as acting on behalf of the king or government, for purposes con- nected with the public service, has been held not to bind him personally, but to be merely obligatory upon the government.^ ' Macbeath v. Haldimand, 1 T. R. 172, 181, 182 ; Hodgson v. Dexter, 1 Cranch, 345, 363, 364 ; Jones v. La Tombe, 3 Dall. 384 ; Reed v. Conway, 26 Mo. 13. ' Macbeath v. Haldimand, 1 T. K. 172, 180-182 ; Hodgson v. Dexter, 1 Cranch, 346, 363, 364 ; Bronson v. Woolsey, 17 John. 46 ; Belknap v. Reinhart, 2 Wend. 375. ' Bainbridge v. Downie, 6 Mass. 253 ; Bowen v. Morris, 2 Taunt. 374 ; Irish V. Webster, 5 Greenl. 171. * 3 Chitty on Com. & Manuf. 213, 214 ; Stinchfield v. Little, 1 Greenl. 231 ; Macbeath v. Haldimand, 1 T. R. 172, 181, 182 ; Hodgson v. Dexter, 1 Cranch, 346, 363, 364 ; Osborne v. Kerr, 12 Wend. 179 ; Walker v. Swartwout, 12 John. 444; Bowen v. Morris, 2 Taunt. 379 ; Smith on Merc. Law, B. 1, eh. 5, § 7, pp. 141, 142 (3d ed. 1843). [In Hodges v. Runyan, 30 Mo. 491, this rule was applied to a note given by " R., trustee," on behalf of the trustees of a school district.] " Unwin V. Woolseley, 1 T. R. 674, 678; Walker v. Swartwout, 12 John. 444. >» 376 AGENCY. [CH. ZI. So, an indenture, executed between A. B., describing himself as " secretary of war," of the one part, and 0. D. of the other part, for a demise of certain buildings for public purposes, and for a certain period, and containing a covenant, on the part of A. B., to pay the stipulated rent during that period, has been held not to bind A. B. personally ; but to bind the government alone.^ § 304. The same principle applies to cases, where public offi- cers, contracting for a public purpose, afterwards, upon a settle- ment of accounts with the other contracting party, strike a balance, and in writing promise to pay that balance on a specific day, signing their names, with their official designations annexed, as, for example, as commissioners ; for such a written document is quite consistent with an intention not to incur any personal responsibility ; but merely to apply the public funds, which might be in their hands at the time prescribed, towards the discharge of the public debt.^ § 305. The same principle applies to the case, where a public officer receives moneys officially, for the purpose of applying the same to the discharge of the debts, or allowances, of the govern- ment ; for, in such a case, he acts merely as an agent of the gov- ernment, and the only obligation or duty, which arises, is to the government, from his official character ; and not any personal responsibility to third persons. Hence, it has been held, that no suit will lie against a person, who is secretary of war, for refus- ing to pay over moneys, which he has received to distribute among certain claimants, as retiring allowances, bestowed upon them by the bounty of the government.^ ' Hodgson V. Dexter, 1 Cranch, 345, 363, 364. ' Fox V. Drake, 8 Cowen, 191. In this case it was said that he would be personally liable, if he had public funds in his hands at the time. But see post, § 305, note. ' Gidley v. Lord Palmerston, 3 Brod. & Bing. 275. On the occasion of delivering the opinion of the court in Gidley v. Lord Palmerston, Lord Chief Justice Dallas said, " On these facts, the question arises, whether, upon all or any of the counts in the declaration, the present action can be maintained; and we think, that it cannot be maintained. It is not pretended, that the defendant is to be charged in respect of any express undertaking, or agreement, be- tween him and the testator, or in respect of any other character than his public and official character of secretary at war. It is in that character, and in that only, that his duty is alleged to arise ; being, therefore, a duty as between him and the crown only, and not resulting from any relation to, or employment by, the plaintiff, or under any undertaking in any way to be personally responsible §§ 303-306.] LIABILITIES OP PUBLIC AGENTS. 377 § 306. But, although this is the general rule in relation to public agents, yet it is founded upon a mere presumption, and is liable to be rebutted by circumstances, which clearly establish to Hm. The money received is granted by the crown, subject only to the disposition or control of the defendant, as the agent or officer of the crown, and responsible to the crown for the due execution of the trust or duty so com- mitted. There is, therefore, no duty, from which the law can imply a promise to pay the testator, during his life, or to his executor after his death ; nor can money be said to have been had and received to the use of the testator, which money belonged to the crown, being received as the money of the crown, and the party receiving it being responsible only to the crown in his public character. On this view of the case, it appears to us, that this action cannot be maintained. But it must fail also on another and a wider ground. This is an action brought against the defendant, as paymaster-general, for an alleged breach of an im- plied undertaking, said to attach upon him in that character. With reference to this ground, it will be sufficient to advert to a class of cases, too well known and established to require to be more particularly mentioned, and which in substance and result, have established, that an action will not lie against a public agent for any thing done by him in his public character, or employment, though alleged to be, in the particular instance, a breach of such employment, and constituting a particular and personal liability. Such persons, said Lord Mansfield, in one of the cases cited at the bar, are not understood personally to contract ; and, in the same case, it was observed, by Mr. Justice Ashurst, ' In great questions of policy, we cannot argue from the nature of private agreements.' ' Great inconveniences would result from considering a governor, or commander, as personally responsible.' ' No man would accept of any office or trust under government upon such conditions. And, indeed, it has frequently been determined, that no individual is answerable for any engage- ments, which he enters into on their behalf. There is no doubt, but the crown will do ample justice to the plaintiff's demands, if they be well founded.' Mr. Justice BuUer, in the case, added, ' Where a man acts as agent for the public, and treats in that capacity, there is no pretence to say, that he is personally liable.' And, in a subsequent case, it is held, that a servant of the crown, contracting on the part of the government, is not personally answerable. I am aware that these cases are not, in their circumstances, precisely similar to the present ; and, perhaps, in respect of some of the circumstances belonging to the present case, I may personally have doubted longer than, I am now satis- fied, I ought to have done. But, in their doctrine, they go to this, that, on principles of public policy, an action will not lie against persons, acting in a public character and situation, which, from their very nature, would expose them to an infinite multiplicity of actions ; that is, to actions at the instance of any person, who might suppose himself aggrieved. And, though it is to be presumed, that actions improperly brought would fail, and, it may be said, that actions properly brought should succeed ; yet, the very liability to an unlimited multiplicity of suits would, in all probability, prevent any proper or prudent person from accepting a public situation, at the hazard of such peril to himself." But see Myrtle v. Beaver, 1 East, 135 ; Rice v. Chute, 1 East, 579 ; Freeman 378 AGENCY. [CH. XI. an intention between the parties to the contract to create and rely upon a personal responsibility on the part of a public agent.^ For there is nothing in the general principles or policy of the law, which forbids an agent from waiving his official immunity, and from making himself personally responsible on any contract, made for and on behalf of the government. Where it is not known to the other party, that the agent is acting for the public, it may fairly be presumed, that he intends to trust to the personal credit and responsibility of the agent, even although it may not be to his exclusive credit and responsibility.^ But the same result may arise, where there is an express personal respon- sibility, incurred by a known public agent; or where it may fairly be implied from all the attendant circumstances.^ In cases of such an implied responsibility, the proofs ought to be exceed- ingly cogent and clear, in order to create such personal responsi- bility in a known public agent, and to repel the presumption of law, that he contracts only on the credit of the government.* [It is, however, as in other cases, a question for the jury, to whom was the credit given.^] The same principle, with the same qualifications, prevails in the Scottish law. A public V. Otis, 9 Mass. 272 ; Fox v. Drake, 8 Cowen, 191 ; Ante, § '304, and note. QucBre, if a writ of mandamus might not lie, in such a case, to compel the officer to pay over the public funds in his hands, if appropria/ted to that pur- pose? See Kendall, Postmaster-General, ». United. States, 12 Pet. 527. There is some difficulty in reconciling all the authorities, as to the non-payment of moneys in their hands, and other omissions of duty by public officers ; and as to the point how far, and when they are responsible to third persons. See Rowning v. Goodchild, 3 Wilson, 443 ; 8. o. 5 Burr. 2716 ; Stock v. Harris, 6 Burr. 2709 ; Barnes v. Foley, 5 Burr. 2711 ; Bend. v. Hoyt, 13 Pet. 263. ' Copes V. Matthews, 10 Sm. & Mar. 398. [* Johnson v. Common Council, 16 Ind. 227 ; Sanborn v. Neal, 4 Min. 126.] = Swift V. Hopkins, 13 John. 313. ' Macbeath v. Haldimand, 1 T. B,. 172, 180, 182 ; GiU v. Brown, 12 John. 385 ; Freeman v. Otis, 9 Mass. 272. * Ibid. ; Bainbridge v. Downie, 6 Mass. 253 ; Freeman v. Otis, 9 Mass. 272 ; Dawes V. Jackson, 9 Mass. 490 ; Osborne v. Kerr, 12 Wend. 179 ; Belknap ». Reinhart, 2 Wend. 375 ; Fox v. Drake, 8 Cowen, 191. It seems almost im- possible to reconcile the case of Sheffield v. Watson, 3 Caines, 69, with the principles here laid down ; or, indeed, with the general bearing of the other authorities on this subject. Indeed, it was shaken to its foundation by the decision in Walker v. Swartwout, 12 John. 444, 448. See 2 Liverm. on Agency, 273-279 (ed. 1818). ' Brown v. Rundlett, 16 N. H. 360 ; Hammarskold v. Bull, 9 Rich. 484. §§ 306-307 a.] liabilities op public agents. 379 agent is not ordinarily liable on a contract made by him on behalf of the government; but he may, if he pleases, incur a personal liability on such contract ; and he will be deemed so to intend, when he draws a bill or note in his own name under the contract.^ § 307. Where, however, money is obtained from third persons, by public officers, illegally, but under color of office, it may be recovered back from them, if notice has been given by the party, at the time, to the officer, although the money has been paid over to the government ; and if it has not been paid over, but it remains in the officer's hands, it may be recovered back, even without notice.^ And it will make no difference in the case, that the payment was originally made under a misconception or misconstruction of the law, by both or by either of the parties.® We shall hereafter have occasion to examine, how far, and under what circumstances, public agents are liable for their own torts, and for the torts of sub-agents employed by or under them.* § 307 a. In respect to the acts and declarations and represen- tations of public agents, it would seem that the same rule does not prevail, which ordinarily governs in relation to mere private agents. As to the latter (as we have seen), the principals are in many cases bound, where they have not authorized the declara- tions and representations to be made.^ But, in cases of public agents, the government, or other public authority, is not bound, unless it manifestly appears that the agent is acting within the scope of his authority, or he is held out as having authority to do the act, or is employed, in his capacity as a public agent, to make the declaration or representation for the government. Indeed, this rule seems indispensable, in order to guard the public against losses and injuries arising from the fraud or mistake, or rashness ■ Thomson on Bills of Exchange, 229, 230 (2d ed. 1836). ' Ante, § 301 ; Barnes v. Foley, 6 Burr. 2711 ; Frye v. Lockwood, 4 Cowen, 454 ; Tracy v. Swartwout, 10 Pet. 80 ; Elliot v. Swartwout, 10 Pet. 137 ; Rip- ley V. Gelston, 9 John. 201 ; Ante, § 300, and note. See Bend v. Swartwout, 13 Pet. 263. ' Barnes v. Foley, 5 Burr. 2711 ; Tracy v. Swartwout, 10 Pet. 80 ; Elliot v. Swartwout, 10 Pet. 137 ; Ripley v. Gelston, 9 John. 201 ; Ante, § 300, and note. See Bend v. Swartwout, 13 Pet. 263. • Post, §§ 320-322. ■ * Ante, §§ 126, 133, 134. 380 AGENCY. [CH. XI. and indiscretion of their agents.^ And there is no hardship in requiring from private persons, dealing with public officers, the duty of inquiry, as to their real or apparent power and authority to bind the government. ' Lee V. Munroe, 7 Crancli, 366. [* A statute limiting the amount of an expenditure is notice in law and in fact to the contractor that the officers of the government cannot exceed the prescribed bounds. If they are exceeded, the claimant must be deemed to have gone beyond the fixed limit at his own risk. Curtis V. United States, 2 Nott & Hun. Ct. of Claims, 144 ; Baltimore v, Reynolds, 20 Md. 1 ; State v. Hastings, 10 Wis. 518 ; Hull v. County of Marshall, 12 Iowa, 142. Where a public agent contracts by a writing showing on its face that he acts officially, though he does not add his official designation to his signature, he is not bound personally. Lym v. Adamson, 7 Clarke (Iowa), 509. By the law of agency at the common law there is this difference be- tween individuals and the government : the former are liable to the extent of the power they have apparently given to their agents, while the government is liable only to the extent of the power it has actually given to its officers. Per Loring, J., Pierce v. United States, 1 Nott & Hun. Ct. of Claims, 270. The question how far a public officer makes himself personally responsible for the performance of a contract which he makes in his official capacity, but which fails to bind the municipality on whose behalf he assumed to act, by reason of some informality in the proceedings of such officer, is extensively discussed by Bennett, J., in Ives v. Hulet, 12 Vt. 314, and by Chief Justice Williams, dissenting from the opinion of the court, by which the officer was held personally responsible. It has always seemed to us, that the result of all the cases upon this point would not involve a known public officer in any personal responsibility, where he was understood to be acting in his official capacity and not intending to assume any personal responsibility, and all the facts in regard to the extent of his authority were made known to the party with whom he contracted at the time of the contract, or where the authority was matter of public record and personally known to the other party. In such cases the promisee must take the risk of the promissor being able to find his principal. But the case is very different, where the officer takes upon himself the pei> formance of the requisite formalities to give effect to his contract, or assumes to bind his principal without disclosing his authority. And it is upon these latter grounds that the above case was decided in favor of the party claiming the personal responsibility of the officer.] §§ 307 a, 308.] liability op agents foe torts. 381 CHAPTER XII. liability op agents foe toets. [* § 308. Principal liable to third persons for the misfeasances, negligences, and omissions of duty of agent acting within the scope of his agency. 309. Agent personally liable to third persons for his positive torts. 310. Cases illustrating the non-liability of agents for their nonfeasances and omissions of duty, except to their own principals. 311. Principal cannot confer upon agent any right to commit a tort. 312. If principal is a wrong-doer, the agent participating in his acts is a wrong-doer also. 313. Agent ordinarily not liable for the misfeasance or negligence of those whom he has employed for his principal with his authority. 314. Exception in the case of masters of ships. 315. Master of general or carrier ship, as well as owner, treated as common carrier. 816. Same principle applies in the case of master of steamboat engaged in transpor- tation of passengers. 317. Same rule adopted by modem commiercial nations of continental Europe. 318. Master of a ship not responsible for wilful trespasses and injuries done by persons under him, but not ordered by him, nor in the course of duty devolved on such persons. 319. Neither the government, nor generally public officers and agents are responsible for the misfeasances, nonfeasances, or omissions of duty of the sub-agents or other persons properly employed under them. 319 a. Similar rule in the case of subordinate officers acting under tlje head of a depart- ment. 319 6. But sub-agents and others employed under the superior officers are personally re- sponsible to third persons for losses by reason of their negligence. 320. A fortiori the same rule applies where they are guilty of positive wrongs in the > discharge of their official functions. 321. Rule exempting public agents applies to agents deriving theu: authority from pub- lic bodies or general laws. 322. Same doctrine applied to public officers acting in the army or navy.] § 308. We come, in the next place, to the consideration of the liability of agents to third persons, in regard to torts or wrongs done by them in the course of their agency ; and this liability may be either of private agents or of public agents. Let us first consider that of private agents. And here the distinction ordi- narily taken is between acts of misfeasance or positive wrongs and nonfeasances or mere omissions of duty by private agents. The law upon this subject as to principals and agents, is founded upon the same analogies as exist in the case of masters and servants. The master is always liable to third persons for the misfeasances and negligences and omissions of duty of his ser- vant, in all cases within the scope of his employment.^ So the ' Paley on Agency, by Lloyd, 396, 397, and notes ; Id. 306, 306 ; Com. 382 AGENCY. [CH. XII. principal, in like manner, is liable to third persons for the like misfeasances, negligences, and omissions of duty of his agent leaving him to his remedy over against the agent in all cases where the tort is of such a nature as that he is entitled to com- pensation.i And this liability is not limited to principals who Dig. Action on the Case for Negligence, A. 2, A. 5, A. 6 ; 3 Chitty on Com. & Manuf. 214 ; Story on Bailm. § 400 ; Morse «. Slue, 1 "Vent. 238 ; Clarke V. City Corporation of Washington, 12 Wheat. 40; Eandleson v. Murray, 3 Nev. & Periy, 239 ; s. c. 8 Adolph. & Ellis, 109 ; Ante, § 217. > Lane v. Cotton, 12 Mod. 488, 489; Perkins v. Smith, Sayer, 40, 41; Post, §§ 452, 467. See also Quarman v. Burnett, 6 Mees. & Wels. 499; Priestly v. Fowler, 3 Mees. & Wels. 1 ; Milligan v. Wedge, 12 Adolph. & Ellis, 737, 742 ; Schieffelin v. Harvey, 6 John. 170 ; Post, §§ 452-457 ; United States V. Halberstadt, 1 Gilp. 262. As to the cases in which a principal may recover compensation from his agent, for the tort of the latter, see Farebrother V. Ansley, 1 Campb. 343 ; Paley on Agency, by Lloyd, 162, 163 ; Ante, § 201. As to the cases in which an agent may, or may not, recover compensation for torts done by authority of his principal, see 2 Liverm. on Agency, 321-325 (ed. 1818) ; Merryweather v. Nixon, 8 T. K. 186 ; Farebrother «. Ansley, 1 Campb. 343 ; Stephens v. Elwall, 4 M. & Selw. 259, 261 ; Martyn v. Bhthman, Yelv. 197 ; Fletcher v. Harcott, Hutton, 65 ; Adamson v. Jarvis, 4 Bing. 66. In this last case. Lord Chief Justice Best, in delivering the opinion of the court, said, "Auctioneers, brokers, factors, and agents do not take regular indemnities. These would be indeed surprised, if, having sold goods for a man, and paid him the proceeds, and having suffered afterwards in an action at the suit of the true owners, they were to find themselves wrong-doers, and could not recover compensation from him who had induced them to do the wrong. It was certainly decided in Merryweather v. Nixon, that one wrong- doer could not sue another for contribution. Lord Kenyon, however, said, ' that the decision would not affect cases of indemnity, where one man employed another to do acts, not unlawful in themselves, for the purpose of asserting a right.' This is the only decided case on the subject, that is intelligible. There is a case of Walton v. Hanbury and others, but it is so imperfectly stated that it is impossible to get at the principle of the judgment. The case of PhilUps V. Briggs was never decided. But the court of chancery seemed to consider the case of two sheriffs of Middlesex, where one had paid the damages in an action for an escape, and sued the other for contribution, as like the case of two joint-obligors. From the inclination of the court on this last case, and from the concluding part of Lord Kenyon's judgment in Merryweather i). Nixon, and from reason, justice, and sound policy, the rule, that wrong-doers cannot have redress, or contribution, against each other, is confined to cases, where the person seeking redress must be presumed to have known that he was doing an unlawful act. If a man buys the goods of another, fi:om a person who has no authority to sell them, he is a wrong-doer to the person whose goods he takes ; yet, he may recover compensation against the person who sold the goods to him, although the person who sold them did not undertake that he § 308.] LIABILITY OP AGENTS FOR TORTS. 383 are mere private persons, but extends also to private corporations, for the misfeasances, negligences, and omissions of 'duty of their agents, in the course of their employment, whenever they are duly appointed.! [A telegraph company is liable for damages caused by the negligence of their agent in transmitting a mes- sage. Thus, where L. sent a message to D. for "two hand bouquets," and the operator transmitted the message to D. for "two hundred bouquets," whereby D. was put to loss, it was held, that the company were liable.^ So also public or municipal corporations are liable for injuries to third persons, resulting from the negligence of subordinate oflBcers or agents acting under their authority and direction, in the construction of public improvements belonging to such corporations.^ In such cases, the maxim, respondeat superior, properly applies, in the same had a right to sell, and did not know that he had no right to sell. That is proved by Medina v. Stoughton, Sanders v. Powell, Crosse o. Gardner, and many other cases. These cases rest on this principle, that, if a man having the possession of property, which gives him the character of owner, affirms that he is owner, and thereby induces a man to buy, when, in point of fact, the affirmant is not the owner, he is liable to an action. It has been said that he is, because there is a breach of contract to rest the action on, and that there is no contract in this case. This is not the true principle. Ifis this : he who affirms, either what he does not know to be true, or knows to be false, to another's- prejudice and his own gain, is, both in morality and law, guilty of falsehood, and must answer in damages." ' Yarborough v. Bank of England, 16 East, 6 ; Smith v. The Birmingham Gas Company, 1 Adolph. & Ellis, 626 ; Green v. London Omnibus Co. 7 J. Scott, 290 ; Whitfield v. South East Railway, 1 Ellis, Bl. & El. 116 ; Scott v. Mayor of Manchester, 1 Hurl. & Nor. 69 ; 2 id. 204; Salem Bank d. Gloucester Bank, 17 Mass. 1 ; Foster v. Essex Bank, 17 Mass. 479 ; Riddle «. Proprietors of Locks and Canals on Merrimack River, 7 Mass. 169 ; Townsend v. Susque- hannah Turnpike Road, 6 John. 90 ; Gray ». Portland Bank, S Mass. 364 ; Fowle ». Common Council of Alexandria, 3 Peters, 398, 409 ; Rabassa v. Orleans Navigation Co. 6 Miller, La. 463, 464; 2.Kent, Comm. Lect. 33, p. 283 (4th ed.) ; Goodloe v. City of Cincinnati, 4 Hamm. Ohio, 600 ; Hay v. Cohoes Co. 3 Barbour, Sup. Ct. (N. Y.) 42. [* But merely permitting a person to continue to do, at the request of third parties, acts which he was formerly employed to do by a corporation, after the termination of his employment by such corpora- tion, does not render the corporation liable for injuries suffered on account of his carelessness, provided the person injured had notice that his employment by the corporation had ceased. Flint v. Gloucester Gas Light Co. 9 Allen, 662.] [= New York & Wash. Print. Tel. Co. v. Dryburgh, 36 Penn. St. 298.] [' See Scott v. Manchester, 1 Hurl. & Nor. 69, affirmed in Exchequer Cham- ber, 2 id. ; Lloyd v. Mayor of New York, 1 Seld. 369.] 384 AGENCY. [CH. XII. manner and to the same extent as in its application to the lia- bilities of private individuals. But where such agent or officer, although appointed by the corporation, performs duties for or between individuals, in which the corporation has no interest, no such liability arises, and the ofi&cer alone is responsible.^] The agent is also personally liable to third persons for his own mis- feasances and positive wrongs .^ But he is not, in general (for there are exceptions^), liable to third persons for his own non- feasances or omissions of duty, in the course of his employment.* His liability, in these latter cases, is solely to his principal ; ^ there being no privity between him and such third persons, but the privity exists only between him and his principal.^ And hence the general maxim as to all such negligences and omissions of duty, is, in cases of private agency, respondeat superior!' [' Dayton u. Pease, 4 Ohio St. 80.] ' Story on Bailm. § 404; Post, § 320 ; BeU v. Joslyn, 3 Gray, 309. ' Post, §§ 314, 815. * Paley on Agency, by Lloyd, 296-399 ; Lane v. Cotton, 12 Mod. 488 ; s. c. 1 Ld. Raym. 646, 665; 3 Chitty on Com. & Manuf. 214; Story on Bailm. §§ 400, 404, 507 ; Perkins v. Smith, Sayer, 40, 42. [= See Henshaw ». Noble, 7 Ohio St. 231.] " Paley on Agency, iJy Lloyd, 395-397, and notes ; Lane v. Cotton, 12 Mod. 488 ; s. c. 1 Ld. Raym. 646, 665 ; Perkins v. Smith, Sayer, 40, 42 ; Cameron ». Reynolds, Cowp. 403 ; Kowning ». Goodchild, 5 Burr. 2721 ; s. C. 3 Wils. 464 ; Story on Bailm. §§ 402, 404 ; Smith on Merc. Law, 82 (2d ed.) ; Id. 145, 146 (3d ed. 1843) ; Morse v. Slue, 1 Vent. 238 ; Quarman v. Burnett, 6 Mees. & Wels. 499 ; Rapson v. Cubit, 9 Mees. & Wels. 710 ; Stone v. Cartwright, 6 T. R. 411 ; Milligan v. Wedge, 12 Adolph. & Ellis, 737 ; Winterbottom v. Wright, 10 Mees. & Wels. 109, 111; Ante, §§ 201, 217 a; Post, §§ 462, 453, 453 a, 453 6, 453 c, 454 a. ' Lord Holt, in his celebrated judgment in Lane v. Cotton, 12 Mod. 488, expounded this doctrine at large. "It was objected at the bar" (said he), " that they have this remedy against Breese. I agree, if they could prove that he took out the bills, they might sue him for it ; so they might anybody else, on whom they could fix that fact. But, for a neglect in him, they can have no remedy against him ; for they must consider him only as a servant ; and then his neglect is only chargeable on his master or principal ; for a servant or deputy, guaterms such, cannot be charged for neglect, but the principal only shall be charged for it. Biit, for a misfeasance, an action will lie against a servant or deputy, but not quatemus a deputy or servant, but as a wrong-doer. As, if a bailiff, who has a warrant from the sheriff to execute a writ, suffer his prisoner by neglect, to escape, the sheriff shall be charged for it, and not the bailiff. But, if the bailiff turn the prisoner loose, the action may be brought against the bailiff himself; for then he is a kind of wrong-doer, or rescuer; and §§ 308-310.] LIABILITY OP AGENTS FOR TORTS. 385 Whether the agent has been guilty of negligence or not, is not ordi- narily a question of law, but of fact, under all the circumstances.^ § 309. The distinction, thus propounded, between misfeasance and nonfeasance, — between acts of direct, positive wrong and mere neglects by agents as to their personal liability therefor, may seem nice and artificial, and partakes, perhaps, not a little of the subtilty and over-refinement of the old doctrines of the common law. It seems, however, to be founded upon this ground, that no authority whatsoever from a superior can fur- nish to any party a just defence for his own positive torts or trespasses ; for no man can authorize another to do a positive wrong.2 -g^^^ in respect to nonfeasances or mere neglects in the performance of duty, the responsibility therefor must arise from some express or implied obligation between particular parties standing in privity of law or contract with each other ; and no man is bound to answer for any such violations of duty or obliga- tion, except to those to whom he has become directly bound or amenable for his conduct. Whether the distinction be satis- factory or not, it is well established, although some niceties and diflBtculties occasionally occur in its practical application to par- ticular cases. § 310. It may be useful to illustrate each of these propositions by some cases which have been treated. as clear, or which have undergone judicial decision. And, in the first place, as to the non-liability of agents for their nonfeasances and omissions of duty, except to their own principals. Thus, if the servant of a common carrier negligently loses a parcel of goods, intrusted to him, the principal, and not the servant, is responsible to the bailor or the owner.^ So, if an under-sheriff is guilty of a negli- it will lie against any other, that will rescue in like manner. And for this diver- sity, vide 1 Leon. 146 ; 3 Cro. 143, 176 ; 41 Ed. 3, 12 ; 1 Ro. 78 ; which is not well reported, but the inference may be well made from it." s. c. 1 Ld. Eaym. 646, 653. See also Morse v. Slue, 1 "Vent. 238, 239 ; Hall v. Smith, 2 Bing. 267 ; Bradford u. Eastburn, 2 Wash. Cir. 219 ; Denny v. Manhattan Company, 2 Denio, 116 ; Ante, §§ 201, 217 a; Ppst, §§ 452-461. ' Foot V. Wiswall, 14 John. 304 ; Savage v. Birckhead, 20 Pick. 167. ' Paley on Agency, by Lloyd, 396-398 ; 3 Chitty on Com. & Manuf. 214 ; Perkins v. Smith, 1 Wilson, 328 ; s. c. Sayer, 41 ; 2 Liverm. on Agency, 257, 258 (ed. 1818) ; Stephens v. Elwall, 4 Maule & Selw. 269 ; Farebrother v. Ansley, 1 Campb. 343 ; Morse v. Slue, 1 Vent. 238. ' 3 Chitty on Com. & Manuf. 214 ; Lane v. Cotton, 12 Mod. 488. AGENCY. 25 386 AGENCY. [CH. XII. gent breach of duty, an action lies by the injured party against the high sheriif, and not against the deputy personally, for his negligence.^ So, if the servant of a blacksmith so negligently conducts himself in shoeing a horse, that the horse is conse- quentially injured, or afterwards becomes lame, the master, and not the servant, will be liable for the negligent injury.^ But, if the servant, in shoeing the horse, has pricked him, or has mali- ciously or wantonly lamed him, an action will lie personally against the servant himself.^ So, the mere omission of a servant to deliver goods intrusted to him by his master, when demanded by the real owner, will not amount, to a conversion of the goods, if, at the time, the servant states his want of authority to deliver them, and he has no knowledge of the true ownership.* So, it has been said, if an agent is guilty of any deceit or fraud or false warranty, in the business or employment of his principal, as, if he knowingly sells or warrants corrupt wines, or other things fraudulently disguised, for and by the authority of his principal, " he is not personally responsible therefor to the buyer ; but his master alone is liable.^ But it may well be doubted whether an agent can shelter himself from personal responsibility, where he thus directly and knowingly co-operates in a deceit or misrepre- sentation or fraud, to the injury of a third pex'son, although he is ' Cameron v. Reynolds, Cowp. 403 ; Paley on Agency, 396, 397, and notes. See Morse v. Slue, 1 Vent. 238. ' 1 Black. Comm. 431 ; Story on Bailm. §§ 400, 402. See Paley on Agency, by Lloyd, 397, and note ; Post, § 453. In 2 Black. Comm. 431, it is laid down, " If a smith's servant lames a horse, while shoeing him, an action lies against the master, and not against the servant." The law, as thus laid down, has been doubted by some commentators. See Paley on Agency, by Lloyd, 397, note (e), and Mr. (now Mr. Justice) Coleridge's edition of 2 Blackstone's Comm. 431, note. The doubt seems to be foimded upon this : whether it is not an act of misfeasance, and not merely negligence. See 1 Chitty's Black. Comm. 431, note. The question, after all, may turn mainly upon this, whether the injury be direct or consequential only.' See also Hay v. Cohoes Co. 8 Barbour, Sup. Ct. (N. Y.) 43. 3 Story on Bailm. §§ 402, 409 ; Paley on Agency, by Lloyd, 397, and note. 4 Alexander v. Southey, 6 B. & Aid. 247 ; Mires v. Solebay, 2 Mod. 242. ' Roll. Abridg. Action on the Case, 95, T. 1. 20 ; 1 Com. Dig. Action on the Ca^e for Deceit, B.; 3 Chitty on Com. & Manuf. 214; Paley on Agency, by Lloyd, 152 ; Id. 30. See Southerne v. How, Cro. Jac. 468 ; 2 MoUoy, Jur. Marit. B. 3, ch. 8, § 6 ; s. c. Bridgman, 126, 127 ; Hern v. Nichols, Salk. 289; Grammar v. Nixon, 1 Str. 653 ; Paley on Agency, by Lloyd, 398, 399, and note. §§ 310-312.] LIABILITY OP AGENTS FOR TORTS. 387 authorized to do so by his principal ; for it is an illegal act, and contrary to sound morals.^ § 311. In the next place, as to the liability of agents to third persons for their own misfeasances and positive wrongs. In all such cases (as we have seen), the agent is personally responsible, whether he did the wrong intentionally or ignorantly, by the authority of his principal ; for the principal could not confer on him any authority to conimit a tort upon the rights or the prop- erty of another.^ Thus, if goods are delivered by the owner to A. to keep ; if he delivers them to B. to keep to the use of A., and B. wastes or destroys them, the owner may have an action for the tort against B., although the bailment was not made to him by the owner ; for B. is a wrong-doer.^ So, if A. delivers his horse to a blacksmith, and he delivers him to another blacksmith, who wantonly lames him, A. may have an action against the latter ; notwithstanding A. did not authorize the bailment, for he is a wrong-doer.* § 312. A fortiori, if the principal is a wrong-doer, the agent, however innocent in intention, who participates in his acts, is a wrong-doer also. Thus, if an auctioneer should be employed by a sheriff to sell goods at auction, which he had unlawfully seized upon an execution, as if the goods did not belong to the execu- tion debtor, the auctioneer who should sell, would be liable to an action for the tortious conversion, equally with the sheriff.^ So, ' 19 Hen. 6, 53 ; Com. D. Action on the Case for Deceit, B ; Story on Equity Pleadings, § 232 ; 1 Story on Equity Jurisp. §§ 191, 192, 204 ; Paley on Agency, by Lloyd, 886 ; Ante, § 308. ^ Ante, § 309 ; Paley on Agency, by Lloyd, 398, 399 ; Lane «. Cotton, 12 Mod. 488; Perkins v. Smith, 1 wils. 328; s. c. Sayer, 40, 42; Bush v. Stein- man, 1 Bos. & Pull. 404, 410 ; Kichardson v. Kimball, 28 Maine, 464. ' 1 Roll. Abridg. Action swr Case, 90, O. 1, 1. 15; 3 Chitty on Com. & Manuf. 214 ; Paley on Agency, by Lloyd, 307. * 1 Roll. Abridg. Action sur Case, p. 90, O. 2, 1. 20 ; Paley on Agency, by Lloyd, 396, 397 ; Ante, § 310. ' Farebrother v. Ansley, 1 Campb. 343 ; Adamson v. Jarvis, 4 Bing. 66 ; Post, § 339. See Van Brunt v. Schenk, 11 John. 877. Li this latter case, there had been a seizure of a ship by a revenue officer, for a supposed breach of law, and pending the proceedings under the seizure, he allowed another offi- cer to take possession of, and use the ship. Afterwards, upon the trial, the ship was acquitted ; but the court granted a certificate of probable cause of seizure. The owner of the ship brought an action of trespass against the officer who had used the ship, and the court held that trespass did not lie. The court seem to 388 AGENCY. [CH. Xll. if the agent of a merchant who has received goods from a bank- rupt after a secret act of bankruptcy, should, pursuant to orders from his principal, sell the goods, an action of trover would lie in favor of the assignees against the agent, however ignorant he might be of the defect of title ; for a person is guilty of a con-, version who intermeddles with the property of another, without due authority from the true owner ; and it is no answer, that he acted as an agent, under the a\ithority of a person supposed at the time to be entitled as the owner.^ § 313. But no action will ordinarily lie against an agent for the misfeasance, or for the negligence of those whom he has retained for the service of his principal, by his consent or au- thority, any more than it will lie against a servant who hires laborers for his master at his request, for their acts; unless, indeed, in either case, the particular acts which occasion the damage are done by the orders or directions of such agent or servant.^ The action, under other circumstances, must be brought either against the principal or against the immediate actors in the wrong.* § 314. There is, however, one important exception to the rule already stated as to the non-liability of agents to third persons have thought, that the seizure, being made for a supposed breach of law, di- vested the possession of the owner. The same decision was made in Barrett v. Warren, 3 Hill, 348. But Mr. Justice Cowen doubted the correctness of the doctrine, in a very elaborate opinion. Qucere, whether, the possession of the owner would be divested by the illegal seizure of the sheriff so as to take away the right to maintain trespass against a subsequent holder under the sher- iff. There is no doubt, that trover would lie in such a case. But trespass will lie against a mala fide purchaser, and against a second trespasser, who takes by trespass from the first. Ibid. ; Acker v. Camp. 23 Wend. 372 ; Wilbraham ■0. Snow, 1 Siderf. 488. 1 Stevens v. Elwall, 4 M. & Selw. 259 ; Sharland v. Mildon, 5 Hare, 469; Paley on Agency, by Lloyd, 399, 400 ; Perkins ». Smith, Sayer, 40, 42 ; s. c. 1 Wilson, 328 ; McCombie v. Davies, 6 East, 538 ; Baldwin v. Cole, 6 Mod. 212. 2 Paley on Agency, by Lloyd, 402; Stone ». Cartwright, 6 T. R. 411; 3 Chitty on Com. & Manuf. 214. See Hills v. Ross. 3 Ball. 831 : Nicholson V. Mounsey, 15 East, 383, 887, 388. See ante, §§ 201, 217 a, 313, 321, 322. 3 Stone V. Cartwright, 6 T. K. 411 ; Brown v. Lent, 20 Vt. 632 ; Bush ». Steinman, 1 Bos. & Pull. 404 ; Denison v. Seymour, 9 Wend. 8, 12 ; Kapson o. Curbitt, 9 Mees. & Wels. 710 ; Quarman v. Burnett, 6 Mees. & Wels. 710; Reedie v. London and Northwestern Railway Co. 4 Wels., Hurlstone & Gor- don, 265 ; Post, §§ 454, 454 a. §§ 312-314] LIABILITY OP AGENTS FOE TOETS. 389 for the negligences and omissions of duty of tliemselves and of their sub-agents, founded upon the principles of the maritime law. It is the case of masters of ships, who, although they are the agents or servants of the owners, are also, in many respects, deemed to he responsible, as principals, to third persons, not only for their own negligences and nonfeasance, but also for the negligences, nonfeasances, and misfeasances of the subordinate ofiScers and others employed by and under them.^ We have already seen, that the master of the ship is responsible upon con- tracts made by him in regard to the usual employment of the ship, and also upon contracts made by him for the repairs and necessaries supplied for the ship, as well as for the wages of the seamen employed in navigating the ship.^ This liability is founded upon the doctrine of the maritime law, which treats the master, not merely as an agent contracting on his own behalf, as well as for the owner, but which, upon a broader policy, treats him as in some sort a subrogated principal and qualified owner of the ship, possessing authority in the nature of the exercitorial power for the time being.^ And his liability founded upon this consideration, extends not merely to his contracts, but (as we have said) to his own negligences and nonfeasances and mis- feasances, as well as to those of his officers and crew.* His responsibility for the officers and crew has this additional reason for its support, that he is thus induced to exercise a superior watchfulness over their acts and conduct ; and, if he were not so ■ Post, §§ 316, 317. ' Ante, §§ 36, 116, 117, 294-300. ' Ante, §§ 36, 116, 117, 294, 295. Lord Hale, in Morse v. Slue, 1 Vent. 238 ; s. c. 1 Mod. 85 (which was an action on the case against the master of a ship, for negligence in the carriage of goods, whereby they were stolen), in allusion to this point, said, "It is objected, that the master is but a servant to the owners. Answer. The law takes notice of him as more than a servant. It is known, that he may impawn the ship, if occasion be, and sell bona peritura. He is rather an officer than a servant." He added, " By the civil law, the master or owner is chargeable, at the election of the merchant." See also Molloy, B. 2, ch. 2, § 2. See also Dig. Lib. 5, tit. 9, 1. 1, § 2. See post, § 317, note, and ante, §§ 36 and 116. ' Paley on Agency, by Lloyd, 398 ; Abbott on Shipp. Ft. 2, ch. 2, § 2 ; Id. Pt. 3, ch. 3, § 3 ; Id. Ft. 2, ch. 4, § 1, and notes (Amer. edit. 1829) ; Pur- viance v. Argus, 1 Dall. 184, 186 ; 2 Valin, Lib. 2, tit. 7, art. 4, p. 171 ; Deni- son V. Seymour, 9 Wend. 1, 8, 15 ; Schieffelin v. Harvey, 6 John. 170 ; Ante, §§ 294, 295, 308, 317, note. 390 AGENCY. [CH. XII. made liable for their acts and conduct, he might often, by his connivance in their frauds, misfeasances, negligences, or non- feasances subject the shippers of goods, as well as the owners of the ship, to great losses and injuries, without their having any adequate redress.^ The policy of the maritime law has therefore indissolubly connected his personal responsibility with that of all the other persons on board, who are under his command, and are subjected to his authority. § 315. Hence it is that the master of a general or carrier ship, as well as the owner, is treated as a common carrier. He is responsible for the goods in the like manner as any other com- mon carrier ; and nothing will discharge him from his responsi- bility to the owners of the goods, but a loss by some act of Providence or by some inevitable casualty or by some public enemy .^ If the goods therefore are injured or perish by the negligence or misfeasance of the crew, or if they are stolen, the master, as well as the owner, is severally liable therefor.^ § 316. Upon the same ground, the master of a steamboat em- ployed in the transportation of passengers, is, like the master of a vessel engaged in the merchant service, held liable for the misfeasance and negligence and want of care of all the persons, ofiicers, and crew to whom the management of the steamboat is intrusted. And this rule is applied without any distinction, whether the officers and crew are appointed by the owners or by himself.* Therefore, where, by the negligence of the pilot of a steamboat, who was appointed by the owner, a collision took place, whereby another vessel was run down and sunk while the ' Abbott on Shipp. Ft. 3, ch. 3, § 3 (Amer. edit. 1829) ; Ante, §§ 116, 117, 298-806. = Morse v. Slue, 1 Vent. 288 ; MoUoy, B. 2, ch. 2, § 2. ' Abbott on Shipp. Ft. 3, ch. 3, § 3, ch. 4, § 1 (Amer. edit. 1829) ; Morse V. Slue, 1 Vent. 238 ; MoUoy, B. 2, ch. 2, § 2 ; Schieffelin v. Harvey, 6 John. 170, 176 ; Watkinson v. Laughton, 8 John. 213, 216. In Abbott on Shipp. Pt. 3, ch. 3, § 3, p. 222 (Amer. edit. 1829), it is said, "As soon as any goods are put on board, the master must provide a sufficient number of persons to protect them ; for, even if the crew be overpowered by a superior force, and the goods stolen, while the ship is in a port or river within the body of a county, the master and owners will be answerable for the loss, although they have been guilty of neither fraud nor fault ; the law, in this instance, holding them re- sponsible, from reasons of public policy, and to prevent the combinations, that might otherwise be made with thieves and robbers." Ante, § 315. ■* Foot V. Wiswall, 14 John. 804 ; Denison v. Seymour, 9 Wend. 8. §§ 314^316.] LIABILITY OP AGENTS FOR TOETS. 391 pilot was at the helm navigating the boat, he having the exclu- sive control and direction of her course, it was held, that the master of the boat was responsible in damages for the injury by the collision.^ ' Denison v. Seymour, 9 Wend. 8, 15. Mr. Chief Justice Savage in deliv- ering the opinion of the court, went into an elaborate examination of the authorities, and then added, "Were this an action against the master of a vessel engaged in the merchant service, it seems to be conceded by all the cases that he would be liable. In such cases, the master is responsible for the dili- gence of all to whom is intrusted the management of the vessel. On the other hand, were the action against the captain of a ship-of-war, the case of Nichol- son V. Mounsey proves that the captain is not responsible for the negligence of the other officers. For this exemption, two reasons seem to be assigned ; one is, that the captain and his officers are all appointed by the same authority, and the captain cannot appoint or remove his inferior officers ; the other reason is, that the captain is not a volunteer in the station where he is found. He is obliged from the office which he holds, to take command of any vessel to which he may be assigned, with such other officers and crews as he may find there, and make the best of them. A steamboat, for the transportation of passengers with their baggage, and for carrying small freight, is a merchant vessel ; and, though the pilots are appointed by the owners, and not by the captain, yet the captain is a volunteer in that service, in the language of Lord Ellenborough. The steamboat service is not like the naval service of a nation. No captain is bound to engage as such ; he has a choice, whether he will serve with such persons as the owners choose to put on board as officers. He knows the responsibility of master of a vessel, and if he is unwilling to be responsible for the negligence of the subordinate officers, he is under no compulsion to serve there himself. If he accepts the office of master of the vessel, he does so with the knowledge of the responsibility which, as such, he incurs. If the owner of a merchant ship were to stipulate with the master that he should take certain persons for his mates, that, I apprehend, would not alter his responsibility to third persons, however it might affect his responsibility to the owner. On the whole, I am of opinion, that the fact of the pilot being chosen by the owners does not alter the law as to the captain's responsibility. Suppose the owners should contract, not only with the pilots, but with all the hands on board, through the agency of some other person besides the captain, as they probably do, would the captain, therefore, become entirely irresponsible ? And must any one whose vessel has been run down where a totally irresponsible person was at the wheel, bring his suit against a common sailor ? The owners of a vessel may not be known ; they may be residents of a foreign country. It would be adding insult to in- jury, to say to a man, whose property had been destroyed, that he has his rem- edy against a common sailor, or the owners, who, perhaps, live in Europe. My opinion is, that the master of a steamboat is liable like the master of a merchant ship ; and that the circumstance of the pilot's being appointed by the owners does not discharge that liability, so far as third persons are concerned." See also Nicholson v. Mounsey, 15 East, 384. See Abbott on Shipp. Pt. 2, 392 AGENCY. [CH. XII. § 317. The same rule is adopted in the maritime jurisprudence of the modern commercial nations of continental Btirope, it having been derived from the same common source, — theKoman law.^ By this law, the praetor gave a remedy against the master and employers of ships, where they had received goods as carriers, and had not safely delivered them. " Ait praetor (says the Digest), nautae, caupones, stabularii, quod cujusque salvum fore reciperint, nisi restituent, in eos judicium dabo." ^ The reason assigned in the Digest, is precisely that which governs in the policy of modern maritime nations ; that is to say, the necessity of placing coniidence in the masters and crews of ships, and the impossibility of shippers of goods being otherwise secure against the injuries sustained by them from the negligences, misfeasances, and frauds of the masters and crews. " Maxima utilitas est hujus edicti ; quia necesse est plerumque eorum fidem sequi, et res custodiae eorum committere. Ne quisquam putet graviter hoc adversus eos constitutum ; nam est in ipsorum arbitrio, ne quem recipiant. Et nisi hoc esset statutum, matei;ia daretur cum furibus adversus eos, quos recipiunt, coeundi ; cum ne nunc quidem abstineant hujusmodi'fraudibus." ^ ch. 7, §§ 1-9, p. 173 (Shee's edit. 1840), and Lacey v. Ingram (1840), Exch. cited in the Addenda trfthe same edition. ' Rocc. de Nav. u. 3, 19, 56, 27, 69, 62, 68 ; 2 Emerig. ch. 4, § 10, p. 448, &c., 2 Valin, Comm. Liv. 3, tit. 7, art. 4, p. 161 ; Pothier, Charte Partie, u. 46 ; Post, § 458 ; 1 Stair's Instit. by Brodie, B. 1, tit. 12, § 28 ; 1 Bell, Comm. § 500, p. 456 (4th ed.) ; Id. §§ 501, 602, pp. 469-471 ; Id. §605, pp. 473, 474; Id. pp. 465-476 (6th ed.). ' Dig. Lib. 4, tit. 9, Introd. ; Pothier, Pand. Lib. 4, tit. 9, n. 1, 2. The Digest has explained who are meant by nautce, in this place. The word em- braces, in its most extensive signification, all those who are employed in the navigation of the ship. But it is here used in a more restrictive sense, as in- cluding properly the employer of the ship, commonly called the exerciior, an appellation which sometimes is applied to the master, although it is generally used in contradistinction to him. Thus, Ulpian says, "Ait Prastor; nautse; nautam accipere deb emus eum, qui navem exercet; quamvis nautse appellantur omnes, qui navis navigandse causa in nave sint. Sed de exercitore solummodo priEtor sentit. Nee enim debet (inquit Pomponieus), per remigem, aut meso- nautam obligari ; sed per se, vel per navis magistrum ; quanquam si ipse alicui e nautis committi jussit, sine dubio debeat obligari." Dig. Lib. 4, tit. 9, 1. 1, § 2; Pothier, Pand. Lib. 4, tit. 9, u. 2. See also Dig. Lib. 47, tit. 5, 1. 1; Pothier, Pand. Lib. 47, tit. 6, n. 1, 2, 3, 8, 10; Dig. Lib. 14, tit. 1, 1. 1, § 2. See 2 Emerigon, ch. 4, § 10, p. 448, &c. ; Post, § 458. • Dig. Lib. 4, tit. 9, 1. 1, § 1 ; Pothier, Pand. Lib. 4, tit. 9, n. 1. §§ 317-319.] LIABILITY OF AGENTS FOR TOETS. 393 § 318.. The master of a ship, however, is not, any more than the owner thereof, responsible for wilful trespasses and injuries, done by the persons employed under him, which acts were not ordered by him, or were not in the course of the duty devolved upon such persons.^ In all such cases, the proper remedy is against the immediate wrong-doers, for their own misconduct. [As a general rule, a principal who neither authorizes or ratifies a wilful trespass committed by his agent, is not liable therefor. Nor is a corporation liable for a wilful trespass of a person em- ployed by it,2 although the act be sanctioned by some of its man- agers ; as where the plaintiff's boat was run into and damaged by the wilful act of the master of the boat belonging to the cor- poration, and the trespass was sanctioned by a person who was president of the corporation and its general ageut.^] § 319. In the next place, as to the liability of public agents for torts or wrongs done in the course of their agency. It is plain, that the government itself is not responsible for the misfeasances, or wrongs, or negligences, or omissions of duty of tlie subordinate officers or agents employed in the public service ; for it does not undertake to guarantee to any persons the fidelity of any of tlie officers or agents, whom it employs ; since that would involve it, in all its operations, in endless embarrassments, and difficulties, and losses, which would be subversive of the public interests ; and, indeed, laches are never imputable to the government.* Our next inquiry, therefore, is, whether the heads of its depart- ments, or other, superior functionaries, are in a different predica- ment. And here the doctrine is now firmly established (subject to the qualifications hereinafter stated), that public officers and agents are not responsible for the misfeasances, or positive wrongs, or for the nonfeasances, or negligences, or omissions of duty of the sub-agents, or servants or other persons properly employed by and under them, in the discharge of their official duties. Thus, for example, it is now well settled, although it was formerly a matter of learned controversy, that the postmaster- ' Bowcher v. Noidstrom, 1 Taunt. 568. ' See Eastern Counties Railway Co. v. Broom, 6 Exch. 314 ; 2 Eng. Law and Eq. 406. ' Vanderbilt v. Richmond Turnpike Co. 2 Comst. (N. Y.) 479. See also Hipp V. The State, 6 Blackf. 149. * See Seymour v. Van Slyck, 8 Wend. 403, 422 ; United States v. Kirkpat- rick, 9 Wheat. 720, 723. 394 AGENCY. [CH. XII. general is not liable for any default, or negligence, or misfeasance of any of the deputies or clerks employed under him in his office.^ This exemption is founded upon the general ground, ' Lane «. Cotton, 1 Ld. Raym. 646; s. c. 12 Mod. 482; Whitfield «. Le Despencer, Cowp. 764; 1 Bell, Comm. § 401, p. 377 (4th ed.) ; Id. p. 468 (5tli ed.) ; 3 Chitty on Com. & Manuf. 214; Post, §§ 321, 822. Lord Holt differed from this opinion in Lane v. Cotton ; but the doctrine of the other judges was afterwards affirmed in Whitfield v. Le Despencer, Cowp. 764. The principles involved in the discussion are thus shortly stated in Story on Bailm. § 462. " In the year 1699 an action was brought against the postmaster-gen- eral for the loss of a letter containing exchequer bills, by the negligence of his servants and deputies ; and three judges against Lord Holt held, that the plain- tiff was not entitled to recover. The ground of the opinion of the three judges appears to have been, that the post-office establishment is a branch of the public police, created by statute for purposes of revenue, as well as for public convenience, and that the government have the management and control of the whole concern. It is, in short, a government instrument, established for its own great purposes. The postmasters enter into no contract with individ- uals, and receive no hire, like common carriers, in proportion to the risk and value of the letters under their charge, but only a general compensation from government. The same question was again still more elaborately discussed in a case in the time of Lord Mansfield, brought against the postmaster-general to recover the amount of a bank-note stolen out of a letter by one of the sorters of letters, when the court adhered to the doctrine of the three judges against the opinion of Lord Holt. Upon that occasion Lord Mansfield said, " The ground of Lord Holt's opinion in that case is founded upon comparing the situation of a postmaster to that of a common carrier, or the master of a ship taking' goods on board for freight. Now, with all deference to so great an opinion, the comparison between a postmaster and a, carrier, or a master of a ship, seems to me to hold in no particular whatever. The postmaster has no hire, enters into no contract, carries on no merchandise or commerce. But the post-office is a branch of revenue, and a branch of police, created by act of par- liament. As a branch of revenue there are great receipts ; but there is like- wise a great surplus of benefit and advantage to the public, arising from the fund. As a branch of police, it puts the whole correspondence of the country (for the exceptions are very trifling) under government, and intrusts the man- agement and direction of it to the crown, and the officers appointed by the crown. There is no analogy, therefore, between the case of the postmaster and a common carrier.'' In truth, in England and in America, the postmasters are mere public officers, appointed by the government ; and the contracts, made by them officially, are public, and not private contracts ; binding on the gov- ernment, and not on themselves personally. Ante, §§ 302-306 ; Dunlop ». Monroe, 7 Cranch, 242, 269 ; Post, §§ 321, 322. [ * The exact extent of this exception of public officers under government is somewhat doubtful. It ap- pears now clear that trustees acting gratuitously for the public benefit do not come within it. Mersey Docks v. Gibbs, 14 W. R. 872. The exception is §§ 319, 319 a.] LIABILITY OP AGENTS FOB TORTS. 395 that he is a public officer, and that the whole establishment of the post-office being for public purposes, and the officers employed therein being appointed under public authority, it would be against public policy to make the head of the department per- sonally responsible for the acts of all his subordinate officers ; since it would be impracticable for him to supervise all their acts ; and discouragements would thus be held out against such official employment in the public service.^ § 319 a. Similar considerations apply to deputy postmasters [to contractors for carrying the public mail ^j , and other subordi- nate officers acting under the head of a department, who are compelled, in the course of their official duties, to employ sub- agents, and clerks, and servants, in the public service.^ They are not responsible, either to the government itself, or to third persons, for the misfeasances, or negligences, or omissions of duty of the sub-agents, clerks, and servants so employed under them, unless, indeed, they are guilty of ordinary negligence at least, in not selecting persons of suitable skill, or in not exercising a rea- sonable superintendence and vigilance over their acts and doings.* In this respect, their responsibility does not seem to differ from that of private agents, who employ sub-agents at the request of their principals.^ Indeed, for many purposes, the deputy post- masters are treated as principals, and substantially, as indepen- dent officers of the government.® most correctly considered merely an exemplification of the rule that an action for tort must be brought either against a principal or against the immediate actors in the wrong. It cannot be brought against intermediate agents.'' Solicitor's Journal and Reporter, 1868, p. 981.] ' Ibid. See Seymour v. Van Slyck, 8 Wend. 403, 422 ; United States v. Kirkpatrick, 9 Wheat. 720, 725 ; Post, §§ 820-322. ' Hutchins V. Brackett, 2 Foster, 252 ; Conwell v. Voorhees, 13 Ohio, 523. ' Rowning v. Goodchild, 3 Wilson, 443 ; Stock v. Harris, 5 Burr. 2709 ; McMillan v. Eastman, 4 Mass. 378 ; Story on Bailm. § 463 ; 4 Bell, Comm. § 401, p. 377 (4th ed.) ; Id. p. 468 (6th ed.) ; Whitfield v. Le Despencer, Cowp. 754, 765 ; Schroyer v. Lynch, 8 Watts, 456. ' Dunlop V. Munroe, 7 Cranch, 242, 269. In this case, the very point was not positively decided, but the court intimated an opinion to this effect ; and it seems a just inference from the principles applicable to the subject. See Story on Bailm. § 463; 2 Kent, Comm. Lect. 40, pp. 610, 611 (4th ed.). * Ante, § 313. " Supra, note (2). 396 AGENCY. [CH. XII. § 319 h. But although neither the government nor its Superior officers, are responsible to third persons for misfeasances, or negligences, or omissions of duty of the subordinates in office, properly or necessarily employed under them, it by no means follows that such subordinates are themselves exempted from all personal responsibility therefor to third persons. On the con- trary, the very consideration, that the pxiblic superiors are not responsible for the acts and omissions of their subordinates in their official conduct, distinguishes the case from that of mere private agencies, and lets in the doctrine, that, under such cir- cumstances, they shall be held personally responsible therefor to third persons, who are injured thereby. Thus, for examplOj deputy postmasters are held responsible to third persons, for any injuries or losses sustained by the latter, from the personal negh- gence or omissions of such deputy postmasters.^ § 820. A fortiori, the same rule applies to cases where the sub- ordinate officers of the government are guilty of direct misfea^ sauces or positive wrongs to third persons in the discharge of their official functions ; for, in such cases, they incur the same personal responsibility, and to the same extent, as private agents.!' This is founded upon a very plain principle of common sense and common justice ; and that is, that no person shall shelter himself from personal liability, who does a wrong, under color of, but without any authority, or by an excess of his authority^ or by a negligent use or abuse of his authority. Where a per- son is clothed with authority, as a public agent, it cannot be presumed, that the government means to justify, or even to ex- cuse, his violations of his own proper duty, under color of that authority. And, in cases of this sort, it is not sufficient for public agents to show, that they have acted hond fide, and to the best of their skill and judgment ; for they are bound also to con- > Rowning v. Goodchild, 3 Wilson, 443 ; 8. c. 5 Burr. 2715, 2716 ; 2 W. Black. 906 ; 3 Chitty on Com. & Manuf. 214 ; Paley on Agency, by Lloyd, 398, and note. In Whitfield v. Le Despencer, Cowper, 765, Lord Mansfield said, "As to an action on the case lying against the party really offending, there can be no doubt of it ; for, ■whoever does an act, by which another per- son receives an injury, is liable, in an action, for the injury sustained. If the man who receives a penny to carry the letters to the post-oflace loses any of them, he is answerable ; so is the sorter in the business of his department. So is the postmaster, for any fault of his own.'' » Ante, §§ 308, 311 ; Bayley v. Mayor of New York, 3 Hill, 531. §§ 319 6-321.] LIABILITY OF AGENTS FOE TORTS. 397 duct themsolves with reasonable skill and diligence in the ' execution of their trust.^ Therefore, where commissioners, ap- pointed to pave certain streets, under an act of parliament, grossly exceeded their powers, by raising the street in front of the plaintiff's house, so as to obstruct the passages to the house, as well as the lights thereof; it was held, that they were liable to an action on the case for damages.^ But, if there has been no misfeasance or negligence, and no excess of authority, by public agents, in the execution of their duty, then they will not be liable, although a party may have sustained damages in consequence of their acts.^ j § 321. The rule, which we have been considering, that where persons are acting as public agents, they are responsible only for their own misfeasances and negligence, and (as we have seen*) not for the misfeasances and negligences of those who are employed under them, if they have employed persons of suitable skill and ability, and have not co-operated in or authorized tlie wrong, is not confined to public officers, or agents of the govern- ment, properly so called, in a strict legal sense ; but it equally applies to other public officers or agents, engaged in the public service, or acting for public objects, whether their appointments emanate from particular public bodies, or are derived from gen- eral laws, and whether those objects are of a local or of a gen- eral nature. For, if the doctrine of respondeat superior were applied to such agencies, it would operate as a serious discourage- ment to persons who perform public functions, many of which are rendered gratuitously, and all of which are highly important to the public interest.^ In this respect, their case is distinguish- ' Jones V. Bird, 6 B. & Aid. 837, 845. '^ Leader v. Moxton, 3 Wils. 461; s. c. 2 W. Black. 924; Hall v. Smith, 2 Bing. 166. See also Governor and Company of Plate Manufacturers v. Meredith, 4 T. R. 794. ' Governor and Company of Plate Manufacturers v. Meredith, 4 T. R. 794. See Callender v. Marsh, 1 Pick. 418. * Ante, § 319. ' Hall v. Smith, 2 Bing. 156. [In the late case of Scott u. The Mayor of >. Manchester, 1 Hurl. & Nor. 61, PoUock, C. B., said, "I do not mean to say that the decision in Hall v. Smith was not a correct one, but more was said than was necessary for the decision of the case.] Harris v. Baker, 4 M. & Selw. . 27 ; Bayley v. The Mayor of New York, 3 Hill, 531 ; Ante, §§ 319, 319 a. The judgment of the court, in the case of Hall v. Smith, delivered by Lord Chief Justice Best, is very instructive, and states the ground of the distinction 39.8 AGENCY. [CH. XII. able from that of persons acting for their own benefit, or employ- ing others for their own benefit.^ But the party who suffers the injury under such circumstances, is not without redress ; for he with great clearness and force. " If commissioners under an act of parliament," said he, " order something to be done which is not within the scope of their authority, or they are themselves guilty of negligence in doing that which they are empowered to do, they render themselves liable to an action ; but they are not answerable for the misconduct of such as they are obliged to employ. If the doctrine of respondeat superior were applied to such commissioners, who would be hardy enough to undertake any of those various offices, by which much valuable yet unpaid service is rendered to the country ? Our public roads are formed and kept in repair, our towns paved and lighted, our lands drained and protected from inundation, our internal navigation has been improved, ports have been made and are kept in order, and many other public works are conducted by commissioners, who act spontaneously. Such commissioners will act no longer, if they are to make amends, from their own fortunes, for the conduct of such as must be employed under them. It would be much better that an individual, injured by the act of an agent, should endure an injury un- redressed, than that the zeal of the most useful members of the community should be checked, by subjecting them to a responsibility for agents, from whose services they derive no benefit, and who are seldom under the immediate control of their employers, whilst they are employed on the works they are ordered to do. The commissioners, taking the advice of their surveyors and engineers, are to direct what tunnels, or other works, are to be made. Few commissioners know how such works should be executed ; they ought not, therefore, to be answerable for an imperfect execution of them ; nor can it be expected that they shall attend, day by day, to see that proper precautions are taken against accidents, or to get up in the night to see that lights are burned, to warn passengers of the danger from temporary obstructions in the roads. If, by taking their office of commissioners, they have not undertaken the per- formance of these duties, with what justice can they be charged with the con- sequences of the neglect of them ? The maxim of respondeat superior is bottomed on this principle, that he who expects to derive advantage from an act, which is done by another for him, must answer for any injury which a third person may sustain from it. This maxim was first applied to public officers by the statute of Westminster 2, c. 11, from the words of which statute it is taken. ' Si custos gaolje non habeat, per quod justicietur, vel unde solvat, respondeat superior suus, qui custodiam hujusmodi gaolse sibi commisit.' The terms of the statute of Westminster the second, embrace only those who delegate the keep- ing of jails to deputies, and were intended only, as Lord Coke tells us, to apply ' to those who, having the custody of jails of freehold or inheritance, commit the same to another, that is not sufficient.' The principle of ihe stat- ute has, however, since been extended to sheriffs, who are responsible for their Hall V. Smith, 2 Bing. 166 ; Harris v. Baker, 4 M. & Selw. 27. § 321.J LIABILITY OF AGENTS FOE TOETS. 399 may maintain a suit against the immediate wrong-doer.^ Upon this ground it has been held, that the trustees of a public turn- pike are not liable for the misfeasances or negligences of sub- under-sheriffs and bailiffs ; but has not been applied to any other public officer. Although the office of sheriffs be now a burdensome one, yet they are entitled to poundage, and other fees, for acts done by their officers, which in old time, might be a just equivalent for their responsibility. In Bowcher v. Noidstorm, Lawrence, J., mentions the case of the captain of the Russell, man-of-war, who was held answerable for the act of one of the lieutenants, who had the command of the watch, in running down an Indiaman, whilst the captain was asleep in his cabin. When or by whom that case was decided, I do not know ; but it is supported by no other decision, that I am aware of, and its authority is shaken by the judgment of the case in which it is cited. The actions in the cases of Leader v. Moxon, Jones v. Bird, and the Plate-Glass Company v. Meredith, were not brought against the commissioners, but against those who did the acts complained of. In the latter case I adverted to that circumstance, as distinguishing it from Sutton v. Clarke. If the counsel, who advised the bringing these actions, had thought they could have been maintained against the commissioners, who gave the orders for the works, that occasioned the injuries of the plaintiffs, the commissioners would have been included. Schinotti v. Bumsteed is distinguishable from this case. There, the negligence was brought home to the commissioners of the lottery, who were the defendants, and they were compensated for their services, and were bound to pay due attention to their duty. The commissioners here had authority to make the trench, which occasioned the damage to the plaintiff. The Plate-Glass Company v. Meredith, already referred to, shows that no action could be maintained against them for what they are authorized to do, although an individual sustain an injury from what has been done. The passage into the plaintiff's premises, in that case, was rendered impassable with carts, by the raising of pavement, by the order of the commissioners. Lord Kenyon says, 'If this action could be maintained, every turnpike act, paving act, and navigation act, would give rise to an in finity of actions. The parties are without remedy, provided the commissioners do not exceed their jurisdiction.' In Sutton v. Clarke, the defendant, as a trustee under a turnpike act, who was duly authorized to make a drain, had ordered such drain to be cut in an improper manner ; he had, however, given this order after having taken the best advice that could be obtained. Lord Chief Justice Gibbs considered that circumstance as distinguishing the case from that of the British Plate-Glass Company, where what was done could not be done in any other manner than that in which it was done. But still his lord- ship and the rest of the court held, that as the defendant acted according to the best of his judgment, and with the best advice, he was not answerable for the injury ; and he added, ' This case is perfectly unlike that of an indi- ' Ibid. ; Jones v. Bird, 6 B. & Aid. 837 ; Nicholson v. Mounsey, 16 East, 34; Ante, §§ 313, 319 6. 400 AGENCY. [CH. XH. agents employed by them in the performance of their duty, unless they have directed the act to be done, or have personally co-oper- ated in the negligence.^ vidual who makes an improvement on his own land, from which an injury accrues to another ; such person must answer for the injury, because he was acting for his own benefit.' In Harris and Cross v. Baker, the clerk to com- missioners for making a road, under an act which contained a clause directing actions to be brought against such clerk for acts done by the trustees, was holden not to be liable to an action for an injury sustained, in consequence of heaps or dirt being left by the side of the road, and no lights being placed to enable persons to avoid such heaps. In this case there was, as in that now before us, great negligence in those employed by the frustees. From these cases I collect, that the law recognizes the principles, which, I venture to state, were founded in sound policy and justice, and that no action can be maintained against a man acting gratuitously for the public for the consequences of any act which he was authorized to do, and which, so far as he is concerned, is done with due care and attention, and that such a person is not answerable for the negligent execution of an order properly given." Ante, §§ 319, 319 a. ' Duncan i). Findlater, 6 Clarke & Fin. 903, 910. In this case, the question came from Scotland, and it was held by the house of lords, that the English law and Scottish law upon this subject were precisely the same. Lord Cotting- ham on that occasion reviewed the decisions of both countries; and said, "It is important to preserve the law of Scotland, where it really differs from that of England ; but, where that is not so, and no principle of conflicting law is involved, it is a reproach to any system of law, that there should be, in matters of the same kind, and on subjects of the same legislation, a different rule of construction applied in one part of the kingdom and in another. In looking into the authorities in this case, I have in vain sought for a rule of Scotch law peculiar to that country ; and in the English law, I find that the principle, on which the liability of employers is founded, was fully recognized in the time of Lord Holt, in Lane u. Cotton, and applied in Bush v. Steinman, where it was pushed to its fullest extent. Indeed, there is one Scotch case, that of Linwood V. Van Hathom, which is much more restrictive, in respect to the liability of trustees, than some of the English cases, and, certainly, more so, than the case I have just mentioned. But it is supposed, that the regulations of the law are not the same in both countries upon this point. When trusts are created, it is plain, that, for the public benefit, the courts should have a common principle of dealing with them, on which might be engrafted such special rules as it seemed advisable to adopt, on account of the particular circumstances of one or other of the two countries. In England, we have long held, that trustees of a turnpike-road are not liable in cases of this sort ; Baker v. Harris, Hum- phries u. Mears, and Hall v. Smith. In all these cases it was distinctly held, that such trustees are not answerable but for their own personal default. There is another class of cases, in which it has been decided, that trustees, exceeding the authority given them, may be personally liable, but keeping within it, they are not answerable. In this instance, there is no pretence for setting up personal liability. In some cases, it is true, a person injured may be without a §§ 321, 322.] LIABILITY OP AGENTS FOR TORTS. 401 § 322. The same doctrine has been applied to public officers, acting in the army or navy, who are held responsible for their own acts and negligences, but are not held responsible for the misfeasances and negligences of the subordinate officers under them, who, indeed, are not ordinarily appointed by them, but are appointed by the government itself. Thus, it has been held, that the captain of a public sloop of war is not answerable for any damage done by her running down another vessel, the mischief appearing to have been done during the watch of the lieutenant, who was upon deck, and who had the actual direction and man- agement of the steering and navigating of the sloop at the time, when the captain was not upon deck, nor was called there by his duty.i remedy ; but the fact, that he may be so, will not alter the principle of law, which was left him in that situation. The British Plate-Glass Company «. Meredith, and Boulton v. Crowther, the former decided in 1792, are cases, that may be referred to, as showing, that, where trustees or commissioners are appointed under a public act, they are not responsible for the consequences of an act done within the scope of their authority. In both these cases, if the plaintiff had obtained a judgment, it would have been against a public body as such, and it was not therefore necessary to consider the question of the personal liability of the trustees. In Hall v. Smith, Lord Wynford said, ' If commis- sioners, under an act of parliament, order something to be done, which is not within the scope of their authority, or are themselves guilty of negligence in doing that which they are empowered to do, they render themselves Hable to an action ; but they are not answerable for such as they are obliged to employ.' The true distinction is here taken, and the law, thus laid down, has ever since been recognized in England." Lord Brougham, on the same occasion, added, " That there was no such decision previous to 1820, is admitted ; that all the cases, which have been decided, have been upon the terms of particular turn- pike trusts, is not denied ; that, therefore, no general rule has been laid down by the Scotch courts, may be taken as admitted ; but it may be, that some case has been decided, extending the liability of persons for the acts of their agents, beyond the limit assigned to it by the law of England. But such is not the fact; on the contrary, it is found, that the liability of the principal is more restricted there than here. Such a case as that of Bush v. Steinman, which was satisfactorily decided here, if it had happened in Scotland, would not have been so decided there, for the reason I have just mentioned. The rule of liability, and its reason, I take to be this : I am liable for what is done for me and under my orders, by the man I employ, for I may turn him off from that employ, when I please ; and the reason that I am liable is this, that, by employ- ing him, I set the whole thing in motion ; and what he does, being done for my benefit and under my direction, I am responsible for the consequences of doing it." Ante, § 320. ' Nicholson v. Mounsey, 15 East, 384. On this occasion. Lord EUenborough AOEircT. 26 402 AGENCY. [CH. XII. said, " This is a case very important in its consequences, and, if I thought it as doubtful in principle as it is important, I should wish for further consideration before I delivered my opinion. But I cannot entertain any doubt upon it. Captain Mounsey is said to be liable for the damages awarded in this case, by considering him in the ordinary character of the master of the vessel, by means of which the injury was done to the plaintiff's property. But how was he mas- ter .'' He had no power of appointing the officers or crew on board ; he had no power to appoint even himself to the station, which he filled on board; he was no volunteer in that particular station, merely by having entered originally into the naval service ; but was compellable to take it, when appointed to it, and had no choice, whether or not he would serve with the other persons on board, but was obliged to take such as he found there, and make the best of them. He had no power, either of appointment or dismissal, over them. The case, there- fore, is not at all like that of an owner or master, who, according to the prin- ciple laid down by Lord Chief Justice Eyre, in Bush v. Steinman, is answerable for those, whom he employs, for injuries done by them to others, within the scope of their employment. The principle, perhaps, cannot be impugned, though that was a hard application of it. It does not, however, apply to this case. Here Captain Mounsey was a servant of his majesty, stationed on board this ship to do his duty there, together with others equally appointed and sta- tioned there by the same authority, to do their several duties. They had each their several duties to perform, only they were to be performed on board the same ship. In the case of Lane v. Cotton, now established as law. Lord Holt only differed from the other judges upon the point, whether in truth the clerk in the post-office, to whom the misconduct was in fact attributable, was the ser- v.ant of the postmaster, or not. The facts of that case were, indeed, very differ- ent from the present ; but, even with the power of appointment of such clerks, the postmasters were held not to be liable for their default. Then with respect to the case of Webb and others v. Drake, which at first was supposed to have been an authority in support of this action ; if, as it is now stated, the captain had originally given the order to proceed in the course the ship was holding, when the damage was done, there might have been some color (I do not mean to say that there was any) for making him liable, as for his personal act. But here, there was no personal interference of the captain with the act of the lieutenant, by which the damage was occasioned ; both, indeed, were servants of one common master ; but there was no consent by the one to the act of the other, unless that can be inferred from the community of their services. This disposes of the rule, as it affects the case of Captain Mounsey ; and it does not touch the case of the other defendant." §§ 322, 323.] EIGHTS OP, as to principals. 403 CHAPTER XIII. EIGHTS OP AGENTS IN EEGAED TO THEIB PEINCIPALS. [* § 323. Duties and liabilities of principals to agents now considered. 324. Agent generally entitled to compensation for his services. 326. Cases where the agent, strictly speaking, has no legal claim to compensation. 326. Compensation in commercial agencies called o commission, and generally regu- lated by the usage of the business. 327. Similar principles in the civil law. 328. Extraordinary commissions sometimes allowed, as del credere commission. 329. General rule that agent's whole duty must be performed before he is entitled to commission. 330. Exceptions to the right of an agent to receive commissions. 331. Due and faithful performance of all the duties of his agency necessary to entitle an agent to commissions. 332. 333. Illustrations. 334. A fortiori, will an agent forfeit his commission if-he engages in any transaction which amounts to a fraud upon his principal. 334 a. Upon the same ground master of a ship as an agent must give his whole time and attention to his principal. 336. It is the right of agents to be reimbursed all their advances, expenses, and dis- bursements made in course of agency for benefit of principal. 336. But these must have been properly incurred and paid without default on the part of the agent. 337. This is the doctrine of the civil law. 338. Agent sometimes entitled to interest on his advances from his own funds. 339. If an agent in the course of his business, without fault of his own, and following his instructions, suffers loss, he is entitled to compensation. 340. Common law follows civil law in this. 341. But the loss must be the direct and immediate consequence of the agency. 342. Independently of agreement or usage, advances by a factor are deemed to be made upon the joint credit of the principal and funds. 343. Questionable doctrine as to right of agent to be paid customs duties which he evaded. 344. Advances and disbursements by agents in illegal transactions are not recoverable. 346. Civil law the same. 346. No distinction now in this respect between illegality resulting from positive law and illegality existing in the very nature of the transaction. 347. Agent may recover where the money is advanced in a transaction collateral to, although remotely connected with, the illegal transaction. 348. Agent by gross negligence, fraud, or misconduct may lose his remedy against his principal for disbursements in a legal transaction. 349. Principal not liable for disbursements made after the agent has notice of the revo- cation of his authority. 850. Remedies of agents.] § 323. Having thus considered the duties and obligations of agents to their principals ; and their liabilities to their principals, 404 AGENCY. [CH. SIII. and to third persons, as well in cases of contracts, as in cases of torts, we are next led to the consideration of the .rights of agents in respect to their principals, which will, of course, include a re- view of the duties, obligations, and liabilities of the latter to the former. § 324. In the first place, then, as to the compensation of agents. ' Ordinarily, an agent, performing services for his prin- cipal, is entitled to a compensation therefor, unless he is a mere gratuitous agent or mandatary, or unless the nature of the 'Ser- vice, or the understanding between the parties, repel such a claim. In respect to gratuitous agents or mandataries, the con- sideration of their rights properly belongs to a treatise on Bail- ments, and need not be touched in this place.^ In respect to agents or attorneys in fact, merely to sign a deed, or to do ■ some other single ministerial act for another, it is not usual either to pay, or tq stipulate for pay, for the execution of such fugitive acts. They are, ordinarily, treated as acts of friend- ship or benevolence, and are performed from a mere sense of duty, or from personal regard, and are wholly of a gratuitous nature. § 325. Cases may also exist, where services are not intended to be wholly gratuitous, but are to be compensated for ; and yet, where the agent has, strictly speaking, no legal claim, as he has stipulated to leave the amount of the compensation altogether to the good-will, and generosity, and sense of duty of his employ- ers. Thus, for example, where an agent performed work for a committee under a resolution entered into by them, " That any service, to be rendered by him, shall be taken into consideration, and such remuneration be made, as shall be deemed right ; " it was held, that no action would lie to recover recompense for ser- vices performed under the resolution, because the committee were to judge, whether any compensation was due, and ought to be paid, or not. In such a case, the agent is presumed to intend to throw himself entirely upon the mercy and generosity of his employers, and to insist upon no claim as a matter of right." Agreements of this sort are said to happen not unfrequently in contracts with particular departments of the government. How- ever, in cases of this sort, if it is not perfectly clear, that the ' See Story on Bailm. 153, 154, 196-201. « Taylor v. Brewer, 1 M. &. Selw. 290. §§ 323-326.] RIGHTS OP, as to principals. 405 agent contracts A^ith this understanding ; but his contract is, that he shall receive some reasonable remuneration for his ser- vices, the amount only to be fixed by his employers ; he may then maintain a suit for a reasonable remuneration, if none is fixed by his employers, or none, which in a just sense, is considered as reasonable.^ § 326. In the ordinary course of commercial agencies, a com- pensation is always understood to belong to the agent, in consid- eration of the duties and responsibilities which he assumes, and the labor and services which he performs. This compensation is commonly called a commission ; and it is usually the allowance of a certain percentage upon the actual amount, or the value of the business done ; as for example, upon the value of the goods bought or sold in the course of the agency .^ The amount of the commissions allowed to auctioneers, and brokers, and factors, and other regular agents, is generally regulated by the usage of trade at the particular place, or in the particular business, in which the agent is employed.^ Where there is no usage of trade, a reasonable compensation, to be ascertained by the court, or jury, as the case may happen to arise at law or in equity,. is allowed to the agent. But, in every case, the allowance will be governed by the positive agreement of the parties, whenever such an agree- ment exists ; for where there is an express agreement, it follows, of course, that the implied compensation, from the usage of trade, or the presumed intention of the parties, wholly fails.* " Bx- pressum facit cessare taciturn." ' United States v. M'Daniel, 7 Peters, 1 ; United States v. Ripley, 7 Peters, 18 ; United States v. Fillebrown, 7 Peters, 2^. ' Paley on Agency, by Lloyd, 100, 101 ; 3 Chitty on Com. & Manuf. 221, 222. " Eicke V. Meyer, 3 Campb. 412 ; Cohen v. Paget, 4 Campb. 96 ; Roberts v. Jackson, 2 Starkie, 225 ; 3 Chitty on Com. & Manuf. 221, 222 ; Smith on Merc. Law, pp. 54, 55 (2d ed.) ; Id. pp. 100, 101 (3d ed. 1843) ; Chapman v. De Tastet, 2 Starkie, 294. ■■ Bower V. Jones, 8 Bing. 65 ; Miller v. Livingston, 1 Caines, 349 ; Robinson ». New York Insur. Co. 2 Caines, 357. See Stevenson ». Maxwell, 2 Sandf. Ch. 274. [* Where one, on the footing of a friend, neighbor, and relative, undertook to manage the moneyed affairs of an old lady, without any stipula- tion as to compensation, and without intending to make any charge, it was held, that lie was not entitled, after her death, to claim a remuneration for his ser- vices, and that his being held to a strict account by her administrator did not vary the case. Hill v. Williams, 6 Jones, Eq. N. C. 242.] 406 AGENCY. [CH. XIII. § 327. The civil law adopted principles of a like nature. In cases of mandates, the services were treated, ordinarily, as grar tuitous. If a particular salary or compensation was stipulated for or fixed, the contract fell under a different denomination, — the contract of hire, or locatio-oonductio, and the salary or com- pensation was to be regularly paid.^ " De salario autem, quod promisit, apud prsesidem provincise cognitio, prEebebitur." ^ But if there was no certainty in the promise, so that it was treated as a vague and indeterminate pollicitation or promise, no compensa- tion was allowed. " Salarium incertse poUicitationis peti non potest." 2 Or, as Papinian expressed it : " Salarium incertse pol- licitationis neque extra ordinem recte petitur, neque judicio man- dati, ut salarium tibi constituat." * If no particular sum was agreed on, but a compensation was to be paid, then a reasonable compensation was to be allowed and decreed by the proper tri- bunal. This reasonable compensation was to be proportionable to the nature and quantity Of the particular commerce, business, or affair to be transacted, to the quality of the agent, to the time employed about it, and to the pains taken by the agent. " De proxenetico, quod et sordidum, solent, prsesides cognoscere. Sic tamen, ut in his modus esse debeat, et quantitatis, et negotii, in quo operula ista defuncti sunt, et ministerium quale accoramoda- verunt." ^ Indeed, a similar doctrine must prevail in all coun- tries, which profess to be governed by the rules of enlightened reason and natural justice.^ § 328. Besides the ordinary commissions, in some classes of agency, such as cases of factors for the sale of goods, extraordi- nary commissions are sometimes allowed, either by the usage of trade, or by the positive agreement of the parties. Of this char- acter is what is commonly called a commission del credere, which is an extra compensation paid to a factor, in consideration of his undertaking to be responsible for the solvency and punctual pay- ment of the debt, by the parties to whom the goods of' his prin- ' 1 Bell, Comm. p. 481 (5tli ed.). = Cod.- Lib. 4, tit. 35, 1. 1 ; Pothier, Pand. Lib. 17, tit. 1, n. 74. ' Cod. Lib. 4, tit. 35, 1. 17 ; Pothier, Pand. Lib. 17, tit. 1, n. 74. " Dig. Lib. 17, tit. 1, 1. 56, § 3 ; Pothier, Pand. Lib. 17, tit. 1, n. 74. <■ Dig. Lib. 50, tit. 14, 1. 3 ; 1 Domat, B. 1, tit. 17, § 2, art. 2. « See 1 Bell, Comm. p. 386, § 409 (4th ed.) ; Id. § 411 ; Id. pp. 481, 482 (5th ed.). §§ 327-329.J EIGHTS OP, as to principals. . 407 cipal have been sold.^ The nature and extent of the obligation, thus created between the principal and factor, have been already, in some measure, discussed and considered.^ § 329. The general rule of law, as to commissions, undoubt- edly is, that the whole service or duty must be performed, before the right to any commissions attaches, either ordinary or extraor- dinary ; for an agent must complete the thing required of him, before he is entitled to charge for it.^ But cases may occur, in which an agent may be entitled to a remuneration for his ser- vices, in proportion to what he has done, although he has not done the whole service or duty originally required. This may arise, either from the known usage of the particular business, or from the entire performance being prevented by the act or neglect of the principal himself; * or from the intervention of an over- whelming calamity, or irresistible force, which has rendered it ' Paley on Agency, by Lloyd, 40, 41, IQO, 101. » Ante, §§ 33, 112, 216; Paley on Agency, by Lloyd, 41, 42, 111, note; 1 Bell, Comm. p. 887, § 411 (4th ed.) ; Id. pp. 481, 482 (5tli ed.) ; Smith on Merc. Law, B. 1, ch. 6, § 2, p. 98 ; Id. § 3, pp. 100, 101 (3d ed. 1843). ' Post, § 331 ; McGavocb v. Woodlief, 20 How. (U. S.) 221 ; Hammond v. Holiday, 1 Carr. & Payne, 384 ; Broad v. Thomas, 7 Bing. 99 ; Simpson v. Lamb, 33 Eng. Law and Eq. 229 ; 17 Com. B. 603 ; Dalton v. Irvin, 4 Carr. & Payne, 289 ; Paley on Agency, by Lloyd, 106, 106. [* A broker, employed to sell, earns his commission if he finds a good purchaser on the terms directed, though the vendor changes his mind and refuses to sell. Kock v. Emmerling, 22 How. (U. S.) 69. Also when there is a failure to complete the sale in con- sequence of a defect in title and no fault on the part of the broker. Doty v. Miller, 43 Barb. 629.] * [* Topping V. Healey, 3 F. & F. 325.] [Thus, where an agent, employed to sell land at a given price, at a commission of one and one-half per cent., found a purchaser at the stipulated price, but the principal declined to sell and re- scinded the agent's authority, the latter was held entitled to recover a reasonable compensation in an action for his work and labor, the proper amount of which would seem to be the entire commission agreed upon, inasmuch as the agent had done all he was bound to do, to earn the commission. Prickett v. Budger, 1 J. Scott (n. s.), 296. See De Bernardy v. Harding, 8 Exch. 822. So, where an agent was to have a commission for all "goods bought" of his prin- cipal through the agent's aid, and the latter procured an order for goods which the principal accepted, but was afterwards unable to fill, the agent was held entitled to his full commission, although the goods were never delivered to the buyer. Lockwood v. Levick, 8 J. Scott (n. s.), 603.] [* In an action to recover for commission for the procuring of a loan it is not enough to prove that the loan has indirectly, as a remote and casual consequence, resulted from the intervention of the party who sues ; but it must be proved that the loan was 408 . AGENCY. [CH. XIII. impossible.^ The same principle would probably be applied to the case of a person, who, during the time of his agency, and before it was completed, should become, by the death of his principal, his executor or administrator ; in which case, by operation of law, his right to receive commissions for future acts would be merged in his new character of personal represent- ative.^ § 330. The right, however, of an agent to receive commissions, either ordinary or extraordinary, is subject to several exceptions, founded, either in the policy of the law, or in the nature of the contract. In the first place, an agent can never recover com- missions for his services in any illegal transactions, whether they are positively prohibited by law, or by morals, or public policy.^ Thus, for example, an agent employed to sell for another a public employment, such as an office in the customs, cannot support an action for any compensation for his services ; for the transaction is against public policy.* So, an agent employed to assist in obtained by means of his agency, or' by means of some sub-agent of his, from the parties to whom he applied; and if all that appears is, that the party to whom he introduced the subject, declining the proposal, mentioned it to a third party, who, not at his suggestion, but of his own mere motion, knowing nothing of the plaintiff, negotiated the loan on his own account with the party sued, the commission is not due. Antrobus v. Wickens, 4 F. & F. 291. See also Green V. Bartlett, 10 Jur. N. s. 78, and InchT^ald v. Neilgherry Coffee, Tea, &c., Co. 34 L. J. N. s. C. P. 15. But a principal cannot avoid pajnng a broker his commissions by refusing to ratify the sale which the latter has brought about. Bailey v. Chapman, 41 Mo. 536. A broker is not entitled to full commissions unless he perform the full service on his part ; but he is entitled to compensation, on a quantum meruit, in pro- portion to the service performed, where the order is countermanded, unless the party employing reserved the right to recall his order, or proof is adduced of some well known custom or usage in the business to that effect, which the court will not assume, as matter of law, until it becomes so notorious as to be uni- versally recognized as a rule of law. Durkee v. Vt. Central Railw. Co. 29 Vt. 127.] ' See Hamond v. Holiday, 1 Carr. & Payne, 384 ; Broad v. Thomas, 7 Bing. 99 ; Reed v. Rann, 10 B. & Cressw. 438. " Hovey v. Blakeman, 4 Ves. 696 ; Sheriff v. Axe, 4 Russ. 33. = Post, § 344. * Paley on Agency, by Lloyd, 502 ; Stackpole v. Earl, 2 Wils. 133 ; Waldo V. Martin, 4 B. & Cressw. 319 ; 6 Dowl. & Ryl. 364; Parsons v. Thompson, 1 H. Black. 322 ; 3 Chitty on Com. & Manuf. 222, 22^ ; 2 Liverm. on Agency, 8-10 (ed. 1818) ; Smith on Merc. Law, 54, 65 (2d ed.) ; Id. B. 1, ch. 5, § 2, p. 91 ; Id. § 3, pp. 100, 191 (3d ed. 1843) ; Josephs v. Pebre, 3 B. & Cressw. §§ 329-331.] EIGHTS OP, AS TO PRINCIPALS. 409 smuggling, and selling the smuggled goods, cannot support an action for any compensation.^ So, an agent employed to buy or sell the stock of an illegal association, cannot recover any com- pensation therefor.^ So, an agent employed to charter a ship for an illegal voyage, or to assist in carrying on an illegal voyage, cannot recover any compensation therefor.^ So, an agreement to allow poundage to an agent upon the amount of the bills of all customers, recommended by him, will be held void, as a fraud upon the customers.* § 331. In the next place, the agent is entitled to his commis- sions only upon a due and faithful performance of all the duties of his agency in regard to his principal.^ For it is a necessary element in all such cases, that, as the comissions are allowed for particular services to the principal, it is a condition precedent to the title of the commissions, that the contemplated services should be fully and faithfully performed.^ If, therefore, the agent does not perform his appropriate duties, or if he is guilty of gross negligence, or gross misconduct, or gross unskilfulness, in the business of his agency, he will not only become liable to his prin- cipal for any damages, which he may sustain thereby, but he will also forfeit all his commissions.'' Slight negligence, or slight omissions of duty, will not, indeed, ordinarily be visited with such serious consequences ; although if any loss has occurred thereby 689 ; Ante, §§ 196, 196 ; 1 Liverm. on Agency, ch. 1, § 2, pp. 14r-21 (ed. 1818). ' Story on Conflict of Laws, §§ 244-256 ; Armstrong v. Toler, 11 Wheat. 261, 262. * Josephs V. Pebre, 3 B. & Cressw. 639. ' See Haines v. Busk, 5 Taunt. 521. * Wyburd v. Staunton, 4 Esp. 179. ' Paley on Agency, by Lloyd, 104 ; Sea v. parpenter, 16 Ohio, 412 ; Ante, § 392. " Ante, § 329. ' Paley on Agency, by Lloyd, 104, 105; White v. Chapman, 1 Starkie, 113 ; Denew v. Daverell, 3 Campb. 461 ; Hamond v. Holiday, 1 Carr. & Payne, 384 ; 3 Chitty on Com. & Manuf. 222, 223 ; Hill v. Featherstonehaugh, 7 Bing. 569; Shaw ». Arden, 9 Bing! 287; Dodge v. Tileston, 12 Pick. 328, 332-334; Smith on Merc. Law, 64, 55 (2d ed.) ; Id. B. 1, ch. 5, § 3, pp. 100-103 (3d ed. 1843) ; Callendar v. Oelrichs, 5 Bing. N. C. 68. In this last case, damages were recovered against an agent to insure for not giving notice to his principal of his failure to procure insurance, the court holding it to be an implied part of his duty. 410 AGENCY. [CH. XIU. to the principal, it will be followed by a proportionate diminution of the commissions.^ § 332. Thus, for example, it is ordinarily the duty of agents to keep regular accounts and vouchers of the business in the course of their agency ; and if this duty is not faithfully performed, the omission will always be construed unfavorably to the rights of the agent, and care will be taken that the principal shall not suffer thereby .2 Indeed, cases may occur of such gross neglect and misconduct of agents, in this respect, as to amount to a com- plete forfeiture of all compensation which would otherwise belong to the agency.^ [But where an agent was employed, under a written contract, to perform, for a fixed quarterly salary, all the duties of a general agent of a manufacturing corporation, one of which was to render a monthly account of the funds in his hands, it was held that a failure to render such accounts would not bar his right to recover his salary for the time he actually remained their agent; although it might have justified his dismissal, or made him liable in damages.*] § 333. So, if an agent should grossly misconduct himself in other respects, in the course of his agency, — as if he should vio- late his instructions, or if he should act injuriously to his prin- cipal without any authority ; or if he should wilfully confound his own property with that of his principal, — in these and the ' Id. ; 2 Liverm. on Agency, ch. 9, § 1, pp. 4-6 (ed. 1818). 2 Ante, §§ 203, 204; 2 Liverm. on Agency, ch. 9, § (1), p. 4 (ed. 1818) ; Paley on Agency, by Lloyd, 47, 48, 104; Beaumont «. Boultbee, 11 Ves. 358; Lord Chedworth v. Edwards, 8 Ves. 48 ; Lupton v. White, 15 Ves. 439-443 ; Massey v. Banner, 4 Madd. 413 ; Smith on Merc. Law, 64, 66 (2d ed.) ; Id. B. 1, ch. 5, § 3, pp. 100, 101 (3d ed. 1843) ; Clarke «.Moody, 17 Mass. 145. On this ground it is, that if an agent whose duty it is to keep accounts, neglects it, and thereby his own property becomes so mixed up with that of his principal, that the one is not clearly distinguishable from the other, a court of equity will restrain him from disposing of stock standing in his own name, which may have been purchased with the money of his principal, until he clearly shows on oath, how much of it was, or might have been, bought with his own money, and how much with that of his principal. Ante, § 179, note, § 206 ; Lord Chedworth ». Edwards, 8 Ves. 48; Panton v. Panton, cited 16 Ves. 440; Morgans. Lewis, 4 Dow, 52 ; Hart v. Ten Eyck, 2 John. Ch. 108. = 1 Story on Eq. Jurisp. § 468 ; White v. Lady Lincoln, 8 Ves. 371 ; Lup- ton V. White, 15 Ves. 439-443 ; Morgan «. Lewes, 4 Dow, 52 ; Paley on Agency, by Llpyd, 104. ' Sampson v. Somerset Iron Works, 6 Gray, 120. §§ 331-334 a.] eights of, as to peinoipals. 411 like cases he might forfeit his whole title to compensation, if the circumstances were aggravated ; or, at all events, he would be made to bear all the losses sustained by such misconduct.^ He would also be held to account to his principal, and every doubtful circumstance would be construed unfavorably to his rights and interests.^ § 834. A fortiori, an agent will forfeit his commissions, if he engages in any transaction which amounts to a fraud upon his principal; such as betraying his trust, by acting adversely to his interests ; ^ or by embarking his property in illegal transac- tions ; or by being guilty of barratry ; or by fraudulently mis- applying his funds.* And, if the agent has stipulated to give his whole time and services to his principal, he will not be permitted to derive any commissions or other compensation for services in another employment during the same period.^ Indeed, the com- missions or other compensation earned by services in another employment, under such circumstances, would, in equity at least, seem properly to belong to the principal.^ § 834 a. It is upon the same general ground that it is held, that the master of a ship is an agent bound to give all his time and attention to his principal. It is his duty, when the ship is employed on a trading adventure, to act for the common benefit of the owners ; and when the ship is freighted, or chartered, to ' See Jones «. Hoyt, 25 Conn. 386. ' 1 Story on Eq. Jurisp. § 468 ; White v. Lady Lincoln, 8 Ves. 363 ; Lup- ton «. White, 16 Ves. 439-442 ; Chedworth v. Edwards, 8 Ves. 46 ; Ante, § 205 ; Paley on Agency, by Lloyd, 47, 48 ; Id. 104, 105 ; Denew v. Daverell, 3 Cainpb. 451 ; White v. Chapman, 1 Stark. 113 ; Hamond u. Holiday, 1 Carr. & Payne, 384; Hurst v. Holding, 3 Taunt. 32; 3 Chitty on Com. & Manuf. 222; 2Liverm. on Agency, 4, 6, 7 (ed. 1818). But see Templeru. McLachlan, 5 Bos. & Pull. 136 ; Dodge v. Tileston, 12 Pick. 328 ; Woodward v. Suydam, 11 Ohio (Stanton), 362 ; Clarke v. Tipping, 9 Beav. 284. [* An agent to pro- cure insurance is bound to follow the instructions of his principal and procure a valid insurance ; and if he procures it in his own name, having no interest in the property, and it is invalid, he is liable to his principal for the actual damages sustained by him, though he may be excusable as to a doubtful point of law. Sawyer v. Mayhew, 61 Maine, 398.] ' Hurst ». Holding, 3 Taunt. 32 ; Paley on Agency, by Lloyd, 106 ; Brown I). Croft, 6 Carr. & Payne, 16, n. * See 3 Chitty on Com. & Manuf. 222, note (1) ; Id. 223. ' Thompson «. Havelock, 1 Campb. 627 ; Gardner u. McCutcheon, 4 Beav. 535. * Ibid. ; Paley on Agency, by Lloyd, 105, 106. 412 AGENCY. [CH. XIII. obtain freight upon the best terms he can for the owners, free from all bias of separate interest in himself, or of leave given to himself by the charterers to trade for himself; and it has been thought difficult to support a custom which, if legal, would entitle him to trade for himself, when it is his duty to trade to the best of his ability for the joint interest of himself and the other owners, and would give him a discretionary power to place his -own interest in competition with the joint interests. ^ § 336. Another right of agents is, to be reimbursed all their advances, expenses, and disbursements made in the course of their agency, on account of, or for the benefit of, their principal.^ This is naturally, nay, necessarily, implied from the very char- acter of every agency to which such advances, expenses, and disbursements are incident, whenever they fall within the appro- priate duty of the agent. Hence, all the incidental charges and expenses incurred for warehouse-room, duties, freight, lighterage, general average, salvage, repairs, journeys, and other acts done to preserve the property of the principal, and to enable the agent to accomplish tlie objects of the principal, are to be fully paid by the latter.^ So, if an agent has, at the express or the implied re- quest of his principal, necessarily incurred expenses in carrying on or defending suits for the benefit of his principal, those ex- penses must be borne by the latter, and the agent will be entitled to recover them from him.* § 336. But this liability of the principal proceeds upon the ground, that the advances, expenses, and disbursements have been properly incurred, and reasonably and in good faith paid, without any default on the part of the agent.^ Under such cir- ' Gardner v. McCutcheon, 4 Beav. 535, 542. " 2 Liverm. on Agency, ch. 9, § 2, pp. 11-23 (ed. 1818) ; Story on Bailm. §§ 196, 197. •" Story on Bailm. §§ 196, 197, 357, 358 ; Paley on Agency, by Lloyd, 107, 108, 110-113, 124; Smith on Merc. Law, 65 (2d ed.) ; Id. B. 1, ch. 5, § 3, pp. 100-103 (3d ed. 1843) ; S Chitty on Com. & Manuf. 222, 223 ; 2 Liverm. on Agency, pp. 1.1-22 (ed. 1818) ; Ramsey v. Gardner, 11 John. 439. * Hawes u. Martin, 1 Esp. 162 ; Delaware Ins. Co. v. Delannie, 3 Binn. 295; Spurrier v. Elderton, 5 Esp. 1 ; 2 Liverm. on Agency, 13-16 (ed. 1818) ; Cur- tis V. Barclay, 5 B. & Cressw. 141. ' 2 Liverm. on Agency, 14-16 (ed. 1818) ; Capp v. Topham, 6 East, 392; Smith on Merc. Law, 56 (2d ed.), pp. 100-103 (3d ed. 1843) ; Paley on Agency, by Lloyd, 109, 110 ; Vandyke v. Brown, 4 Halst. Ch. 655. §§ 334 a-337.] bights op, as to peincipals. 413 cumstances, it. will constitute no objection to the claim, that the advances, expenses, or disbursements have not been attended with all the benefits to the principals, which were expected or intended by the agent ; for, his acts being in good faith, in the exercise of a sound judgment, and according to the ordinary course of business, the agent ought not, in justice, to be made responsible for any ultimate failure of success in the agency .^ Oases may indeed occur of such peculiar exigency as will justify an agent in making advances or incurring expenses beyond what ordinarily appertain to the regular course of business, for which, nevertheless, the principal will be bound to make him a full reimbursement.^ And, a fortiori, this rule will apply where the agent is clothed with a discretionary authority.^ However, if the agent has voluntarily and officiously and without any authority made advances or payments,* or has incurred unreasonable, use- less, or superfluous expenses, the principal will not be bound to any reimbursement thereof; for it will be imputed to the fault, or negligence, or unskilfulness of the agent.^ § 837. This doctrine, so consonant to reason and justice, is also recognized in the civil law. " Si mihi mandaveris, ut rem tibi aliquam emam, egoque emero meo pretio, habebo mandati actionem de pretio recuperando. Sed et si tuo pretio, impendero tamen aliquid bona fide ad emptionem rei, erit contraria mandati actio, aut si rem emptam nolis recipere. Simili modo, et si quod aliud mandaveris, et in id sumptum fecero.^ Impeiidia, mandati exsequendi gratiS, facta, si bonS, fide facta sunt, restitui omni- modo debent ; nee ad rem pertinet, quod is, qui mand§.sset, ' 1 Domat, B. 1, tit. 15, § 2, art. 2 ; Ersk. Inst. B. 2, tit. 3, § 38 ; Pothier, Traits de Mandat. notes 68, 76, 78, 79 ; 2 Liverm. on Agency, 33 (ed. 1818). ' Paley on Agency, by Lloyd, 108, 109 ; Wolff u. Hornoastle, 1 Bos. & Pull. 323 ; 3 Chitty on Com. & Manuf. 222, 223 ; Smith on Merc. Law, 65 (2d ed.) ; Id. B. 1, ch. 6, § 3, pp. 100-103 (3d ed. 1843). ' Wolff u. Horncastle, 1 Bos. & Pull. 323. * Paley on Agency, by Lloyd, 110, 111, and notes 1, 13; Child v. Morley, 8 T. R. 610; Grove v. Dubois, 1 T. K. 112 ; Wilson v. Creighton, cited 1 T. R. 113; 3 Chitty on Com. & Manuf. 222. " Paley on Agency, by Lloyd, 109, 114, note ; Id. 115, 116 ; Edmiston e. . Wright, 1 Campb. 88 ; Howard v. Tucker, 1 B. & Adolph. 712 ; 3 Chitty on Com. & Manuf. 222, 223 ; Pothier, Traite de Mandat. notes 76, 76, 78 ; Beau- mont V. Boultbee, 11 Ves. 368. « Dig. Lib. 17, tit. 1, 1. 12, § 9 ; Pothier, Pand. Lib. 17, tit. 1, n. 53 ; Po- thier, Traits de Mandat. u. 69 ; 2 Liverm. on Agency, 12 (ed. 1818). 414 AGENCT. [CH. XHI. potuisset, si ipse negotium gereret, minus impendere.^ Sumptus bonS, fide necessario factos, etsi negotii finem adhibere procurator non potuit, judicio mandati restitui necesse est.^ Si tamen nihil culpS, tu§, factum est, sumptus, quos in litem probabili rations feceras, contrariS, mandati actione petere potest.'* Si quid pro- curator citra mandatum in voluptatem fecit, permittendum ei auferre, quod sine damno domini fiat, nisi rationem sumptfis istius dominus admittit." * The same maxims are fully recog- nized in the jurisprudence of the modern commercial nations of continental Europe. Pothier lays it down as a general doctrine, that the mandant or principal is, by the contract of mandate, bound to indemnify the mandatary or agent for all his disburse- ments, and for all the liabilities he has incurred in the execution of his agency.^ And the same doctrine is found approved by many other jurists.^ § 338. Not only may the advances and disbursements of an agent, made out of his own funds, be claimed from the principal, when they properly flow from the matters of his agency, but he will also be entitled to interest upon such advances and dis- bursements, wherever, from the nature of the business or the usage of trade or the particular agreement of the parties, it may fairly be presumed to be stipulated for, or due to the agent.'' In this respect, the common law is in coincidence with the civil law. " Adversus eum cujus negotia gesta sunt, de pecuniS, ' Dig. Lib. 17, tit. 1, 1. 27, § 4 ; Pothier, Pand. Lib. 17, tit. 1, n. 67 ; 1 Do- mat, B. 1, tit. 16, § 1, art. 11, § 2, arts. 2, 3 ; Pothier, Traits de Mandat. u. 78. ' Dig. Lib. 17, tit. 1, 1. 56, § 4 ; Pothier, Pand. Lib. 17, tit. 1, n. 68 ; Heinecc. Elem. Pand. § 234; 1 Domat, B. 1, tit. 15, § 2, art. 3; Pothier, Traits de Mandat. n. 79; 2 Liverm. on Agency, 33 (ed. 1818). ' Cod. Lib. 4, tit. 35, 1. 4; Pothier, Pand. Lib. 17, tit. 1, n. 68; 1 Domat, B. 1, tit. 15, § 2, art. 2; Pothier, Traits de Mandat. notes 75, 78, 79. * Dig. Lib.' 17, tit. 1, 1. 10, § 10; Pothier, Pand. Lib. 17, tit. 1, n. 62; 1 Domat, B. 1, tit. 16, § 2, art. 2. " Pothier, Traite de Mandat. notes 68-76. « Ersk. List. B. 8, tit. 3, §§ 34, 38 ; Heinecc. Elem. Juris Nat. et Gent. Lib. 1, cap. 13, § 349 ; 1 Turnb. Heinecc. Elem. of Law of Nat. and Nat. § 349 ; 1 Domat. B. 1, tit. 15, § 2, art. 4, 6. ' Meech v. Smith, 7 Wend. 316 ; 2 Liverm. on Agency, 17 (ed. 1818) ; Dela- ware Ins. Co. V. Delaunie, 3 Binn. 296 ; Trelawney v. Thomas, 1 H. Bl. 303; Bruce v. Hunter, 3 Campb. 467 ; Calton v. Bragg, 15 East, 223 ; Loitard v. Graves, 3 Caines, 226. §§ 337-339.] BIGHTS OP, as to principals. 415 quam de propriis opibus, vel ab aliis, mutuo acceptam, erogasti, mandati actioue pro sorte et usuris potes experiri.^ Nee tantum id, quod impendi, verum usuras quoque consequar. Usuras autem non tantum ex mora esse admittendas, verum judicem aestimare debere si exeget a debitore suo quis, et solvit, cum uberrimas usuras consequeretur (sequissimum enim erit rationem ejus rei, haberi) ; aut si ipse mutuatus gravibus usuris, solvit. Bt, ut est constitutum, totum hoc ex eequo et bono judex arbitra- bitur.^ § 339. Upon similar grounds, if an agent has, without his own default, incurred losses or damages in the course of transacting the business of his agency, or in following the instructions of his principal, he will be entitled to full compensation therefor.^ Thus, for example, if an agent, in consequence of a deception practised upon him by his principal, and in pursuance of orders, innocently makes a false representation of the quality of the goods of his principal, and he is compelled to pay damages to a purchaser on account thereof, he will be entitled to a full remu- neration from the principal.* So an agent may recover of his principal damages sustained in defending a suit on the principal's behalf, if the agent was acting within the scope of his authority, and the loss arose from the fact of agency, and without any fault or laches on the agent's part.^ So, if an agent has innocently, and without any notice of an adverse title, converted the prop- erty of a third person, under the direction or authority of his principal, claiming it as owner, and a recovery is subsequently had against him therefor by such third person, he will be entitled to a reimbursement from his principal.® Indeed, it may be stated, '• Cod. Lib. 4, tit. 85, 1. 1 ; Pothier, Pand. Lib. 17, tit. 1, n. 74. ' Dig. Lib. 17, tit. 1, L 12, § 9 ; Pothier, Pand. Lib. 17, tit. 1, notes 63, 73. ' Eamsay «. Gardner, 11 John. 439 ; Powell v. Trustees of Newburgh, 19 John. 284 ; D'Arcy v. Lisle, 6 Binn. 441 ; Stocking u. Sage, 1 Day, Conn. 522 ; Hill V. Packard, 5 Wend. 375 ; Rogers v. Kneeland, 10 Wend. 219 ; Elliott v. Walker, 1 Rawle, 126 ; Green v. Goddard, 9 Met. 212, a very important case on this subject. [* Howe v. Buflfalo, N. Y., and ErieR. R. Co. 37 N. Y. Ct. Ap. 297.] * Paley on Agency, by Lloyd, 152, 301 ; Southern v. How, Bridgeman, 126 ; 2 Molloy de Jur. Marit. B. 3, ch. 8, § 6, pp. 329, 380 ; Cro. Jac. 468. " Frixione v. Tagliaferro, 34 Eng. Law and Eq. 27 ; 10 E. F. Moore, P. C. 175. ° Paley on Agency, by Lloyd, 152, 301 ; Adamson v. Jarvis, 4 Bing. 66 ; 416 AGENCY. [CH. XIII. as a general principle of law, that an agent who commits a tres- pass or other wrong to the property of a third person, by the direction of his principal, if at the time he has no knowledge or suspicion that it is such a trespass or wrong, but acts bond fide, will be entitled to a reimbursement and contribution from his principal for all the damages which he sustains thereby.^ Eor, although the general doctrine of the common law is, that there can be no reimbursement or contribution among wrong-doers, whether they are principals or are agents ; yet that doctrine is to be received with the qualification, that the parties know at the time that it is a wrong.^ And in all these cases, there is no difference whether there be a promise of indemnity or not ; for the law will not enforce a contract of indemnity against a known and meditated wrong ; and, on the other hand, where the agent acts innocently, and without notice of the wrong, the law will imply a promise on the part of the principal to indemnify him.^ The same doctrine applies to all other cases of losses or damages sustained by an agent in the course of the business of his agency, if they are incurred without any negligence or default on his own part.* § 340. Here again the common law only follows out the be- neficent principles of the civil law ; for, as, on the one hand, the agent is not permitted to reap any of the profits of his agency Allaire v. Ouland, 2 John. Cas. 64 ; Coventry v. Barton, 17 John. 142 ; Avery V. Halsey, 14 Pick. 174. ' Adamson v. Jarvis, 4 Bing. 66 ; Fletcher v. Harcott, Hutton, 55 ; Powell V. Trustees of Newburgh, 19 John. 284 ; Avery v. Halsey, 14 Pick. 174 ; Cov- entry V. Barton, 17 John. 142. ^ MeiTyweather v. Nixon, 8 T. R. 186; Adamson v. Jarvis, 4 Bing. 66; Jacobs V. Pollard, 10 Cush. 287 ; Pearson v. Skelton, 1 Mees. & Wels. 604. The case of Farebrother u. Ansley, 1 Campb. 343, seems overturned in its leading principle by that of Adamson v. Jarvis, 4 Bing. 66 ; see also 2 Liverm. on Agency, 316-318 (ed. 1818) ; Id. 320, 324, 325 ; Fletcher v. Harcott, Hut- ton, 55 ; S. c. Winch. 48 ; Humphrey v. Pratt, 2 Dow & Clarke, 288 ; Betts ». Gibbons, 2 Adolph. & Ellis, 67 ; D'Aroy v. Lisle, 5 Binn. 441 ; Powell v. Trus- tees of Newburgh, 19 John. 284; Coventry v. Barton, 17 John. 143; Avery ». Halsey, 14 Pick. 174. 3 Ibid. * Paley on Agency, by Lloyd, 109, 110, 116, 116 ; 2 Liverm. on Agency, 14, 16 (ed. 1818) ; 3 Chitty on Com. & Manuf. 222, 223 ; Smith on Merc. Law, 55, 56 (2d ed.) ; Id. pp. 100-103 (3d ed. 1843) ; Capp v. Topham, 6 East, 392. §§ 339-341.] EIGHTS OP, AS TO PRINCIPALS. 417 properly belonging to his principal ; ^ so, on the other hand, he is held entitled to be indemnified against all losses which have been innocently sustained by him upon the same account ; but for no losses sustained by his own default or negligence. " Ex mandate apud eum, qui mandatum suscepit, niliil remanere oportet ; sicuti, nee damnum pati debet.^ Hsec ita puto vera esse, si nulla culpa ipsius, qui mandatum vel depositum susceperit, intercedat."^ The reason given is very satisfactory. " Multo tamen sequius esse, nemini officium suum, quod ejus, cum quo contraxerit, non etiam sui commodi causS, susceperat, damnosum esse." * § 341. But it is not every loss or damage for which the agent will be entitled to reimbursement from his principal. Tire latter is liable only for such losses and damages as are direct and immediate, and naturally flow from the execution of the agency. If, therefore, the. losses or damage are casual, accidental, oblique, or remote, the principal is not liable therefor. In short, the agency must be the cause, and not merely the occasion, of the losses or damages, to found a just right to reimbursement.^ This also was the rule promulgated in the civil law. " Non omnia, quae impensurus non fuit, mandator! imputabit; veluti, quod spoliatus sit a latronibus, aut naufragio res amiserit, vel languore suo suorumque apprehensus, qusedam erogaverit. Nam h»c magis casibus, quam mandato, imputari oportet." ® The modern jurists of Europe have fully recognized the same doctrine.'^ Pothier, in broad language, lays it down, that all losses suffered by the agent (the mandatary), in the course or execution of his agency, and of which the agency was the proximate cause, are to be reimbursed by his principal. But he adds, that we are carefully , to distinguish whether the execution of the agency has been the ' Ante, §§ 192, 207, 214. " Dig. Lib. 17, tit. 1, 1. 20 ; Pothier, Pand. Lib. 17, tit. 1, n. 31 ; 1 Domat, B. 1, tit. 15, § 2, art. 4, 6. ' Dig. Lib. 47, tit. 2, L 61, § 7 ; Dig. Lib. 17, tit. 1, L 26, § 7 ; Pothier, Pand. Lib. 17, tit. 1, n. 10 ; Pothier, Trait6 de Mandat. n. 76. * Dig. Lib. 47, tit. 2, L 61, § 5 ; Pothier, Pand. Lib. 17, tit. 1, n. 60 ; Po- thier, Trait6 de Mandat. n. 75; 2 Liverm. on Agency, 18, 19 (ed. 1818). ° 2 LiTerm. on Agency, 18-23 (ed. 1818). ' Dig. Lib. 17, tit. L 26, § 6 ; Pothier, Pand. Lib. 17, tit. 1, n. 61 ; Pothier, Traite de Mandat. n. 76. ' Ersk. Inst. B. 3, tit. 3, §§ 34, 38 ; Pothier, Traits de Mandat. n. 75-78 ; Heinecc. Elem. Juris. Nat. et Gent. Lib. 1, ch. 13, § 349, n. AGENCY. 27 418 AGENCY. [CH. Xin. cause, or only the occasion, of the loss ; for, if it has been only the occasion, the principal is not bound to indemnity .^ [For to give the agent a right to remuneration from his principal, he must have at the time acted strictly in the place of the principal, in accordance vrith and representing his principal's will and not his own ; and the business must be strictly that of the principal, and not in any respect that of the agent. Thus, in a recent case, C. contracted with a town to remove a ledge of rock from the highway for a certain price and the stone ; he then contracted with A. to build a dam for him with said stone, to be paid by the day while he was getting out the stone and building the dam, A. furnishing the powder for the blasting, but having no control over it. While C. was getting out the stone, the building of I. was injured by a rock thrown upon it, for which C. was com- pelled to pay damages. It was held he could not recover them of A.2] § 342. Attempts have been sometimes made to limit the rights of certain agents, such, for example, as factorsj for advances upon goods of the principal in their possession, to a mere lien on the goods themselves, so as to exclude all personal recourse to, and responsibility of, the principal for such advances, if there happens to be a loss or failure of the fund, so that it becomes insufficient to repay the advances. Such a limited responsibihty may doubtless arise, wherever there is an express agreement between the parties to that effect, or a clear usage of trade from which such an agreement may be inferred.^ But, independently of such an agreement or usage, the general rule of law is, that advances by a factor are deemed to be made upon the joint credit of the principal and of the fund, including a lien on the latter as well as a personal responsibility of the former, for the full amount.* Where a factor receives a del credere commission upon the sale of goods, and he has made advances thereon of a less amount than the price for which they are sold, he must be deemed, by the very guaranty arising out of that commission, to waive any personal recourse to his principal for such advances. If the ' Pothier, Traits de Mandat. n. 75, 76. ' Corbin v. American Mills, 27 Conn. 274. » Burrill v. Phillips, 1 Gall. 360; Peisch v. Dickson, 1 Mason, 10; Corlies V. Gumming, 6 Cowen, 181. * Ibid. ; Post, §§ 350, 385. §§ 341-343.] EIGHTS OP, AS TO PRINCIPALS. 419 advances exceed the price, he must be deemed to waive any personal recourse to his principal, to the extent of the price for which he sells the goods, and to rely solely upon the fund realized from the sale for his reimbursement pro tanto. If therefore the advances made are less than the amount for which the goods are sold, the law, in order to prevent a circuity of action, founded upon the guaranty, will deem the whole advances paid or extin- guished as to the principal, beyond what the factor may actually receive from the sales ; and, if the advances are more than the amount of the sales, then the principal will be personally liable only for the excess beyond that amount, and the residue will be deemed paid or extinguished as to the principal. A waiver of personal recourse to the principal may also be presumed from the subsequent conduct of the factor; as if he sells the goods upon credit, and then settles the account with the principal, deducting his commissions before the credit has expired, and pays over the balance to the principal ; for, in such a case the payment of the balance may fairly be treated as an assumption of the outstanding debt on the part of the factor.^ §343. It has been said, that, if an agent abroad — as, for example, a foreign factor — should, at his own risk and peril, evade the payment of foreign customs and duties, he would still be entitled to charge them against his principal, as if they had been actually paid. But it may well be doubted whether this doctrine is sound or maintainable. ^ For the factor, by his con- ' Oakley v. Crenshaw, 4 Cowen, 260. See Robertson ». Livingston, 5 Cow. 475 ; Hapgood ». Batchellor, 4 Met. 576 ; Consequa v. Fanning, 3 John. Ch. 600. See Greely v. Bartlett, 1 Greenl. 172. ' Smith ». Oxenden, 1 Ch. Cas. 26 ; 1 Eq. Abridg. 369 ; Borr v. Vandall, 1 Ch. Cas. 30 ; s. c. Nelson, Ch. 87 ; Knipe v. Jesson, 1 Ch. Cas. 76 ; Francis's Maxims (ed. 1739), Max. 4, PI. 8, p. 24; 3 Salk. 236. This doctrine was disapproved of by Lord Keeper North, in an anonymous case in Skinner, 149, who said, that he was not satisfied with the case of Vandervaldy ». Barry, or Borr !). Vandall, 1 Ch. Cas. 30 ; for the factor ventured his master's goods, as well as his own life, by his smuggling. 13 Viner, Abridg. Factor, B. pi. 6, in marg. The remark was undoubtedly meant to repel the suggestion, made in the case of Vandervaldy ». Barry, that the factor had put his life in danger by the smuggling ; by showing, that however that might be, the factor had no right to put the principal's goods also in peril by his fraudulent conduct. See Paley on Agency, by Lloyd, 107, 168, note (a)'; Smith on Merc. Law, p. 66 (2ded.); Id. B. 1, ch. 6, §.3, p. 102 (3d ed. 1843). Can commercial agents, who are bound to insure the property of their principals, charge commissions, if they omit this duty, as if it were done ? 420 AGENCT. [CH. xni. duct, violated his own proper duty to his principal, if the act was unauthorized, since he thereby subjected the goods of the latter to the peril of confiscation and forfeiture ; and certainly no man can be permitted to found a claim, in a court of justice, upon his own misconduct. Besides, the customs or duties not having been paid, there is no ground to assert that the principal ought to reimburse the agent for what he has not in fact paid, but what, contrary to his duty, he has omitted to pay. Indeed, it is difiS.- cult to perceive how an agent can, in law oi" in morals, found any just claim against his principal, upon -a fraud committed upon a foreign government.^ On the other hand, if the principal, either expressly or impliedly, authorized the agent so to evade the pay- ment of the customs or duties, the principal, and not the agent, ought to have the benefit thereof, unless there be some stipulation to the contrary between them.^ § 344. In respect, to agencies in illegal transactions, the same principles apply as to advances and disbursements by agents, as apply to their commissions.^ None are recoverable, either in law or equity.* For the law will not (as we have already seen) assist any persons in evading the obligations imposed upon the whole community to conform to its directions and prohibitions.^ As ' In 1 Eq. Abridg. 869, 370 (2d ed.), there is a very sensible note on this very point, which deserves to be transcribed, as importing a lofty morality, worthy of universal homage. After referring to the doctrine, that such an evasion of our own laws would be unjustifiable, the writer says, "And why not be deemed a fraud to cheat a foreign state of its customs ? Fraud is always the same, though an allowance in one case is more prejudicial than another. And surely a court of chancery should not connive at any thing so detrimental to good faith, commerce, and reciprocal assurance, as even smuggling into foreign ports. It is not proceeding on the great maxim. Quod tibi non vis, alteri non feoeris, to make any distinction in this case in our favor." It is to be regretted that this doctrine has not been fully carried out and sustained in the commercial law. See Story on Conflict of laws, § 245 ; Planch^ v. Fletcher, Doug. 260; Boucher v. Lawson, Cas. Temp. Hard. 84. See ante, §§ 196-197; Smith on Merc. Law, § 3, p. 56 (2d ed.) ; Id. pp. 100-103 (3d ed. 1843) ; Paley on Agency, by Lloyd, 107, n. (a) ; Molloy, de Jur. Marit. B. 3, ch. 8, §§ 6, 7. " But see Smith v. Oxenden, 1 Ch. Cas. 26 ; 3 Salk. 235. = Ante, § 330. 1 Ante, §§ 196, 196, 235, and note, § 330; Story on Conflict of Laws, §§ 246- 248; 1 Liverm. on Agency, ch. 1, § 2, pp. 14r-21 (ed. 1818) ; Id. ch. 8, § 7, pp. 467-470 ; Josephs v. Pebrer, 3 B. & Cressw. 639 ; The Vanguard, 6 Kob. 207. " Ibid. §§ 343-345.J RIGHTS OP, as to principals. 421 between principals and agents, in all such cases, the guilt is deemed to be equal; and the maxim is, " In pari delicto potior est conditio defendentis ; " i or, as the Pandects state it, " In pari causS. possessor potior haberi debet." ^ The parties, ' therefore, must trust exclusively to the personal faith of each other, as to the fulfilment of their mutual stipulations in illegal transactions. The law will not assist the agent to recover his expenses or advances, or the principal to recover his property or its proceeds. Each party is left precisely where he is found at the time of the controversy to bear the burden of his own abandonment of his duty to the law of his country.^ We "have already seen that this same wholesome doctrine is fully recognized in the foreign law ; * and it can admit of no question that it is deeply founded in the precepts of Christianity. § 345. The civil law proceeded upon the basis of the same wholesome principles. Where money was paid on an illegal or an immoral transaction, in which both parties participated, it could not be recovered from the principal, for whose benefit it was advanced. And, on the other hand, if it had been repaid, it could not be redemanded by the principal. But, where the principal only was engaged in the illegal transaction, there money advanced by the agent innocently, and without knowledge, which enabled the principal to accomplish it, was recoverable by the agent. " [Ob rem] turpem autem, aut ut dantis sit turpitude, non accipi- entis ; aut, ut accipientis duntaxat, non etiam dantis ; aut utrius- que.^ Ubi autem dantis et accipientis turpitude versatur, non posse repeti dicimus. Quotiens autem solius accipientis turpitudo ver- satur, repeti posse.^ Si ob turpem causam promiseris Titio ; quam- vis, si petat, exceptione doli mali, vel in factum summovere eum possis ; tamen si solveris, non posse te repetere ; quoniam, sub- ' Ante, 195, 196, 235 ; Holman v. Johnson, Cowp. 341 ; 1 Liverm. on Agency, ch. 1,.§§2, 14, 15(ed. 1818). ' Dig. Lib. 50, tit. 17, 1. 128; Pothier, Pand. Lib. 12, tit. 5, n. 7. ' Paley on Agency, by Lloyd, 102, 103, 116, 117 ; Josephs v. Pebrer, 3 B. & Cressw. 639 ; Holland li. Hall, 1 B. & Aid. 63 ; Armstrong v. Toler, 11 Wheat. 258 ; Ante, § 235, and note (2). * Ante, §§ 195, 196 ; Pothier, Traits d'Assur. n. 68 ; Dig. Lib. 17, tit. 1, 1. 6, §3; Cod. Lib. 2, tit. 3,1. 6. ' Dig. Lib. 12, tit. 5, 1. 1 ; Pothier, Pan,d. Lib. 12, tit. 6, n. 1. " Dig. Lib. 12, tit. 6, 1. 3, 4, §§ 2, 3 ; Pothier, Pand. Lib. 12, tit. 5, notes 2, 7, 9. "422 AGENCY. [CH. xm. latS. proximo causS, stipulationis, quae propter exceptionem inanis esset, pristina causa, id est, turpitude, superesset. Porro autem, si et dantis et accipient;s turpis causa sit, possessorem potiorem esse. Et ideo repetitionem cessare, tametsi, ex stipulatione solutum est.i § 346. A distinction was formerly attempted to be made be- tween cases which involved an illegality resulting from positive law (malum prohibitum), and an illegality existing in the very nature of the transaction, upon principles of natural, moral, and public law (malum in se). In the former case, it was held, that money, knowingly advanced to or for the principal, upon an illegal transaction, might be recovered by the agent ; in the latter case, that it could not.^ But this distinction is now justly repu- diated.^ Hence, if an agent should be employed to buy smuggled goods, and he should pay for the goods, and they should come to the hands of his employer, the agent could not recover for these advances from the employer.* So, if an agent should knowingly advance money to pay for illegal insurances, or for stock-jobbing transactions of his employer, he coiild not recover it from the latter.^ So, if an agent should knowingly advance money to bis employer to game with, it would not be recoverable.^ § 347. But, although the rule is thus simple and clear in its elements, it is occasionally somewhat nice and difficult in its application to particular cases. A distinction has been taken between cases where the money is knowingly advanced, in fur- therance of an illegal transaction, or where it grows immediately out of it, and cases where the money is knowingly advanced in ' Dig. Lib. 12, tit. 6, 1. 8 ; Potliier, Pand. Lib. 12, tit. 6, n. 10. 2 Faikney i>. Eeynous, 4 Burr. 2069 ; Petrie v. Hannay, 3 T. R. 418. ' Steers v. Lashley, 6 T. R. 61 ; Paley on Agency, by Lloyd, 63, 64, n. (c) ; Id. 120; Bensley v. Bignold, 6 B. & Aid. 336; Ex parte Mather, 3 Ves. 373; Brown V. Turner, 7 T. R. 631 ; Mitchell v. Cockburne, 2 H. Bl. 379 ; Aubert V. Maize, 2 Bos. & Pull. 271; Webb v. Brooke, 3 Taunt. 6; Ex parte Bell, 1 M. & Selw. 751 ; Canaan v. Bryce, 3 B. & Aid. 180, 183 ; Langton v. Hughes, 1 M. & Selw. 594 ; Armstrong v. Toler, 11 Wheat. 268. * Ex parte Mather, 3 Ves. 373 ; Armstrong v. Toler, 11 Wheat. 258. = Stebbins v. Leo Wolf, 3 Cush. 137; Ward v. Van Duzer, 2 Hall; 162; Ex parte Mather, 3 Ves, jr. 373 ; Amory v. Merryweather, 2 B. & Cressw. 575 ; Aubert v. Maize, 2 Bos. & Pull. 271 ; Canaan v. Bryce, 3 B. & Aid. 179. But see Armstrong v. Toler, 11 Wheat. 258 ; Brown v. Duncan, 10 B. & Cressw. 93. « McKinnell v. Robinson, 3 Mees. & Wels. 434. §§ 345-347.] EIGHTS OP, as to principals. 423 a transaction collateral to, although remotely connected with, the illegal transaction. In the latter case, the money advanced may be recovered. The ground of the distinction is, that the new contract, in the latter case, is one degree removed from the origi- nal illegal transaction ; and, as it is in itself perfectly legal in its consideration and formation as an independent contract, it ought not to be tainted by the illegality of the original transaction, although at the time the agent had knowledge of it. Thus, if money due to a principal on an illegal transaction should be paid over to his agent for him by the party from whom it is due, it has been held, that the principal may recover it from the agent ; for the contract of the agent to pay the money to his principal 'is not immediately connected with the illegal transaction ; but it grows out of the receipt of the money for the use of his principal.^ Upon the like ground, it is said, that an agent who has know- ingly made advances to pay the duties due to the government upon goods which have been previously and fraudulently, by a collusive capture, introduced into the country by the principal, but in which transaction the agent had no part or co-operation, may recover such advances.^ So, where goods are smuggled into the country contrary to law, and they are seized, and a pros- ecution is instituted against the principal, if an agent, knowing the facts, should advance money to assist his employer in his ' Tenant v. Elliot, 1 Bos. & Pull. 4 ; Farmer v. Russell, 1 Bos. & Pull. 296. See "Warren v. Manuf. Ins. Co. 13 Pick. 618. In Wetherell v. Jones, 3 B. & Adolph. 212, where spirits had been sold without a regular permit, in violation of law, Lord Tenterden said, "We are of opinion that the irregularity of the permit, though it arises from the plaintiff's own fault, and is a viola- tion of the law by him, does not deprive him of the right of suing upon a contract, which is in itself perfectly legal ; there having been no agreement, express or implied, in that contract, that the law should be violated by such improper delivery. Where a contract which a plaintiff seeks to enforce, is expressly, or by implication, forbidden by the statute or common law, no court will lend its assistance to give it effect ; and there are numerous cases in the hooks where an action on the contract has failed, because either the considera- tion for the promise, or the act to be done, was illegal, as being against the express provisions of the law, or contrary to justice, morality, and sound policy. But where the consideration and the matter to be performed, are both legal, we are not aware that a plaintiff has ever been precluded from recovering by an infringement of the law, not contemplated by the contract, in the perform- ance of something to be done on his part." See also Levy v. Yates, 8 Adolph. & Ellis, 129. ' Armstrong v. Toler, 11 Wheat. 258. 424 AGENCY. [CH. XIH. defence upon that occasion, it is said, that he may recover the money advanced from his principal ; because such advance is upon a new and valid contract, unconnected with the original illegal act, although remotely caused by it.^ But in all these cases, so put, if the agent is connected with the original illegal transaction, or the advance is a part of the original scheme, and in furtherance of it, it will not be recoverable from the principal ; for then the agent is properly to be deemed a partaker in the illegality, particeps eriminis 2 ' Armstrong v. Toler, 11 Wheat. 258. ' Armstrong v. Toler, 11 Wheat. 258 : Farmer v. Russell, 1 Bos. & Pull 296, per Eyre, Ch. & Brooke, J. ; , Warren o. Manuf. Ins. Co. 13 Pick. 518. The opinion of Brooke, J., is very able and exceedingly difficult to be answered. He puts the grounds against a recovery in a very strong light. The cases in the books are not easily reconcilable with each other; andFaikney V. Reynous (4 Burr. 2069), and Petrie v. Hannay (3 T. R. 418), are deemed to be overruled in England. They, however, were not so treated in the supreme court of the United States, in Armstrong v. Toler (11 Wheat. 258). In this last case, the subject was very much considered, and the leading author- ities then existing critically examined. In this case, Toler brought an action to recover money paid by him on account of the goods of Armstrong and others, consigned to Toler, which had been seized as imported contrary to law . Toler, upon the seizure, became a surety on the stipulation bond given upon the delivery up of the goods under the seizure, to abide the event of the suit ; and Armstrong's portion of the goods was delivered to him upon his promise to pay Toler his proportion of the amount for which Toler should become liable. The goods were condemned ; and Toler paid the appraised value, and brought this action to recover the amount of the money so paid for Armstrong's propor- tion of the goods. At the trial, Armstrong founded his defence upon the ille- gality of the transaction. Mr. Justice Washington at the trial, said, " The rule of law under which the defendant seeks to shelter himself against a com- pliance with his contract, to indemnify the plaintiff for all sums, which he might have to pay on account of the goods shipped from New Brunswick for the defendant, and consigned to the plaintiff, is a salutary one, founded in morality, and good policy, and -which recommends itself to the good sense of every mefi, as soon as it is stated. The principle of the rule is, that no man ought to be heard in a court of justice who seeks to enforce a contract founded in, or aris- ing out of, moral or political turpitude. The rule itself has sometimes been carried to inconvenient lengths ; the difficulty being, not in any unsoundness in the rule itself, but in its fitness to the particular cases to which it has been ap- plied. Do6s the taint in the original transaction infect and vitiate every con- tract growing out of it, however remotely connected with it? This would be to extend the rule beyond the policy which produced it, and would lead to the most inconvenient consequences. Carried out to such an extent it would de- serve to be entitled a rule to encourage and protect fraud. So far as the rule §§ 347, 348.J RIGHTS OP, as to principals. 425 § 348. An agent may not only forfeit his title to the repay- ment of advances and disbursements, made by him on account of his principal, where the transactions are founded in illegality ; operates to discourage the perpetration of an immoral or illegal act, it is founded in the strongest reason ; but it cannot safely be pushed further. If, for example, the man who imports goods for another by means of a violation of the laws of his country, is disqualified from founding any action upon such illegal transaction for the value or freight of the goods, or other advances made on them, he is justly punished for the immorality of the act, and a power- ful discouragement from the perpetration of it is provided by the rule. But after the act is accomplished, no^ew contract ought to be affected by it. It ought not to vitiate the contract TO the reta,il merchant who buys these goods from the importer, that of the tailor who purchases from the merchantj or of the customers of the former amongst whom the goods are distributed in cloth- ing, although the illegality of the original act was known to each of the above persons, at the time he contracted. I understand the rule as now clearly set- tled, to be, that where the contract grows immediately out of, and is connected with, an illegal or immoral act, a court of justice will not lend its aid to enforce it. And if the contract be in part only connected with the illegal transaction, and growing immediately out of it, though it be, in fact, a new contract, it is equally tainted by it. The case before supposed, of an action for the value of goods illegally imported for another, or freight and expenses attending, founded upon a promise, express or implied, exemplifies a part of the above rule. The latter part of it may be explained by the following case. As, if the importation was the result of a scheme to consign the goods to the friend of the owner, with the privity of the former, that he might protect and defend them for the owner in ease they should be brought into jeopardy, I should consider a bond or prom- ise afterwards given by the owner to his friend, to indemnify him for his ad- vances on account of any proceedings against the property or otherwise, to constitute a part of the res gestae, or of the original transaction, though it pur- ports to he a new contract. For it would clearly be a promise growing imme- diately out of, and connected with, the illegal transaction. It would be, in fact, all one transaction ; and the party to whom the promise was made, would, by such a contrivance, contribute, in effect, to the success of the illegal measure. But, if the promise be unconnected with the illegal act, and is founded on a new consideration, it is not tainted by the act, although it was known to the party to whom the promise was made, and although he was the contriver and conductor of the illegal act. Thus, if A. should, during war, contrive a plan for importing goods from the country of the enemy on his own account, by means of smuggling, or of a collusive capture, and in the same vessel should be sent goods for B. ; and A. should, upon the request of B., become surety for payment of the duties, or should undertake to become answerable for expenses on account of a prosecution for the illegal importation, or should advance money to B., to enable him to pay those expenses ; these acts constituting no part of the original scheme, here would be a new contract, upon a valid and legal con- sideration, unconnected with the original act, although remotely caused by it ; and such contract would not be so contaminated by the turpitude of the offensive 426 AGENCY. , [CH. XIII. but he may also, by his own gross negligence or fraud or mis- conduct in his agency, be escluded from all remedy against his principal, even for his advances and disbursements made in the act, as to turn A. out of the court, when seeking to enforce it, although the il- legal introduction of the goods into the country, was the consequence of the scheme projected by A. in relation to his own goods." On a writ of error, the supreme court held, that there was no error, in this ruling of the court below. • Mr. Chief Justice Marshall, in delivering the opinion of the court, commented on the leading authorities and principles ; and especially on the charge of the court below. After quoting the opinion, he said, "If this opinion be contrary to law, the judgment ought to be reversed.. The opinion is, that a new con- tract, founded on a new consideration, although in relation to property respect- ing which there had been unlawful transactions between the parties, is not itself unlawful. This general proposition is illustrated by particular examples, and will be best understood by considering the examples themselves. The case supposed is, that A., during a war, contrives a plan for importing goods on his own account, from the country of the enemy, and that goods are sent to B., by the same vessel. A., at the request of B., becomes surety for the payment of the duties, which accrue on the goods of B., and is compelled to pay them; can he maintain an action on the promise of B., to return this money? The opin- ion is, that such an action may be sustained. The case does not suppose A. to be concerned, or in any manner instrumental in promoting the illegal importa- tion of B. ; but to have been merely engaged himself in a similar illegal trans- action, and to have devised the plan for himself, which B. afterwards adopted. This illustration explains what was meant by the general words previously used, which, unexplained, would have been exceptionable. The contract, made with the government for the payment of duties, is a substantive, independent con- tract, entirely distinct from the unlawful importation. The consideration is not infected with the vice of the importation. If the amount of duties be paid by A. for B., it is the payment of a debt due in good faith from B. to the govern- ment; and, if it may not constitute the consideration of a promise to repay it, the reason must be, that two persons, who are separately engaged in an unlaw- ful trade, can make no contract with each other ; at any rate, no contract, which, in any manner, respects the goods unlawfully imported by either of them. This would be to connect distinct and independent transactions with each other, and to infuse into one, which was perfectly fair and legal in itself, the contaminating matter which infected the other. This would introduce extensive mischief into the ordinary affairs and transactions of life, not compensated by any one ac- companying advantage. The same principle, diversified in form, is illustrated by another example. If A. should become answerable for expenses on account of a prosecution for the illegal importation, or should advance money to B., to enable him to pay those expenses, these acts, the court thought, would consti- tute a new contract, the consideration of which would be sufficient to maintain an action. It cannot be questioned, that, however strongly the laws may de- nounce the crime of importing goods from the enemy in time of war, the act of defending a prosecution instituted in consequence of such illegal importation, is perfectly lawful. Money advanced, then, by a friend, in such a case, is ad- § 348.] EIGHTS OP, AS TO PRINCIPALS. 427 course of legal transactions. Thus, for example, if an agent should be guilty of gross negligence, either in selling the goods of his principal to persons who are notoriously insolvent, or in omitting to sell them at the proper time contrary to his orders, whereby they are totally lost to his principal, he will not be en- titled to recover from his principal any advances or disbursements, made by him on the same goods.^ So, if he should purchase and pay for goods on account of his principal, and by his gross vanced for a lawful purpose, and a promise to repay it is made on a lawful consideration. The criminal importation constitutes no part of this considera- tion. It is laid down with great clearness, that, if the importation was the re- sult of a scheme between the plaintiff and defendant, or if the plaintiff had any interest in the goods, or if they were consigned to him with his privity, that he might protect and defend them for the owner, a bond or promise, given to re- pay any advances made in pursuance of such understanding or agreement, ■would be utterly void. The questions, whether the plaintiff .had any interest in the goods of the defendant, or was the contriver of, or concerned in, a scheme to introduce them, or consented to become the consignee of the defendant's goods, with a view to their introduction, were left to the jury. The point of law decided is, that a subsequent independent contract, founded on a new con- < sideration, is not contaminated by the illegal importation, although such illegal importation was known to Toler when the contract was made, provided he was not interested in the goods, and had no previous concern in their importation." The recent authorities, since this case was decided, have not entirely cleared the subject of all difficulty. The distinction between the cases in which a recovery can be had, and the cases in which a recovery cannot be had, of money con- nected with illegal transactions, which seems now best supported, is this : that, wherever the party seeking to recover is obliged to make out his case by show- ing the illegal contract or transaction, or through the medium of the illegal contract or transaction, or when it appears that he was privy to the original illegal contract or transaction , there he is not entitled to recover any advances made by him, connected with that contract. But, when the advances have been made upon a new contract, remotely connected with the original illegal con- tract or transaction, but the title of the party to recover is not dependent upon that contract, but his case may be proved without reference to it, there he is entitled to recover. See Paley on Agency, by Lloyd, 62-64, and notes ; Id. 116-119, note (t) ; Id. 120, 121. Mr. Evans, in his edition of Pothier on Ob- ligations, Vol. 2, App'x No. 1, pp. 1-19, has examined this whole subject with great diligence and ability. His conclusion is, that money advanced to pay the debt of another, due upon an illegal transaction, may be recovered by the party lending it, from the party for whom it is advanced, if the lender was not a party to the original transaction, or it was not a part of the original scheme ; although, at the time of the advance, he knew of the illegality. ' Dodge «. Tileston, 12 Pick. 328, 332. See also. Savage v. Birckhead, 20 Pick. 167. 428 AGENCY. [CH. XIII. negligence or disobedience of orders, the goods are not forwarded to the principal at the proper time, but are afterwards destroyed by fire, or other accident, in their transit, before they reach the principal, the agent will not be entitled to recover for the money so paid for the goods.^ Where the loss does not go to the totality of the claim, the principal will still be entitled to be indemnified, pro tanto, to the extent of the loss, by recouping or deducting the amount from the sum due to the agent for his advances and dis- bursements.^ § 349. It follows, from what has been already stated, that, if an agent incurs expenses, or makes disbursements, after his authority is revoked, and he has notice of the revocation, he can- not make his principal liable therefor. A revocation maj^ be by the act of the party or by operation of law.^ The former re- quires no explanation in this place. The latter may arise in various ways. Thus, for example, it may arise, where the prin- cipal becomes a bankrupt, and is thereby rendered incapable of acting any further in the disposition of the property, or other , subject-matter of the agency.* In such a case, all payments and advances made by an agent, after notice of the bankruptcy of his principal, on account of such property, or other subject-matter, will be treated as made by the agent in his own wrong, so far as the assignees are concerned, and will be disallowed accordingly.^ So, also, in the case of the death of thfe principal, the agency determines by mere operation of law, and similar consequences will follow.^ But upon this subject we shall have occasion to speak more fully hereafter.^ § 350. In respect to the personal remedies, by which the various rights of the agent may be enforced, the consideration • Williams v. Littlefield, 12 Wend. 362. " Dodge V. Tileston, 12 Pick. 328, 332. = Paley on Agency, by Lloyd, 184-189 ; 3 Chitty on Com. & Manuf. 223, 224; Post, §§ 463-469, 480-496. * Post, §§ 408, 482, 483. <• Vernon «. Hankey, 2 T. R. 113; Copeland v. Stein, 8 T. R. 204; Hankey V. Vernon, 3 Bro. Ch. 314; Paley on Agency, by Lloyd, 121, 122,-187; Post, § 402. Perhaps an exception may properly exist, as to expenses incurred from necessity to preserve the property, while it remains in the possession of the agent. « Post, §§ 448, 490, 496 ; 8 Chitty on Com. & Manuf."223. ' Post, §§ 462-500. §§ 348-350.] EIGHTS OF, AS TO PRINCIPALS. 429 thereof properly belongs to a treatise upon actions, or other remedial processes. It may, however, be generally stated, that an agent may insist upon deducting all his advances, expenses, disbursements, and losses, arising in the course of his agency, whenever they are definite and certain, and do not merely sound in damages, from the pecuniary funds in his hands belonging to his principal, by way of recouper, discount, or set-off.^ Or, where no such funds exist, he may maintain an action at law, or a bill in equity, as the case may require, for the recovery thereof.^ Where an agent is a factor in a foreign country, and purchases goods on his own credit for his principal, and ships them to the latter, he is deemed, as between himself and his principal, to be in the same predicament, and entitled to the same rights and remedies, as any common vendor and consignor of the goods ; and, consequently, he has the right of stoppage in transitu, in case the principal fails, or becomes insolvent, before the transit of the goods is ended by delivery thereof to the principal.^ The case here supposed is where the shipment is made for and consigned to the principal for his account and risk. The same prin- ciple applies, a fortiori, to the case, where the consignment is made to the order of the factor ; for then he is deemed still to retain the constructive possession of the goods, and consequently he has not only the right of stoppage in transitu, but also the right of lien for his general balances, like that of factor retaining the actual possession of the goods.* ' Paley on Agency, by Lloyd, 124-126 ; Id. Ill, 112, note ; 2 Liverm. on Agency, 34 (ed. 1818); Dale v. Sollett, 4 Burr. 2133 ; Green «. Farmer, 4 Burr. 2220, 2221 ; Dinwiddle v. Bailey, 6 Ves. 142 ; Ante, § 344; Post, § 386. ° Ibid. ' Paley on Agency, by Lloyd, 144, 145 ; Frieze ». Wray, 3 East, 93 ; D'Aquila v. Lambert, Ambler, 400 ; Snee v. Prescott, 1 Atk. 246 ; s. c. 6 East, 28, note; Sifkin v. Wray, 6 East, 371; Abbott on Shipp. Pt. 3, ch. 9, § 5, p. 369 (Amer. ed. 1829) ; 2 Liverm. on Agency, 120-123 (ed. 1818) ; Ante, §§ 268, 290; Post, §§ 400, 423, 448. * Paley on Agency, by Lloyd, 144, 146. See also Sweet v. Pym, 1 East, 4 ; Post, §§ 361-390. 430 AGENCY. [CH. XIT. CHAPTER XIV. RIGHT OP LIEN OP AGENTS. [* § 351. Eight of lien of agent to be considered. 352. Definitions of liens. 353. Lien of agents generally, mere right to retain a thing of which they have posses- sion until their charge upon it is paid. 354. Particular and general liens described. 355. All liens arise, strictly speaking, by operation of law. 356. Applicable, however, to the right in cases arising from contract. 356 a. Origin of liens in Eoman law same. 357. Particular liens recognized and enforced in the Roman law. 358. General liens not distinctly recognized in the Roman law. 359. How a lien may be acquired. 360. Must be acquired through the owner. 361. Party asserting lien must have actual or constructive possession of the thing with the consent of person against whom it is asserted. 362. 362 a. Lien must be consistent with the terms or intent of the contract. 363. Similar doctrine in the Roman law. 364. Liens generally attach only to certain and liquidated demands. 365. Debt for which lien is asserted must be due to the party asserting it in his own right. Other requisites. 366. Lien lost by any act or agreement between the parties by which it is surrendered or becomes inapplicable. 367. Voluntary parting with the possession of the goods, a waiver of lien. 368. Case of factor selling goods of his principal an exception. 369. Other exceptions. 370. Lien sometimes will reattach upon property coming again into possession of party entitled to lien. . 371. Generally remedy of holder of lien confined to mere right of retainer. 372. Eight of lien, qualified right. It is also a personal privilege. 373. How far liens of agents extend. 374. How far liens of factors. 375. General liens, origin of. 876. Factors have a general hen upon all the goods of their principals in their hands for the general balance of accounts between them. 377. Factor's lien attaches to goods in transitu to factor at death of principal. 378. General lien of factors deemed to exist in all cases until contrary presumption is clearly established. 379.* How far lien of insurance brokers extends. 380. Bankers have a general lien on the notes and securities of customers deposited with them for the balance due on general account. 381. Right may be controlled by agreement; repelled by circumstances showing that it was not the intention. 382. Common carriers have a particular and sometimes a general lien. 383. How far lien of attorneys-at-law and solicitors in equity extends. 384. Certain particular classes of agents have a general lien. 385. Agent not confined to his lien ; but principal is still liable. 386. General rule that sub-agents stand in the same relation to agents employing them, as if they were sole principals. §§351,352.] BIGHT OP LIEN OP AGENTS. 431 387. Where agent has no authority to employ sub-agent no privity will exist between him and principal ; and his sole remedy will be against, and his sole responsi- bility t0( his immediate employer. 388. Where a pririty exists between sub-agent and principal, sub-agent will have a lien ; but if there is no privity there will be no lien, except the substituted lien of the agent. 389. If principal adopts the acts of unauthorized sub-agent, or takes the benefit of them, it gives such sub-agent a lien. 390. Where sub-agent acts with reason to believe that agent employing him is prin- cipal, he may have a lien.] § 351. Independent of the personal remedies, already alluded to, by agents against their principals, for the payment of their commissions, advances, disbursements, and responsibilities, in the course of their agency, there is an established right, which, in many cases, becomes more important and effectual than any other means of remedial redress, that is to say, the right of hen of agents. To the consideration thereof we shall now proceed. § 852. A lien has been defined to be a right in one man to retain that which is in his possession belonging to another, until certain demands of him, the person in possession, are sat- isfied.i It is a qualified right, therefore, which may be exercised OTer the property of another person ; and it is founded in natural justice, and the general convenience of commerce and business.^ It is sometimes said, that, in strictness of law, it is not either a jus in re, or a jus ad rem, that is to say, it is not a right of prop- erty in the thing itself, or a right of action to the thing itself.^ These descriptions are suf&ciently clear to represent the general character of liens. But there are liens, which properly consti- tute, not merely a right to retain the possession of a thing, but * also a right or charge upon the thing itself. Such is the lien of a vendor upon the real estate sold, for the purchase-money ; and that of a bottomry bond-holder upon the ship, for the money 1 Per Grose, J., in Hammond v. Barclay, 2 East, 227 ; Gladstone v. Birley, 2 Meriv. 404 ; 2 Liverm. on Agency, 34, 36 (ed. 1818) ; Paley on Agency, by Lloyd, 127 ; 2 Kent, Comm. Lect. 41, p. 634 (4th ed.) ; Holland's Assignees ». Humble's Assignees, 1 Starkie, 143. ' Per BuUer, J., in Lickbarrow v. Mason, 6 East, 21 n ; Kirkman v. Shaw- cross, 6 T. R. 19 ; 2 Kent, Comm. Lect. 41, p. 634 (4th ed.) ; Green v. Farmer, 4 Burr. 2221. ' Brace v. Duchess of Marlborough, 2 P. Will. 491 ; Gilman v. Brown, 1 Mason, 221 ; 1 Storjr on Eq. Jurisp. § 206 ; 2 Story on Eq. Jurisp. § 1215. 432 AGENCY. [CH. XIT. lent.^ And, so far from a lien being a mere right to retain the possession of a thing, it is in many cases wholly disconnected from the possession ; as is the case of the lien of a vendor, as above stated, for the purchase-money ; and that of a bottomry bond-holder, for the money due to him, and also that of mariners on the ship and freight, for their wages.^ § 353. The lien of agents, however, generally (although not universally) falls within the common definition above alluded to, of a mere right to retain a thing, of which the party has posses- sion, until some charge upon it is paid or removed.^ In this respect, it is like the lien or right of retainer of common carriers, wharfingers, shipwrights, blacksmiths, and other artificers ; and probably was derived from the same general principle of the common law, which gives to a man who has the lawful possession of a thing, and has expended his money or labor upon it at the request of the owner, a right to retain it until his demand is satisfied.* § 354. Liens are also divisible into two sorts, particular and general. A particular lien is usually defined to be the right to retain a thing for some charge or claim growing out of, or con- nected with, that identical thing ; such as for labor or services or expenses bestowed upon that identical thing.^ Of this nature are the common liens already alluded to, of agents, carriers, and artificers, for their labor, or for money expended upon the thing intrusted to them for particular purposes. These liens are gen- erally favored at the common law, as resting on natural equity, and the general convenience of trade and commerce.^ A general ' 2 Story on Eq. Jurisp. §§ 1215-1217. t " 1 Story on Eq. Jurisp. § 606 ; 2 Story on Eq. Jurisp. §§ 1216, 1217. ^ 2 Kent, Comm. Lect. 41, p. 684 (4th ed.) ; Montagu on Liens, 1 ; Wilson r. Balfour, 2 Campb. 579 ; Sx parte Heywood, 2 Rose, 357 ; Smith on Merc. Law, 336 ■(2d ed.) ; Id. 514, 515 (3d ed. 1843). " Paley on Agency, by Lloyd, 127 ; 2 Kent, Comm. Lect. 41, pp. 634, 635 (4th ed.) ; Scarfe v. Morgan, 4 Mees. & Wels. 270, 283. * Paley on Agency, by Lloyd, 127 ; 3 Chitty on Cora. & Manuf. 637 2 Kent, Comm. Lect. 41, p. 634 (4th ed.) 2 Liverm. on Agency, 86 (ed. 1818) Smith on Merc. Law, 337 (2d ed.) ; Id. B. 4, ch. 2, p. 610 (3d ed. 1843) Houghton V. Mathews, 3 Bos. & Pull. 485, 494 ; Bevans v. Waters, 3 Carr. & Payne, 620 ; Scarfe v. Morgan, 4 Mees. & Wels. 270, 283 ; 2 Bell, Comm. § 773 (4th ed.) ; Id. pp. 90, 91 (5th ed). « Ibid. ; Ex parte Deeze, 1 Atk. 228 ; Green v. Earmer, 4 Burr. 2221 ; Scarfe «. Morgan, 4 Mees. & Wels. 270, 283 ; Chase v. Westmore, 6 Mer. §§ 352-355.] RIGHT OP LIEN OF AGENTS. 433 lien is a right to retain a thing, not only for charges and claims specifically arising out of, or connected with, that identical thing, but also for a general balance of accounts between the parties, in respect to other dealings of the like nature.^ It is less favored, and is construed somewhat more strictly, by courts of law, than a particular lien ; although, certainly, the tendency of late years, in the commercial community, has been rather to expand than to restrict the cases, in which it is to be implied by the usage of trade.2 § 355. In regard to particular liens, they may arise in various ways. First, by an express contract ; secondly, by an implied contract, resulting from the usage of trade, or the manner of dealing between the parties; or, thirdly, by mere operation of law, from the legal relation and acts of the parties, independently of any contract.^ The last is generally deemed the true source of the particular lien of salvors, innkeepers, common carriers, farriers, blacksmiths, tailors, shipwrights, and other artisans.* & Selw. 180. • In Scarfe v. Morgan, 4 Mees. & Wels. 283, Mr. Baron Parke, in delivering the opinion of the court, said, " The principle seems to be well laid down in Bevan v. Waters, 1 Mood. & Malk. 235 ; s. o. 3 Carr. & Payne, 520, by Lord Chief Justice Best, that where a bailee has expended his labor and skill in the improvement of a chattel delivered to him, he has a lien for his charge in this respect. Thus, the artificer, to whom the goods are delivered for the purpose of being worked into form ; or the farrier, by whose skill the animal is cured of a disease ; or the horse-breaker, by whose skill he is rendered manageable, have liens on the chattels in respect of their charges. And all such specific liens, being consistent with the principles of natural equity, are favored by the law, which is construed liberally in such cases." See also Chase V. Westmore, 5 M. & Selw. 180. , ' Paley on Agency, by Lloyd, 127 ; 3 Chitty on Com. & Manuf. 637 ; 2 Kent, Cotom. Lect. 41, p. 634 (4th ed.) ; 2 Liverm. on Agency, 36 (ed. 1818) ; Smith on Merc. Law, 337 (2d ed.) ; Id. B. 4, ch. 2, p. 610 (3d ed. 1843) ; 2 Bell, Coram. § 773 (4th ed.) ; Id. pp. 90, 91, 106 (6th ed.). ' Ibid. ; Montagu on Liens, 1, and eases there cited; Houghton u. Mathews, 3 Bos. & Pull. 486 ; Rusbforth v. Hadfield, 7 East, 228 ; Holderness v. CoUin- son, 7 B. & Cressw. 212 ; 3 Chitty on Com. & Manuf. 644 ; Paley on Agency, by Lloyd, 142, 143 ; Gladstone v. Birley, 2 Meriv. 404 ; Williams v. Littlefield, 12 Wend. 362; Smith on Merc. Law, B. 4, ch. 2, pp. 611-616 (3d ed. 1843). ^ 3 Chitty on Com. & Manuf. 638, 639 ; Green v. Farmer, 4 Burr. 2221 ; Paley on Agency, by Lloyd, 127, 128; Montagu on Liens, Pt. 2, ch. 1, 2, pp. 26-40 ; Scarfe v. Morgan, 4 Mees. & Wels. 270 ; 2 BeU, Comm. § 773 (4th ed.); Id. pp. 90, 91 (6th ed.). * 3 Chitty on Com. & Manuf. 638-640,- 643 ; Green v. Farmer, 4 Burr. 2221 ; Smith on Merc. Law, 336-339 (2d ed.) ; Id. B. 4, ch. 2, § 2, pp. 511-616 (3d AGENCY. 28 434 AGENCY. [CH. XIT. But, general liens not being (as we have seen) ^ favored in the law, they must be maintained upon some one of the two former grounds ; that is to say, upon the ground of an express contract, or that of an implied contract, resulting from the usage of trade or from the previous dealings between the parties.^ § 356. Indeed, it might perhaps, in strict propriety of lan- guage, be said, that all liens arise by operation of law ; and that, where they arise by a contract, express or implied, they are more properly pledges or hypothecations than liens. It was upon one occasion said, by a learned judge, that " The right of lien does not arise out of any contract whatsoever, but out of a right to hold property till the party claiming the lien has been paid for the operation he performs." ^ And, upon another occasion, another learned judge used expressions still more direct, saying : " Lien, in its proper sense, is a right which the law gives. But it is usual to speak of lien by contract, though that is now in the nature of an agreement for a pledge. Taken either way, how- ever, the question always is, whether there be a right to detain the goods till a given demand shall be satisfied. That right must be derived from law or contract." * Whatever may be the critical force of these remarks, the indiscriminate use of the word lien, as applicable to the right in cases arising from contract, as well as in cases arising by operation of law, is now become so universal, that it would be a vain refinement to attempt to recall or to perpetuate any distinction between them.* ed. 1843) ; 2 Kent, Comm. Lect. 41, pp. 634-636 (4th ed.) ; Story on Bailm. § 440 ; Blake v. Nicholson, 3 M. & Selw. 167 ; Chase v. Westmore, 5 M. & Selw. 180. ' Ante, § 854. " Paley on Agency, by Lloyd, 127, 128 ; 3 Chitty on Com. & Manuf. 644, 546, 647 ; 2 Kent, Comm. Lect. 41, p. 636 (4th ed.) ; 2 Liverm. on Agency, 36, 86 (ed. 1818); Gladstone v. Birley, 2 Meriv. .404; Jarvis v. Rogers, 15 Mass. 389, 394, 396 ; Post, § 375. ' By Lord Chief Justice Gibbs, in Wilson v. Heather, 5 Taunt. 642, 646. * Sir Wm. Grant, in Gladstone v. Birley, 2 Meriv. 404. " In Scarfe ». Morgan, 4 Mees. & Wels. 278, Mr. Baron Alderson said, " A lien may be created by contract, and it may arise out of an express contract, or a contract by the custom of trade.'' See also Cowell v. Simpson, 16 Ves. 275 ; Chase v. Westmore, 5 M. & Selw. 180; Jarvis v. Rogers, 15 Mass. 389, 394; Smith V. Plummer, 1 B. & Aid. 582, by Bayley, J. ; 2 Bell, Coram. § 793 (4th ed.) ; Id. pp. 90, 9i; 97 (6th ed.) ; Smith on Merc. Law, B. 4, ch. 2, § 2, pp. 611-516 (3d ed. 1843). §§ 355-357.] EIGHT OP LIEN OP AGENTS. 435 § 356»a. The Roman law derived its own liens, whether they were pledges or hypothecations or simple privileges from similar- sources. They might arise from a contract, either express or implied, or they might arise by mere operation of law. They might be express. " Oontrahitur hypotheca per pactum con- ventum ; cum quis paciscatur, ut res ejus propter aliquam obligationem sint hypothecae nomine obligatse. Nee ad rem pertinet, quibus fit verbis.i Sicuti est et in his obligationibus, quae consensu contrahuntur." They might be implied, or arise by tacit consent. "Pignori esse credantur; quasi id tacite con- venerit." ^ They might arise by mere operation of law, as in the case of repairs by artificers. " Qui in navem exstruendam vel instruendam credidit, vel etiam emendam, privilegium habet." ^ § 357. Particular liens were fully recognized and enforced in the Roman law, wherever money or labor or services had been expended on account of the property demanded.^ In that law they were well known under the denomination of privileges, and, in many instances, they gave a right of priority of satisfaction, even over claims which were antecedent in point of time. " Privilegia non ex tempore sestimantur, sed ex causS, ; et, si ejusdem tituli fuerunt, concurrunt, licet diversitates temporis in his fuerint.^ Interdum posterior potior est priori ; utputa, si in rem istam conservandam impensum est, quod sequens credidit." ^ Thus, persons advancing their money to improve the property, shipwrights, architects, undertakers, workmen, artificers, and carriers, were entitled to a lien or privilege on the property. " Creditor, qui ob restitutionem sedificiorum crediderit, in pecuni^, qua! credita erit, privilegium exigendi habebit.^ Qui in navem exstruendam, vel instruendam credidit, vel etiam emendam privi- legium habet.^ Item, si quis in merces sibi obligatas crediderit, vel nt salvse fiant, vel, ut naulum exsolvatur, potentior erit, licet ■ posterior sit. Nam et ipsum naulum potentius est. Tantundem ' Dig. Lib. 20, tit. 1. 1. 4; 1 Domat, B. .3, tit. 1, § 2, art. 6. ' Dig. Lib. -20, tit. 2, L 4; 1 Domat, B. 3, tit. 1, § 2, art. 5. ' Dig. Lib. 22, tit. 6, L 26 ; 1 Domat, B. 3, tit. 1, § 6, art. 5. * 2 Story, Eq. Jurisp. §§ 1221-1223. ' Dig. Lib; 42, tit. 5, 1. 32 ; 1 Domat, B. 3, tit. 1, § 6, art. 1. " Dig. Lib. 20, tit. 4, L 6 ; 1 Domat, B. 3, tit. 1, § 6, art. 2, 3. ' Dig. Lib. 42, tit. 6, L 24, § 1 ; 1 Domat, B. 3, tit. 1, § 6, art. 6. " Dig. Lib. '42, tit. 6, L 26 ; 1 Domat, B. 3, tit. 1, § 6, art. 6-11 ; Ante, 366. 436 AGENCY. [CH. XIV. dicetur, et si merces horreorum, vel areas, vel Tecturse jumentorum debetur. Nam et hie potentior erit." ^ A factor was entitled to a similar privilege for his advances and disbursements to pre- serve the property, for the plain reason, that he thereby insured the preservation of the property. " Hujus enim pecunia salvam fecit totius pignoris causam."^ The same rule was applied to the depositaries, mandataries, and other agents ; and the property might be retained in the nature of a pledge. " Quasi pignua retinere potest eam rem." ^ Indeed, the civil law went much further than our law upon this subject ; for it gave a particular lien or privilege to persons who advanced their moneys to others for the improvement, repair, purchase, or building of houses, ships, and other things.* In many cases, too, the civil law made the lien equivalent to a pledge, or what is sometimes called a tacit mortgage.^ § 358. General liens do not seem to have been distinctly recog- nized in the Roman law, although it is highly probable that they would be enforced, as in the nature of a pledge, in cases of express contracts for the purpose.^ In some cases, indeed, the party might avail himself of the defence by way of set-off, or compen- sation, as it was called in the Roman law, on account of a general balance of accounts. But this was rather a right resulting from a general doctrine of law, in respect to the extinguishment of mutual claims of the same nature, such as mutual debts, than a distinct right to retain the thing itself for such balance.^ Pothier points out the very distinction, in the case of a deposit. " The depositary cannot, indeed, oppose to the restitution of the deposit a compensation of the credits which he has against the person who intrusted him with it, when these credits arise upon other accounts. But, when the credit arises from the deposit itself, as / Dig. Lib. 20, tit. 4, 1. 6, §§ 1, 2; 1 Domat, B. 3, tit. 1, § 5, art. 11. '= Dig. Lib. 20, 1. 6, Introd. ; 2 Liverm. on Agency, 36, 37 (ed. 1818). ' Pothier on Oblig. u. 589, by Evans (in the French editions, F. 625) ; 1 Do- mat, B. 3, tit. 1, § 5, art. 8 ; Story on Bailm. §§ 121, 197, 367, 358 ; Ayliffe's Pand. B. 4, tit. 17, pp. 621, 622 ; Pothier de D^pot, n. 69 ; Pothier, Trait* de Mandat. notes 69, 78, 79; Cod. Lib. 4, tit. 35, 1. 4; Ante, § 366. * Domat, B. 3, tit. 1, § 5, art. 5-8; Dig. Lib. 42, tit. 6, 1. 26, 34; Cod. Lib. 1, tit. 8, 1. 7 ; Id. tit. 14, 1. 17. s 1 Domat, B. 3, tit. 2, § 2, art. 6 ; Dig. Lib. 20, tit. 1, 1. 4 ; Id. tit. 2, 1. 4. « 2 Liverm. on Agency, 36 (ed. 1818) ; Ante, §§ 356, 357. ' 2 Bell, Comm. 772, 773 (4th ed.) ; Id. pp. 90, 91 (5th ed.). §§ 357-360.] EIGHT OP LIEN OP AGENTS. 437 for the expenses which he has been obliged to incur for the preservation of it, there is a right of compensation, not only in the case of an irregular deposit, but also with respect to the deposit of a specific thing, which may be retained, quasi quodam jure pignoris, until the credit is discharged." ^ § 359. Having thus considered the nature of liens, particular as well as general, it may.be proper to say a few words : (1.) In relation to the manner and circumstances under which they are acquired. (2.) To what claims they properly attach. (3.) How they may be waived or lost ; and (4.) In what manner they are to be enforced or taken advantage of. § 360. First. As to the manner and circumstances under which a lien may be acquired. To create a valid lien, it is essential, that the party through whom or by whom it is acquired, should himself either have the true and just ownership of the property, or, at least, a right to vest it. If therefore he is not the true owner of the property ; or if he has no rightful power to dispose of the same, or to create a lien ; or if he exceeds his authority ; or if he is a mere wrong-doer ; or if his possession is tortious ; in these and -the like cases, it is obvious, that he cannot ordinarily create a lien, or confer it on others.^ If the rule were otherwise, it would enable the party to give to others what he did not him- self possess, which would violate the general maxim (which has but few exceptions), that he who has no title himself, cannot transfer a title to another : " Nemo plus juris ad alium transferre potest, quam ipse haberet." ^ It would be easy to multiply illus- ' Pothier on Oblig. n. 689, by Evans (in the French editions, No. 626). See also 2 Liverm. on Agency, 36 (ed. 1818); 2 Bell, Comm. §§ 772, 773; Id. pp. 90, 91 (6th ed.). In the Scottish law, the doctrine of lien is known by the name of Retention ; and that of set-off by the name of Compensation. 2 BeU, Comm. § 772 (4th ed.) ; Id. pp. 90, 91 (5th ed.) ; Id. 105, 106. = Paley on Agency, by Lloyd, 128-131, 134, 139, 140 ; 2 Bell, Comm. § 774 (4th ed.) ; Id. 90, 92 (6th ed.) ; 3 Chitty on Com. & Manuf 547, 548 ; Hiscox V. Greenwood, 4 Esp. 174; Burn ». Brown, 2 Starkie, 272; Madden v. Kempster, 1 Campb. 12 ; Lanyon ». Blanchard, 2 Campb. 597 ; Jackson v. Clark. 1 Y. & Jerv. 216 ; 2 Liverm. on Agency, 38, 39, 69, 70 (ed. 1818) ; 2 Kent. Comm. Lect. 41, pp. 638, 639 (4th ed.) ; Lempriere v. Pasley, 2 T. R. 485 ; McCombie v. Davies, 7 East, 5 ; Maans.s v. Henderson, 1 East, 533 ; Ogle V. Atkinson, 5 Taunt. 763 ; Montagu on Lien, Pt. 4, ch. 4, p. 68 ; Smith on Merc. Law, B. 4, ch. 2, pp. 511-616 (3d ed. 1843). ' Dig. Lib. 60, tit. 17, 1. 64; Pothier, de Vente, n. 7; Ante, § 113, and note. 438 AGENCY. • [CH. XIT. trations of this doctrine. But a single one may suffice, which has been already mentioned, that a factor cannot pledge the goods of his principal, so as to create a lien on them, for advances made to himself.^ A fortiori, a person cannot acquire a hen to himself, founded Upon his own illegal or wrongful act, or upon his own misconduct or breach of duty or fraud. ^ § 361. In the next place, to found a valid lien, there must be an actual or constructive possession of the thing by the party asserting it, with the express or implied assent of the party against whom it is asserted.^ This follows, as a natural conse- quence, from what has been already said ; for a lien is a right to retain a thing, which presupposes a lawful possession, which can arise only from a just possession under the owner or other party against whom the claim exists.* The possession, indeed, need not be the actual possession of the party himself ; for it is sufficient, if the possession be by his servants or agents in the proper discharge of their duty.^ Neither need the possession always be direct and actual. It is sufficient, if it be constructive, and operative in point of law. Thus, where property is at sea, the delivery and indorsement of the bill of lading will confer a constructive possession, sufficient to create a lien.^ So, the ' Ante, § 113 ; Paley on Agency, by Lloyd, 213-232 ; Doubigny ». Duval, 6 T. K. 604 ; Story on Bailm. §§ 325, 326 ; 3 Chitty on Com. & Manuf. 204, 205, 547 ; Jackson u. Clarke, 1 Y. & Jerv. 216 ; McCombie v. Davies, 7 East, ' 5 ; Smith on Merc. Law, 842 (2d ed.) ; Id. B. 1, ch. 6, § 4, pp. 511, 512 (3d ed. 1843) ; Jarvis v. Rogers, 16 Mass. 389, 394-396. 2 3 Chitty on Com. & Manuf. 647, 548 ; Burn ». Brown, 2 Starkie, 272 ; Smith on Merc. Law, 342 (2d ed.) ; Id. B. 1, ch. 5, § 4, pp. 511, 512 (ed! 1843) ; Lucas v. Dorriei^ 7 Taunt. 278 ; Taylor «. Robinson, 2 Moore, 730; Paley on Agency, by Lloyd, 139, 140 ; Lempriere «. Pasley, 2 T. E. ^7. See Pearce u. Roberts, 27 Mo. 179. = 3 Chitty on Com. & Manuf. 547, 549, 550; Paley on Agency, by Lloyd, 137-139 ; 2 Liverm. on Agency, 70-72 (ed. 1818) ; Montagu on Lien, Pt. 1, ch. 1, pp. 4, 5 ; 2 Bell, Comm. § 774 (4th ed.) ; Id. pp. 91-97 (5th ed.) ; Eice u. Austin, 17 Mass. 197. * Heywood u. Waring, 4 Campb. 291; Hallet v. Barsfield, 18 Ves. 188; Winter u. Coit, 3 Seld. 288 ; Legg v. Evans, 6 Mees. & Wels. 41, 42. * 3 Chitty on C6m. & Manuf. 647, 549 ; 2 Kent, Comm. Lect. 41, p. 639 (4th ed.) ; McCombie v. Davies, 7 East, 6 ; 2 Bell, Comm. § 774 (4th ed.) ; Id. pp. 91-97 (5th ed.) ; Gainsford b. Detillet, 13 Martin, 284 ; Clemson e. Davidson, 6 Binn. 392. « Rice «. Austin, 17 Mass. 197 ; 2 Bell, Comm. pp. 91-97, (5th ed.). And see Davis v. Bradley, 28 Vt. 118. §§ 360-362.] EIGHT OP LIEN OP AGENTS. 439 delivery of choses in action, or other documeints or muniments of title, will in many cases, give a good lien upon the property represented, or intended to be conveyed thereby. ^ Thus, the delivery of a bill of sale of a ship at sea will be a constructive possession, sufficient to sustain a lien, if the ship is taken pos- session of within a reasonable time after her return.^ So, the delivery of a policy of insurance will give a lien thereon ; as will the delivery of a promissory note, to collect and receive the amount.^ Still, however, the rule is strictly adhered to that there must be a possession, actual or constructive.* If, therefore, the thing has not yet arrived to the possession of the party, but is still in transitu, or if he has only a right of possession, the lien does not attach thereon.^ § 362. In the next place, no right of lien can arise, where, from the nature of the contract between the parties, it would be inconsistent with the express terms or the clear intent of the con- tract.^ Thus, for example, if the goods are deposited in the possession of the party for a particular purpose, inconsistent with • the notion of a lien, as for example, to hold them, or their pro- . ceeds, subject to the order of a third person, or to have them transported to another place, or to have them delivered to another person, no lien will attach thereon.'^ So, if the money, for ' 3 Chitty on Com. & Manuf. 550 ; Brown v. Heathoote, 1 Atk. 160 ; Lem- priere v. Pasley, 2 T. R 485, 491 ; Lucas v. Dorrien, 7 Taunt. 279 ; Haile v. Smith, 1 Bos. & Pull. 563. " Mair v. Glennie, 4 M. & Selw. 240; Robinson v. McDonnell, 2 B. & Aid. 134; Abbott on Shipp. Pt. 1, cb. 1, §§ 4-10 (Amer. ed. 1829). " Paley on Agency, by Lloyd, 130; Montagu on Lien, Pt. 1, ch. 1, p. 19 ; 2Liverm. on Agency, 79 (ed. 1818). * 2 BeU, Comm. § 774 (4th ed.) ; Id. pp. 91-97 (6th ed.). " 3 Chitty on Com. & Manuf. 549 ; Paley on Agency, by Lloyd, 137-139 ; 2 Liverm. on Agency 70-72 (ed. 1818) ; Kinlock v. Kraig, 3 T. R. 119 ; Id. 783 ; 2 Kent, Comm. Lect. 41, p. 638 (4th ed.) ; Sweet ». Pym, 1 East, 4 ; Holland's Assignees v. Humble's Assignees, 1 Starkie, 143 ; Hervey u. Lid- dard, 1 Starkie, 123 ; Montagu on Lien, Pt. 1, ch. 1, pp. 6, 6 ; 2 Bell, Comm. § 774 (4th ed.) ; Id. pp. 91-97 (6th ed.). See Anderson v. Clarke, 2 Bing. 20; Bryan v. Nix, 4Mees. & Wels. 776, 792; Id. 791. ' Chase v. Westmore, 6 M. & Selw. 180 ; Jarvis v. R6gera, 15 Mass. 389, 395-397; Smith on Merc. Law, B. 4, ch. 2, § 2, pp. 611-613 (3d ed. 1843). See Pinnock v. Harris, 3 Mees. & Wels. 532 ; Jackson v. Cummins, 5 Mees. & Wels. 350, 351. ' Paley on Agency, by Lloyd, 140-142 ; 3 Chitty on Com. & Manuf. 649, 440 AGENCY. " [CH. XIT, which the lien is asserted, is not due, but is payable at some future time, and in the intermediate time the goods are to be redelivered to the owner, no lien will attach thereon ; for, in such a case, the lien will be inconsistent with such intermediate redelivery.^ So, no lien will arise, where there is an express agreement between the parties not to insist upon it ; or, where it is clear, from the whole transaction, that the party trusted ex- clusively to the personal credit of his debtor,^ or to another dis- tinct fund.** § 362 a. It sometimes becomes a matter of very nice considera- tion, whether a particular agreement amounts to an original waiver of, or dispensation from, the right of lien, which other- wise might by law attach itself to the particular transaction. Thtis, it was formerly thought that, where work was done, or services performed, under an express contract, for a specific stip- 660 ; Walker v. Birch, 6 T. R. 258 ; Jarvis v. Rogers, 16 Mass. 889, 395, 896 • Weymouth v. Boyer, 1 Ves. jr. 416 ; Smith on Merc. Law, 837, 888 (2d ed.) ; Id. pp. 611-613 (3d ed. 1848) ; 2 Liverm. on Agency, 61-54 (ed. 1818). ' 3 Chitty on Com. & Manuf. 648 ; Crawshay «. Homfray, 4 B. & Aid. 50 ; ' Scarfe v. Morgan, 4 Mees. & Wels. 270, 284; Judson v. Etheridge, 1 Cromp. & Mees. 743 ; Chase v. Westmore, 6 M. & Selw. 180 ; Williams ». Littlefield, 12 Wend. 862, 370. » See Pinnock v. Harrison, 3 Mees. & Wels. 682; Ante, § 342; Post, §§ 366, 885. ' 2 Liverm. on Agency, 63-66 (edit. 1818) ; 2 Kent, Comm. Lect. 41, pp. 638, 639 (4th ed.) ; Cowell v. Simpson, 16 Ves. 275 ; Bailey v. Adams, 14 Wend. 201 ; Paley on Agency, by Lloyd, 147,148 ; Gilman v. Brown, 1 Mason, 191 ; Jackson v. Cummins, 6 Mees. & Wels. 850, 361 ; Sanderson v. Bell, 2 Cromp. & Mees. 304. In Mr. Metcalf 's edition of Yelverton's Rep. 67 a, note (1), there is a full statement of the doctrines on this subject. See also 5 Edw. 4, 2, pi. 20 ; 17 Edw. 4, 1 ; Davis v. Bowsher, 5 T. R. 491 ; Jarvis ». Rogers, 15 Mass. 889, 394-896. We are carefully to distinguish between cases of this sort, where the lien to be asserted is created by mere operation of law, and is excluded by the agreement of the parties, and another class of oases, where the right of set-oflf is asserted in a suit ; for, in the latter cases, the right of set-off (as, for example, in a case of bankruptcy) would not be taken away by any agreement not to insist upon a lien, or set-ofF, for a balance of accounts, in re- gard to goods received by the party for sale, and actually sold under such an agreement, for which the party is sued. The ground of this distinction seetns to be, that the general right of set-ofF, in a suit at law, being secured by statute, cannot be taken away by implication from any such agreement. MoGillivray V. Simpson, 2 Carr. & Payne, 820 ; s. c. 9 Dowl. & Ryl. 36. See Cornforth V. Rivett, 2 M. & Selw. 610 ; Eland v. Carr, 1 East, 376 ; Mayer v. Nias, 1 Bing. 311. §§ 362-364.J EIGHT OF LIEN OF AGENTS. 441 ulated sum, there all right of lien was by implication abandoned.^ But that doctrine has been since overturned ; and the reasonable doctrine established, that the mere existence of a special agree- ment will not exclude the right of lien ; but the terms of it must be such as actually or necessarily are inconsistent with such right.^ § 363. This doctrine is entirely coincident with that of the Roman law, which, in cases of sales, gave a lien for the purchase- money on the thing sold, unless personal credit was given to the buyer. " Quod vendidi, non aliter fit accipientis, quam si aut pretium nobis solutum sit, aut satis eo nomine factum, vel etiam fidem habuerimus emptori sine uUS. satisfactione.^ § 364. Secondly. Let us now proceed to the second head of inquiry ; what are the debts or claims to which liens properly attach ? In general, it may be stated, that they attach only to certain and liquidated demands ; and not to those which sound only in damages, and can be ascertained only through the inter- vention of a jury.* A special contract, may, indeed, exist by which a lien will be created in cases of this latter sort ; as, for example, where there is an express contract to hold goods for an indemnity against future contingent claims, or damages.^ But the law will not imply a lien for such unliquidated and contingent demands ; but the lien, if asserted, must be made out by clear proofs. It may be added, that, generally, the same rules 'are adopted, in respect to the nature of the claims and demands, for which a lien may be asserted, as regulate the rights of the parties, and allowances, in matters of account ; that is to say, they must be legal or equitable claims or demands founded iipon a just and moral consideration, and due to the party as a matter of right, and not as matter of mere favor.^ ' Brennan v. Currint, Sayer, 2-'4; Bull. Nisi Prius, 45; Smith on Merc. Law, B. 4, ch. 2, § 2, pp. 513, 614 (3d ed. 1843). ' Chase V. Westmore, 5 M. & Selw. 180; Hutton v. Brag, 7 Taunt. 26; Smith on Merc. Law, B. 4, oh. 2, § 2, pp. 612-514 (3d ed. 1843) ; Peyroux v. Howard, 7 Peters, 324. ' Dig. Lib. 18, fit. 1, 1. 19 ; Owenson v. Morse, 7 T. R. 64. * 3 Chitty on Com. & Manuf. 548, 649. ' ' 3 Chitty on Com. & Manuf. 648, 549 ; Drinkwater v. Goodwin, Cowp. 251. * Paley on Agency, by Lloyd, 132-134, 137; Curtis v. Barclay, 6 B. & Cressw. 141. 442 AGENCY. [CH. XIT. § 365. In the next place, the debt or demand, for which the lien is asserted, must be due to the party, claiming it in his own right and not merely as the agent of a third person.^ It must also, be a debt or demand due from the very person for whose benefit the party is acting, and not from a third person, although the goods may be claimed through him.^ So, the debt or de- mand, if claimed for a general balance of accounts, must be a balance, arising from transactions of a similar nature with that upon which the particular lien arises. As, for example, if the particular lien is for factorage, the general' lien must also be for factorage transactions, and cannot be applied to transactions of a totally dissimilar nature, such as for rent, or for other debts due to the factor, before that relation existed between him and his principal."'' Of course, these remarks apply only to cases, where there is no special agreement between the parties, varying the rule ; for such an agreement will always constitute the true expositor of the rights of the parties. § 366. Thirdly. How a lien may be waived or lost. In the first place, it may be waived by any act or agreement between the parties, by which it is surrendered, or it becomes inapplicable.* As, for example, if, while the property is in the hands of the party, with a lien attached to it, he agrees to hold the property exclu- sively for, or as the property of, a third person, that will amount to an implied waiver of his lien. So, the same result will take place, if he expressly agrees that it shall no longer be subject to the lien ; or if he agrees to take another security in lieu of the lien.^ ' Paley on Agency, by Lloyd, 132 ; Houghton v. Mathews, 3 Bos. & Pull. 485 ; 3 Chitty on Cora. & Manuf. 562, 553 ; Montagu on Lien, Pt. 1, ch. 1, pp. 8, 10 ; Sx parte Shank, 1 Atk. 234. ■' Paley on Agency, by Lloyd, 132, 147, 148 ; Weymouth «. Boyer, 1 Ves. jr. 416 ; Jackson v. Clark, 1 Y. & Jerv. 216 ; Foster v. Hoyt, 2 Johns. Cas. 327 ; Maanss v. Henderson, 1 East, 335. 3 Houghton V. Mathews, 3 Bos. & Pull. 485 ; Smith on Merc. Law, 340 (2d ed.) ; Id. pp. 512, 513 (3d ed. 1843), 2 Liverm. on Agency, 65-68; 2 Kent, Coram. Lect. 41, p. 638 (4th ed.) ; Montagu on Lien, Pt. 2, ch. 1, § 2, pp. 33, 34 ; Paley on Agency, by Lloyd, 134-136 ; Walker v. Birch, 6 T. K. 268, per Lawrence, J. ; Jarvis v. Rogers, 15 Mass. 389, 396. ' Piesch V. Dickson, 1 Mason, Cir. 9. * Montagu on Lien, Pt. 3, ch. 1, pp. 40-48 ; 2 Bell, Coram. § 776 (4th ed.) ; Id. pp. 96, 97 (5th ed.) ; 3 Chitty on Com. & Manuf. 656, 557; Ante, § 362. §§ 365-367.] EIGHT OP LIEN OP AGENTS. 443 § 367. In the next place, the voluntary parting with the pos- session of the goods will amount to a waiver or surrender of a lien ; for, as it is a right founded upon possession, it must ordi- narily cease when the possession ceases.^ In such cases, it mat- ters not, whether the party absolutely parts with- the possession, rightfully or wrongfully ; or whether it is with the assent of the owner ; or whether it is by his own tortious conversion of the property, or by some other unauthorized act. Thus, if an agent should make a shipment of goods, consigned to the order of his principal (it would b"e different, if it were to his own order) ,^ it would destroy the lien of the agent on those goods equally, whether the shipment were by the orders of the principal or in violation of his orders ; for, in such a case, the transfer of the property would be complete and absolute.^ But it might be dif- ferent in a case, where the transfer was merely qualified, and not absolute ; for, if such transfer were rightful, then the lien would not be lost. But, if it were wrongful, then it would be lost. Thus, for example, an agent who has a lien on property, may law- fully transfer and pledge the same to another person as a security, to the extent of the amount due to himself, and for which he has the lien, if he apprises such person, at the time of the lien, that he is to hold the property solely for the lien and no more ; for that being a rightful exercise of his authority, it amounts to a mere appointment of the party to keep possession as his servant, and the lien is not thereby extinguished ; for the possession still continues properly to be the possession of the agent.* On the ' Paley on Agency, by Lloyd, 142, 144; 2 Kent, Comm. Lect. 41, p. 639 (4th ed.) ; Kruger v. Wilcox, cited 1 Burr. 494 ; 3 Chitty on Com. & Manuf. 649, 550, 554, 555 ; Sweet v. Pym, 1 East, 4 ; Daubigny v. Duval, 5 T. R. 604 ; Owenson ». Morse, 7 T. R. 64 ; Kruger v. Wilcox, Ambler, 254 ; 2 Liverm. on Agency, 76-77 (ed. 1818) ; 2 Bell, Comm. § 774 (4tli ed.) ; Id. pp. 91-97 (5tli ed.) ; Id. pp. 116, 117. ^ Ante, § 361 ; Paley on Agency, by Lloyd, 144, 145 ; 2 Liverm. on Agency, 75, 76 (ed. 1818) ; 8 Chitty on Com. & Manuf. 565. ' Paley on Agency, by Lloyd, 142-144; 3 Chitty on Com. & Manuf. 549, 560, 664, 556 ; Sweet v. Pym, 1 East, 4 ; Abbott on Shipp. Pt. 3, ch. 9, § 7, p. 373 (ed. 1829). * Paley on Agency, by Lloyd, 144, 145, 217 ; 3 Chitty on Com. & Manuf. 651, 556; Montagu on Lien, B. 1, Pt. 4, ch. 4, p. 74; McCombie v. Davies, 7 East, 7 ; Mann v. Shifner, 2 East, 529 ; Gainsford v. Duillet, 13 Martin, 284 ; 2 Kent, Comm. Lect. 41, p. 639 (4th ed.) ; 2 Liverm. on Agency 78 (ed. 1818) ; Thompson v. Farmer, 1 Mood. & Malk. 48 ; Urqubart v. Mclver, 4 444 AGENCY. [CH. XIT. other hand, if an agent should tortiously pledge the property of his principal generally for advances made to himself, by that very act his own lien upon the property would be gone, notwithstand- ing the possession of the pledgee might, in some sense, be treated as his own possession ; for the change of possession would be tortious, and be deemed a waiver, or extinguishment of his lien.^ So, if a person having a lien on goods, should cause them to be taken in execution at his own suit, he would lose his lien thereby, although he should become the purchaser of them at the execu- tion sale, and they never were removed from his premises; for the sheriff took possession under the execution with his con- sent, and his possession, as purchaser, is a new and subsequent possession.''' § 368. Such is the general rule as to possession. But there are certain cases, which constitute exceptions to the application of the rule, and in which, in favor of trade and the apparent in- tention of the parties, the lien is preserved, although the posses- sion of the property is parted with. Thus, for example, a factor who, by lawful authority, sells the goods of his principal, and parts with the possession under the sale, is not deemed to lose his lien thereby ; but it attaches to the proceeds of the sale in the hands of the vendee, and also to the securities therefor in the hands of the factor, in lieu of the original property.^ This ex- ception is grounded upon the manifest inconvenience which would otherwise attend all factorage transactions ; for a factor would rarely sell, except for ready money, if thereby he should lose his lien ; and yet a sale on credit would be, or might be, incomparably more beneficial for his principal. Hence, the law presumes, that the parties tacitly agree, that the securities and proceeds shall stand charged with the original lien; and this Johns. 103; Jarvis v. Rogers, 15 Mass. 389, 408; Clemson «. Davidson, 5 Binn. 392. ' McCombie «. Davies, 7 East, 7 ; Ante, §§ 78, 113, and notes ib. ; Shipley V. Kymer, 1 M. & Selw. 484 ; SoUy v. Rathbone, 2 M. & Selw. 298 ; Martini J). Coles, 1 M. & Selw. 140 ; Boyston v. Coles, 6 M. & Selw. 14 ; Cockran t). Mara, 2 M. & Selw. 301. ' Jacobs V. Latour, 5 Biug. 130. See Campbell v. Proctor, 6 Greenl. 12. ^ Paley on Agency, by Lloyd, 147 ; Drinkwater v. Goodwin, Cowp. 251 ; Houghton V. Mathews, 3 Bos. & Pull. 489 ; 3 Chitty on Com. & Manuf. 550, 551, 555, 556 ; Montagu on Lien, Pt. 1, ch. 1, p. 10 ; 2 Bell, Comm. § 774 (3), (4th ed.) ; Id. pp. 115-117 (5th ed.). §§ 367-370.] RIGHT OF LIEN OF AGENTS. 445 tacit understanding is now universally in coincidence with the usage of trade.^ Indeed, a factor is deemed, for many purposes, as the owner of the property, especially when he has demands upon it for advances and debts. ^ Cases of a similar nature may occur, where there is an express agreement between the parties, that the lien shall not be lost by a transfer of the possession ; for, in all such cases, the rule of law is, " Conventio vincet legem." ^ § 369. Another exception is, where the possession has not been voluntarily parted with, but has been taken from the party by fraud, or force, or mistake ; for, in such a case, it would be against the first principles of justice to allow the lien to be divest- ed.* Another exception (as we have just seen) is, where the party parts with the possession, suh modo only, as upon a pledge of his own lien as security to a third person.^ And ancrther ex- ception, of course, is of maritime liens, and other special liens, already alluded to.^ § 370. It may be added, under this head, tliat although a lien is lost by parting with the possession, yet it may revive and re- attach upon the property coming again into the possession of the party entitled to the lien, if it so comes as the property of the same owner against whom his right exists, and no new interme- diate equities have affected it.'' This, at least, is true, in regard to a general lien ; for, in such a case, it will attach upon fresh goods which have for the first time come to hand ; and there is no reason why it should not equally attach to the old property coming back again. How far the same principle will apply to a specific or particular lien does not seem to be settled ; although the intimations in judicial opinions are against it.^ ' Ibid. ' Drinkwater v. Goodwin, Cowp. 261 ; Houghton v. Mathews, 3 Bos. & Pull. 485. ' Paley on Agency, by Lloyd, 147 ; 3 Chitty on Com. & Manuf. 550, 566 ; Dodsley v. Varley, 12 Adolph. & Ellis, 632. * 3 Chitty on Com. & Manuf. 656 ; Montagu on Lien, Pt. 1, ch. 1, p. 11 ; Pierson v. Dunlop, Cowp. 671 ; Wallace v. Woodgate, Ryan & Mood. 193 ; s. c. 1 Carr. & Payne, 676. » Ante, § 367. « Ante, § 362. ' Paley on Agency, by Lloyd, 145, 146 ; 3 Chitty on Com. & Manuf. 557, 658 ; Whitehead v. Vaughan, Cook's Banking Laws, 579 ; Spring v. South Carolina Ins. Co. 8 Wheat. 268, 286, 286; 2 Bell, Comm. p. 117 (5th ed.). ' Hartley v. Hitchook, 1 Starkie, 408 ; Jones v. Pearl, 1 Starkie, 566 ; Bo- 446 AGENCY. [CH. XIV. § 371. Fourthly. In what manner a lien may be enforced and taken advantage of. In resjject to the rights conferred upon a party by a lien, it may be stated that they are generally of a very limited nature. As a lien is, ordinarily, nothing more than a right of retainer of the property, the party entitled to the lien cannot ordinarily sell or dispose of the property, in order to sat- isfy his lien, unless with the consent of the owner, either express or implied, from the nature and objects of the very transaction. Thus, for example, if goods are consigned to a factor for sale, and he makes advances upon them, he is, of course, invested with a right td sell them, and may out of the proceeds satisfy his lien, or use it by way of set-off.^ Nay, in certain cases, where he has made advances as a factor, it would seem to be clear, that he may sell to repay himself for those advances, without the assent of the owner (invito domino'), if the latter, after due notice of the intention to sell for the advances, does not repay him the amount.^ But, except in a few and limited cases of this sort, the right of the holder of the lien seems to be confined to the mere right of retainer, which may be used as a defence to any action for the recovery of the property brought against him, or, as a matter of title or special property, to reclaim the property by action, if he sanquet v. Dudman, 1 Starkie, 1; Montagu on Lien, Pt. 1, ch. 1, pp. 19, 20; 2 Bell, Oomm. § 774 (4), (4tli ed.) ; Id. pp. 116, 117 (5tli ed.). ' 3 Chitty on Com. & Manuf. 661 ; Pothonier v. Dawson, Holt's N. P. 383 ; Zoit V. Millaudon, 16 Martin, 471 ; Montagu on Lien, Pt. 1, ch. 3, pp. 23, 24; •2 Liverm. on Agency, 103, 104 (ed. 1818) ; 2 Kent, Comm. Lect. 41, p^ 642 (4th ed.) ; 2 Bell, Comm. p. 117 (6th ed.). ' ° This point was expressly decided in the Supreme Court of Massachusetts, in the case of Parker v. Braucker, 22 Pick. 40. [In England it has been de- cided, that the factor has no right to sell the goods, contrary to the orders of his principal, though the latter has neglected a request to repay the advances. Smart v. Sandars, 6 Mann., Gr. & Scott, 896.] See also 3 Chitty on Com. & Manuf. 551. In Pothonier v. Dawson, Holt's N. P. 383, Lord Chief Justice Gibbs said, "Undoubtedly, as a general proposition, a right of lien gives no right to sell the goods. But when goods are deposited, by way of security, to indemnify a party against a loan of money, it is more than a pledge. The lend- er's rights are more extensive than such as accrue under an ordinary lien in the way of trade. These goods were deposited to secure a loan. It may be inferred, thereforS, that the contract was this : ' If I (the borrower) repay the money, you must redeliver the goods ; but if I fail to repay it, you may use the security I have left to repay yourself.' I think, therefore, the defendant had a right to sell." See Zoit v. Millaudon, 16 Martin, 470 ; 3 Kent, Comm. Lect. 41, 642 (4th ed.) ; Rice v. Austin, 17 Mass. 197'. §§ 371-373.] BIGHT OP LIEN OP AGENTS. 447 has been unlawfully dispossessed of it.^ In many cases, how- ever, where the lien itself does not confer a right of sale, a court of equity will decree it, as a part of its own system of remedial justice ; ^ and courts of admiralty are constantly in the habit of decreeing a sale, to satisfy maritime liens, such as bottomry bonds, seamen's wages, repairs of foreign ships, salvage, and other claims of a kindred nature.^ § 372. But it seems, that even a lien or right of retainer is not, or may not be deemed, under all circumstances, an unqualified right, at least, as against the owner ; for it has been said, that, although an agent has a lien upon the property of his principal for any advances or balance due him, yet he has not a right to retain more of the property, when demanded by the principal, than is sufficient to secure and satisfy his lien ; and, as to the residue, he is bound to obey the orders of the principal.* This is a point, however, which is manifestly open to question, since the lieu extends over thei whole property, as a tacit pledge ; and the agent does not seem any more bound to part with any of it, until his claim is satisfied, than a pledgee would be bound in the case of an express pledge.^ But, be this as it may, it is certain that the owner has a perfect right to dispose of the property, subject to the lien, as he may please ; and the party to whom he conveys it, will have a perfect title to it, upon discharging the lien.^ It may be added, that a lien is a personal privilege of the party himself, who is entitled to it, and cannot be set up by any third person against the principal, either as a defence or as a cause of action.' § 373. Having disposed of these general considerations in re- gard to liens, all of which do or may apply to liens created by ' 3 Chitty on Com. & Manuf. 651 ; The SHip Packet, 3 Mason, 334 ; Greene II. Farmer, 4 Burr. 2218 ; 2 Liverm. on Agency, 103, 104 (ed. 1818) ; Paley on Agency, by Lloyd, 131 ; Scott v. Franklin, 15 East, 428. ' 2 Kent, Comm. Lect. 41, p. 642 (4th ed.) ; 2 Liverm. on Agency, 103, 104 (ed. 1818) ; 1 Story on Eq. Jurisp. § 506 ; 2 Story on Eq. Jurisp. §§ 1216, 1217. ' Abbott on Shipp. Ft. 3, eh. 10, § 2, and note to American edition, 1829 ; Id. Ft. 2, ch. 2, §§ 10-17, and notes ; Id. §§ 17, 27-29 ; Id. Ft. 4, ch. 4, § 1. * Jolly V. Blanchard, 1 Wash. Cir. 262, 266. ' See Davis v. Bowcher, 5 T. R. 488. * The Ship Facket,'3 Mason, 334; Walter v. Ross, 2 Wash. Cir. 283. ' Holly V. Huggeford, 8 Fick. 73. 448 AGENCY. [CH. XtV. agency, let us now proceed to the more immediate object of these commentaries, and inqiiire what liens belong to agents in general, and what belong to particular classes of agents. The former may be disposed of in a very few words ; for, in cases of agency, there generally exists a particular right of lien in the agent for all his commissions, expenditures, advances, and services in and abotit the property or thing intrusted to his agency, whenever they were proper or necessary or incident thereto. This is strictly true in all cases of mere private agency, unless there is some private agreement, express or implied, or some usage of trade or business, which repels or excludes the lien.^ Thus, for example, attorneys, bankers, brokers, factors, carriers, packers, dyers, shipwrights, wharfingers, commission merchants, auc- tioneers, supercargoes, and masters of ships have all a lien on the papers, documents, goods, merchandise, and other property committed to their care in the course of their agency, for the sums due to them for their commissions, disbursements, advances, and services in and about the same.^ § 374. Factors and agents for the purchase of goods have also a lien on the goods, when purchased, for the moneys paid and liabilities incurred -by them in respect to such purchase; and, unless the usage of trade or the particular agreement or course of dealing between the parties, varies this right, they are not bound to part with the possession of the goods, or to deliver them, or to ship them, subject to the absolute control of the principal, until they are reimbursed or secured for such advances and liabilities.^ § 375. Particular liens, then, belonging to all classes of agents, ' let us, in the next place, inquire, to what classes of agents gen- ' Paley on Agency, by Lloyd, 127, 128, 131 ; 3 Chitty on Com. & Manuf. 537-540 ; Smith on Merc. Law, 337 (2d ed.) ; Id. B. 4, ch. 2, § 2, p. 515 (3d ed. 1843) ; 2 Liverm. on Agency, 34, 35 (ed. 1818) ; Id. 98-103 ; Montagu on Lien, Ft. 2, ch. 1, pp. 26-86 ; ch. 2, pp. 36-38 ; 2 Bell, Comm. §§ 777, 779, 781, 782 (4th ed.) ; Id. pp. 114^118 (5th ed.). " Montagu on Lien, Pt. 2, ch. 1, pp. 26-30; 3 Chitty on Com. & Manuf. 638-542, 589 ; Paley on Agency, by Lloyd, 127-137 ; Id. 90, 91, note ; 2 Kent, Comm. Lect. 41, p. 640 (4th ed.) ; Abbott on Shipp. Pt. 3, ch. 1, § 7 ; Id. ch. 3, § 11 ; Hunt v. Haskell, 24 Maine, 339. ' Stevens v. Robins, 12 Mass. 180. See Williams v. Littlefield, 12 Wend. 362, 370 ; 2 Bell, Comm. §§ 775, 799 (4th ed.) ; Id. pp. 106-111 (5th ed.) ; Holbrook v. Wright, 24 Wend. 169 ; Knapp v. Alvord, 10 Paige, 205. §§ 373-376.] EIGHT OP LIEN OP AGENTS. 449 eral liens appropriately appertain. From ■vrhat has been already said, it is clear, that all general liens hare their origin in the positive or implied agreement of the parties.^ Some of them, however, have now, by the general usage of trade, become so fixed and invariable, that no proof whatsoever is required to establish their existence ; but courts of justice take notice of them, as a matter of course. Others, again, are so variable and uncertain, or are so much affected by local usages, that in all cases of controversy they are required to be established by com- petent* proofs, before they are admitted.^ In practice, -however, except for this purpose, the distinction between general liens by the usage of trade, and those arising from positive or special agreement, is little attended to ; and therefore it need not be insisted on in this place.^ Let us, then, proceed to examine some of the more common cases in which these general liens exist. § 376. And, first, in relation to factors. It is now incontrovert- ibly established, as a matter of law derived from long usage, and admitted without proofs, that factors have a general lien upon every portion of the goods of their principal in tlaeir possession, and upon the price of such as are lawfully sold by them, and the securities given therefor, for the general balance of the accounts between them and their principal, as well as for the charges and disbursements arising upon those particular goods.* The lien may also extend to all sums for which a factor has become liable, as a surety or otherwise, for his principal, wherever the surety- ship has resulted from the nature of the agency, or it has been undertaken upon the footing of such a lien,^ But it does not ' Ante, 354, 366. ' 3 Chitty on Com. & Manuf. 544-546 ; 2 Bell, Comm. §§ 789-806 (4th ed.) ; Id. pp. 106-124 (6th ed.). ' Ante, §§ 364-366. ' Paley on Agency, by Lloyd, 128, 129, note ; 2 Kent, Comm. Lect. 41, p. 640 (4th ed.) ; 2 Liverm. on Agency, p. 38 (ed. 1818) ; 3 Chitty on Com. & Manuf. 644-646 ; Smith on Merc. Law, 338, 339 (2d ed.) ; Id. B. 4, ch. 2, § 2, p. 615 (3d ed. 1843) ; Kniger v. Wilcox, Ambler, 252 ; Hudson v. Gran- ger, 6 B. & Aid. 22, 31, 32 ; Godin ». London Assur. Co. 1 W. Bl. 104 ; s. c. 1 Burr. 489 ; Jarvis v. Rogers, 16 Mass. 389, 396 ; Peisch v. Dixon, 1 Mason, 10; BurriU v. Phillips, 1 Gall. 360; 2 Bell, Comm. §§ 799, 800 (4th ed.) ; Id. pp. 114-118 (5th ed.). " Liverm. on Agency, 38-40 ( ed. 1818) ; Drinkwater v. Goodwin, Cowp. AGSNCT. 29 450 AGENCY. [CH. XIT. extend to other independent debts contracted before, and without reference to, the agency .^ § 377. The general lien of a factor will attach, not only to goods which have actually come into the factor's possession in the lifetime of the principal, but also to goods which, at the death of the principal, are in transitu to tlie factor, and after- wards come to his hands, where he has advanced money, or accepted bills on account of them, to the extent of such ad- vances or acceptances, and the incidental charges of the con- signment."^ If goods come to the possession of the factor after a secret act of bankruptcy, committed by the principal, the factor will not be entitled to retain the goods against the as- signees, for advances or acceptances, made after such act of bankruptcy, upon the faith of the consignment of the goods to him, although such act was unknown to him at the time of the advances or acceptances ; for the act of bankruptcy devests the property oiit of the bankrupt.^ Whether the like effect would be produced where the act of bankruptcy was committed after the advances or acceptances were made, and while the goods were in transitu to the factor, is a point upon which doubts have been entertained ; but the weight of judicial opinions seems against the lien.* § 378. This general lien, given to factors, has been established. upon its manifest tendency to aid the interests of trade and com- merce, and to promote confidence and a liberal spirit on the part of 251 ; Foxcroft v. Devonshire, 2 Burr. 931 ; Hammond v. Barclay, 2 East, 227; Paley on Agency, by Lloyd, 129, 130. ' Paley on Agency, by Lloyd, 134-136; Drinkwater v. Goodwin, Cowp. 251 ; 2 Liverm. on Agency, 65, 66 (ed. 1818) ; Houghton v. Mathews, 8 Bos. & Pull. 485 ; Stevens v. Robins, 12 Mass. 182 ; Smith on Merc. Law, 339, 340 ; Olive v. Smith, 5 Taunt. 56 ; Ante, § 365. ^ Paley on Agency, by Lloyd, 140; Plammond v. Barclay, 2 East, 227; 2 Liverm. on Agency, 44, 46 (ed. 1818) ; 2 Bell, Comm. §§ 800, 801 (4th ed.) ; Id. pp. 114-118 (5th ed.). ^ Copland v. Stein, 8 T. R. 199. * Nichols V. Clent, 3 Price, 547. But see Foxcroft v. Devonshire, 2 Burr. 931; Kinlock v. Craig, 3 T. R. 119, 783; Lempriere v. Pasley, 2 T. R. 485; Hammond v. Barclay, 2 East, 227 ; 2 Liverm. on Agency, 42-48 ; Id. 69-74 ; Id. 78 (ed. 1818) ; Paley on Agency, by Lloyd, 121-123; Montagu on Lien, B. 1, Pt. 4, ch. 4, p. 79 ; Rice v. Austin, 17 Mass. 197 ; 2 Bell, Comm. § 800 (4th ed.) ; Id. pp. 114-118 (5th ed.). §§ 376-379.] RIGHT OP LIEN OF AGENTS. 451 factors in respect to advances to their principals.^ It is deemed to exist in all cases, until the contrary presumption is clearly- established. But, if such a presumption is clearly esta;blished, and, a fortiori, if an express agreement repelling it is proved, then the lien of the factor fails, as every other lien does, when it contravenes the intention of the parties.^ It was formerly thought, that this lien of a factor was dissolved by the death of the principal, and that it could not be asserted against the specialty creditors of the deceased.^ But this doctrine has no just foundation in principle, and it has long since been deemed utterly unsupportable.* § 879. Secondly. In relation to insurance brokers. This class of agents, also, have now, by general usage, a lien upon the policies of insurance in their hands, procured by them for their principals, as also upon the moneys received by them upon such policies, not only for the aniount of their commissions and the premiums for the particular policies, but also for the balance of their general insurance account with their employers." But the lien does not extend to cover any balance due upon business foreign to that of effecting policies of insurance, as the usage does not extend to such a claim ; ^ although, in many cases, it may be made available by way of set-off, and, in cases of bank- ruptcy, by way of mutual debt and mutual credit.'' The lien, ' Paley on Agency, by Lloyd, 128, 129. * Ante, § 362; 2 Liverm. on Agency, 61-54 (ed. 1818) ; Walker v. Birch, • 6 T. R. 258 ; Mabar v. Massias, 2 W. Bl. 1072 ; Weymouth v. Boyer, 1 Ves. jr. 416. ' Chapman w. Darby, 2 Vern. 117 ; 2 Liverm. on Agency, 79 (ed. 1818). * Paley on »Agency, by Lloyd, 128, 129, note (m) ; Montagu on Lien, B. 1, Pt. 4, ch. 4, pp. 77-80. See Lempriere v. Pasley, 2 T. R. 485, 490, 491. * 2 Liverm. on Agency, 79, 80 (ed. 1818) ; 3 Chitty on Com. & Manuf. 646 ; Paley on Agency, by Lloyd, 130 ; Castling v. Aubert, 2 East, 326, 330, 331 ; Mann v. Shiffner, 2 East, 623 ; Hovil v. Pack, 7 East, 164 ; Cranston v. The Philad. Insur. Co. 6 Binn. 638 ; Smith on Merc. Law, 339, 340 (2d ed.) ; Id. B. 4, ch. 2, § 2, p. 516 (3d ed. 1843) ; Spring v. So. Car. Insurance Co. 8 Wheat. 268, 285 ; Moody v. Webster, 3 Pick. 464 ; 2 Bell, Comm. § 804 (4th ed.) ; Id. pp. 114-118 (5th ed.). ' 2 Liverm. on Agency, 80-87 (ed. 1818) ; Olive v. Smith, 6 Taunt. 56 ; Paley on Agency, by Lloyd, 134-136 ; Id. 147 ; 2 Bell, Comm. § 804 (4th ed.) ; Id. pp. 120-123 (5th ed.) ; Ante, § 365. ' Olive V. Smith, 6 Taunt. 56 ; 2 Liverm. on Agency, 80-87 (ed. 1818) ; Parker ». Carter, Cooke, Bank Law, 567 (6th ed.) ; 2 Bell, Comm. §§ 807, 812 (4th ed.) ; Id. pp. 120-123 (6th ed.) ; Ante, § 370. 452 AGENCY. [CH. XIV. also, for a general balance, extends to cases where the insurance broker procures a policy for, and in the name of, another, who acts as agent for a third person, where the agency is unknown to the broker ; for, in such a case, the broker has a right to treat with the agent as if he were the principal, and his rights are not controllable by such secret agency.^ But, where it is known to the broker, that the party acts for another,- there his lien is strictly confined to the commissions and premium and charges on that very policy.^ § 380. Thirdly. In relation to bankers. Bankers, in like man- ner, have a general lien upon all notes, bills, and other securities, deposited with them by their customers, for the balance due to them on general account.^ Indeed, they may properly be con- sidered as holders for value of notes and bills and other securities, indorsed in blank, and deposited with them, for all advances and for all acceptances, past and future, made by them, for a cus- tomer, which exceeds its cash balance.* And, under such circumstances they may sue upon such securities, and recover thereon, at least to the amount of the balance due to them.^ § 381. But here, as in other cases of lien, the right to retain for the general balance of accounts may be controlled by any special agreement, which shows that it was not intended by the parties ; as it may also be repelled by circumstances, showing that the securities did not come into the hands of the banker, or ' Liverm. on Agency, 87-98 (ed. 1818) ; Mann. u. Forrester, 4 Campb. 60; West-wood V. Bell, 4 Campb, 349 ; Foster v. Hoyt, 2 John. Cas. 327 ; Maanss V. Henderson, 1 East, 335. 2 Ibid. ; Snook v. Davidson, 2 Campb. 218; Mann v. Shiffner, 2 East, 523; 2 Bell, Comm. § 804 (4th ed.) ; Id. pp. 120-123 (5th ed.) ; Swift v. Tyson, 16 Peters, 1, 21, 22; Bank of the Metropolis v. The New-England Bank, 17 Peters, 174; s. c. 1 Howard, Sup. Ct. 234. ^ Paley on Agency, by Lloyd, 131 ; Davis v. Bowsher, 5 T. R. 488 ; Bolton V. Puller, IBos. & Pull. 546; Giles v. Perkins, 9 East, 14; BoUand v. By- grave, 1 Ryan & Mood. 271 ; Jourdaine v. Lefevre, 1 Esp. 66 ; Smith on Merc. Law, 338, 339 (2d ed.) ; Id. pp. 514, 516 (3d ed. 1843) ; 2 Bell, Comm. § 803 (4th ed.) ; Id. pp. 118-120 (5th ed.). * Bosanquet v. Dudman, 1 Stark. 1 ; Scott v. Franklin, 15 East, 428 ; Sx parte Bloxam, 8 Ves. 631 ; Heywood v. Watson, 4 Bing. 496 ; Bramah v. Rob- erts, 1 Bing. N. Cas. 469 ; Percival v. Frampton, 2 Cromp. Mees. & Rose. 180 ; Swift V. Tyson, 16 Pet. 1, 21, 22. ' Ibid. ; Paley on Agency, by Lloyd, 131; Bolland v. Bygrave, 1 Ryan & Mood. 271. • §§ 379-383.] RIGHT OF LIEN OP AGENTS. 453 were not held by him in the ordinary course of business.^ Thus, for example, if securities have been deposited with a banker, as a pledge for a specific sum, and not as a pledge generally, that will repel the inference, that they were intended to give a lien for the general account or balance between the parties.^ So, a banker will not have a lien for his general balance of account on muni- ments or securities casually left at his banking house, after he has refused to advance money on them as a security.^ § 382. Fourthly. In regard to common carriers. They have a lien, not only for the freight and charges of carrying the par- ticular goods, but sometimes also for the general balance of accounts due to them. This general lien seems to have origi- nated in special agreements and notices ; but it has now become common. Still, however, it is so little favored, as a matter of public policy, that, if disputed, it must be shown to exist in the particular case, either by a general usage, or by a special agree- ment, or by a particular mode of dealing between the parties.^ §.383. Fifthly. In regard to attorneys at law and solicitors in equity. They also have a general lien upon all the papers and documents of their' clients in their possession, not only for all the costs and charges due to them in the particular cause in which the papers and documents come to their possession, but also for the costs and charges due to them for other professional business and employment in other causes. This has long been the settled practice, and is now fully recognized as an existing general right.^ ' Ante, § 362. ' Paley on Agency, by Lloyd, 181 ; Vanderzee v. Willis, 3 Bro. Ch. 21 ; Smith on Merc. Law, 338, 339 (2d ed.) ; Id. B. 4, ch. 2, § 2, pp. 514, 516 (3d ed. 1843) ; 2 Bell, Coram. § 803 (4th ed.) ; Id. pp. 118-120 (5th ed.). ' Paley on Agency, by Lloyd, 131 ; Lucas v. Dorrien, 7 Taunt. 278 ; Mount- fort V. Scott, 1 Turn. & Kuss. 274 ; Smith on Merc. Law, 338, 339 (2d ed.) ; Id. B. 4, ch. 2, § 2, pp. 614, 616 (3d ed. 1843) ; 2 Bell, Coram. § 803 (4th ed.) ; Id. pp. 118-120 (6th ed.). * Rushforth v. Hadfield, 6 East, 619 ; s. c. 7 East, 224 ; Wright v. SneU, 5 B. & Aid. 360 ; Jarvis v. Rogers, 16 Mass. 389, 396, 396 ; 2 Bell, Coram. §§ 781,790; Id. pp. 99-102 (5th ed.). ' Ex parte Nesbitt, 2 Sch. & Lefr. 279 ; Ex parte Stirling, 16 Ves. 259 ; Ex parte Pemberton, 18 Ves. 382 ; Stevenson v. Blakelock, 1 M. & Selw. 535; Hollis ». Claridge, 4 Taunt. 807; Montagu on Lien,-B. 1, Pt. 4, ch. 3, pp. 69-67 ; Smith on Merc. Law, 338, 339 (2d ed.) ; Id. B. 1, ch. 2, § 2, pp. 614, 516 (3d ed. 1843) ; 2 Bell, Coram. § 796 (4th ed.) ; Id. pp. 111-114 (5th ed.). 454 AGENCY. [CH. XIV. But the lien upon papers and documents is only commensurate with the right of the client, who delivers the papers and docu- ments to the attorney, and is not valid against third persons claiming by a distinct title.^ Thus, for example, if a client who deposits deeds and title papers with an attorney, be only tenant for life, the lieu will be good against him, but not against the remainder-man.^ The lien of au attorney or solicitor also ex- tends, in England, to all moneys received and judgments re- covered and costs taxed for his client, subject only to any deductions which the other party may have a right to, by way of cross-costs or set-off.^ The practice in America is probably vari- able, being governed by local practice, or by statutory provisions. The lien also is strictly confined to papers and documents, wliich come into the possession of the attorney or solicitor in the course of professional employment.* But, upon this class of cases, it seems unnecessary to dwell, as agencies of this sort are not within the intended scope of tliese commentaries. § 384. Sixthly. There are other cases in which a general Jien has been admitted to exist in regard to particular classes of agents ; such, for example, as packers, acting as factors, calico- printers, fullers, dyers, and wharfingers.^ But, in all cases of this sort, the general lien arises, either from the usage of the particu- lar trade, or from a special agreement of the parties, or from the peculiar habit of dealing between them.^ Independently of the existence of one or other of these sources of right, the law con- fines the parties to the particular lien on the goods themselves, incurred or due on their sole account ; and the burden of proof is on those who set up a general lien, to establish it by clear and determinate evidence.'^ ' Hollis V. Claridge, 4 Taunt. 807. = Ex parte Nesbitt, 2 Sch. & Lefr. 279 ; Montagu ou Lien, B. 1, Pt. 4, ch. 3, p. 61. = Montagu on Lien, B. 1, Pt. 4, ch. 3, pp. 59-63. * Montagu on Lien, B. 1, Pt. 4, ch. 3, pp. 61, 62 ; Stevenson v. Blakelock, 1 M. & Selw. 635 ; 22 Pick. 210 ; 2 Met. 478 ; 4 Gray, 357. * Montagu on Lien, B. 1, Pt. 2, ch. 1, § 2, pp. 81-34; 3 Chitty on Com. & Manuf. 646 ; Paley on Agency, by Lloyd, 130, 131 ; Smith on Merc. Law, 338, 339 (2d ed.) ; Id. B. 4, ch. 2, § 2,'pp. 614, 515 (3d ed. 1843) ; 2 Bell, Comm. § 792 (4th ed.) ; Id. pp. 105-110 (5th ed.) ; Ante, § 34. « Ibid. ' Ibid. ; Holderness v. CoUinson, 7 B. & Cressw. 212 ; 2 Bell, Comm. § 792 (4th ed.) ; Id. pp. 105-110 (5th ed.). §§ 383-386.] RIGHT OP LIEN OP AGENTS. 455 § 385. We may close this part of the subject in relation to liens by agents, by remarking, that the mere fact that an agent has a lien upon the property confided to him, either for his com- missions, advances, disbursements, or expenses upon that prop- erty, or for his general balance of account, does not limit the right of the agent to that mere fund ; but the principal is still liable to him personally, in a suit in personam for the amount of the same claims.^ For, by the general rule of law, an agent, in such cases trusts both to the fund and to the person of his prin- cipal.^ [And a factor who makes advances on goods consigned to him, may maintain an action to recover the money advanced, even before the goods are sold, unless there is an agreement to the contrary.^] But this personal liability may be waived by an express agreement between the parties, or by a course of dealing between them which justifies the same conclusion.* The burden of proof of such a waiver, however, will lie upon the principal, and cannot be inferred from the mere relation of principal and factor.^ § 386. Lot us, in the next place, consider what are the rights of sub-agents, in regard to their immediate employers, and also in regard to the superior or real principal. It may be generally stated, that where agents employ sub-agents in the business of the agency, the latter are clothed with precisely the same rights, and incur precisely the same obligations, and are bound to the same duties, in regard to their immediate employers, as if they were the- sole and real principals. This is the general rule. ^ But it is, of course, liable to exceptions ; for where, by the usage of trade, or the agreement between the parties, sub-agents are ordi- narily or necessarily employed to accomplish the ends of the agency, there, if the agency is avowed, and credit is exclusively given to the principal, the intermediate agent may be exempted ' Ante, §§ 342, 362, 366. ' Burrill v. Phillips, 1 Gall. 360; Peisch v. Dickson, I'Mason, 10; Corlies V. Cummings, 6 Cowen, 181 ; Beokwith v. Sibley, 11 Pick. 482 ; Ante, §§ 342, 362, 366. ' Upham V. Lefavour, 11 Met. 174. ' Ibid. ' Burrill v. Phillips, 1 Gall. 460 ; Peisch v. Dickson, 1 Mason, 10 ; Corlies ». Cummings, 6 Cowen, 181 ; Beckwith v. Sibley, 11 Pick. 482 ; Ante, §§ 342, 362, 366. ' Ante, §§ 217, 289 ; Ersk. Inst. B. 3, tit. 3, § 49. 456 AGENCY. [CH. XIV. from all responsibility to the sub-agent.^ But, unless such exclusive credit is given, the intermediate agent will be liable to the sub-agent, although the superior or real principal may also be liable. 2 § 387. In regard to the superior or real principal, the general rule of law is, that, if an agent employs a sub-agent, to do the whole or any part of the business of his agency, without the knowledge or consent of the principal, express or implied, there, inasmuch as no privity exists in such a case between the princi- pal and the sub-agent, the latter will not be entitled to claim from the principal any compensation for commissions or ad- vances or disbursements in the course of his sub-agency. But his sole remedy therefor is against his immediate employer, and his sole responsibility is also to him.^ But where, by the usage of trade, or the express or implied agreement of the parties, a sub-agent is to be employed, there a privity is deemed to exist between the principal and the sub-agent, and the latter may, under such circumstances, well maintain his claim for such com- pensation, both against the principal and the immediate employer, imless exclusive credit is given to one of them ; and, if it is, then his remedy is limited to that party.* § 388. In the next place, in relation to the lien of sub-agents. We have seen, that, ordinarily, an agent has not a power to sub- stitute a sub-agent in his stead, so as to bind the principal to the act of the latter, except where there is an express agreement, or usage of trade, which justifies it.^ We have also seen, that, gen- erally, a sub-agent is only responsible to his immediate employer, and not to the paramount principal ; ^ although this, again, may be affected by the express agreement of the parties, or by the usage of trade, creating a direct privity between them.'' If, therefore, no privity exists between the principal and the sub- agent, no lien can be acquired by the latter against the former, ' Ante, §§ 1, 5, 201, 289. ' Ante, §§ 14, 15, 217. See Paley on Agency, by Lloyd, 49. ' Ante, §§ 13-15, 217; Paley on Agency, by Lloyd, 49; 1 Liverm. on Agency, 64-66 (ed. 1818) ; CuU v. Backhouse, cited 6 Taunt. 148 ; Sohmaling V. Tomlinson, 6 Taunt. 147. ' * Ibid. " Ante, §§ 13-15; 1 Liverm. on Agency, 54-66 (ed. 1818). « Ante, §§ 13-15, 217 ; 1 Liverm. on Agency, 54-60 (ed. 1818). ' Ante, §§ 217, 289. §§ 386-389.] EIGHT OP LIEN OP AGENTS. 457 unless so far as he may claim, by way of substitution, the lien of his immediate employer, of which we shall presently speak. But, wherever such a privity does exist, the sub-agent will incur a direct and immediate responsibility to the principal, and not merely to the agent who employs him.^ He will also have a reciprocal personal claim against the principal, and will be clothed with a lien against him to the extent of the services per- formed, and the advances and disbursements properly made, by him, on account of the sub-agency.^ § 889. A sub-agent, who is employed by an agent to perform a particular act of agency, without the privity or consent of the principal, may also acg[uire a lien upon the property thus com- ing into his possession, against the principal, for his commis- sions, advances, disbursements, and liabilities thereon, if the principal adopts his acts, or seeks to avail himself of the property or proceeds, acquired in the usual course of such sub-agency.^ For the principal will not be allowed to avail himself of the ben- efits of the transaction, without at the same time subjecting him- self to its burdens.* If he ratifies the acts of the sub-agent, he thereby clothes those acts with all the proper accompaniments of an original authority.^ If he does not ratify them directly, still, if he seeks to avail himself of the acts of the sub-agent, so as to found derivative rights upon them, and not merely to avail himself of his original rights in his own property, paramount of ' Ante, §§ 201, 217. " Paley on Agency, by Lloyd, 148, 149 ; Snook v. Davidson, 2 Campb. 218 ; Lanyon v. Blanchard, 2 Campb. 597 ; Mann v. Shiffner, 2 East, 523, 529 ; 2 Liverm. on Agency, 87-98 (ed. 1818) ; Lincoln v. Battelle, 6 Wend. 476. ' Paley on Agency, by Lloyd, 148, 149 ; Id. 49 ; Montagu on Lien, Pt. 1, ch. 4, pp. 72-74; Snook v. Davidson, 2 Campb. 218; Lanyon v. Blanchard, 2 Campb. 597, 598 ; Westwood v. Bell, 4 Campb. 348, 363. * Ante, §§ 242-244, 249. « Ibid. §§ 253, 258, 259, ante (4). See also Willinks v. Hollingsworth, 6 Wheat. 259 ; 1 Liverm. on Agency, 54-66 (ed. 1818). We should carefully distinguish between cases of this sort, and cases where the principal seeks only to avail himself of his original rights in his property, which has been improperly confided to, and sold by, a sub-agent. The bringing of a suit for the property, or for the proceeds, under such circumstances, will not subject the principal to the charges and expenditures incurred thereon by the sub-agent, unless the form of the action establishes a ratification of the proceedings. See ante, § 259, and note ; 1 Liverm. on Agency, 66-66 (ed. 1818) ; Schmaling v. Tomlinson, 6 Taunt. 147. 458 AGENCY. [CH. XIT. those acts and independent of their aid, he must take the acts with all the responsibilities and charges, and incidents annexed to them, according to the well-known maxim, Qui sentit commo- dum sentire debet et onus.^ But a sub-agent has no general lien upon the property of the principal, on account of any balance due to him from the immediate agent, who employs him, when he knows or has reason to believe, that the latter is acting for another person at the time of his sub-agency.^ At the same time, however, he will be at liberty to avail himself of his gen- eral lien against the principal to the extent of the lien, particular or general, which the agent himself has at the same time against the principal, by way of substitution to the rights of the agent, if the acts of the latter, or his own, are not tortious.^ In this re- spect, there seems to be an admitted difference between the case of a pledge, or other unauthorized act, by an agent or factor, which is treated as a tortious act, and the creation of a sub- agency, and the delivery of the property to the sub-agent, in ' 1 Co. R. 99 ; Branch, Maxims, 182 (ed. 1824) ; Solly v. Rathbone, 2 M. & Selw. 298; Cockran v. Irlam, 2 M. & Selw. 301, note; Ante, § 113, and note. ' Paley on Agency, by Lloyd, 147-149 ; Maanss v. Henderson, 1 East, 335 ; Mann v. Shiffner, 2 East, 623, 529, n. ; Westwood v. Bell, 4 Campb. 348; Montagu on Lien, B. 1, Ft. 4, eh. 4, p. 74-76 ; 2 Liverm. on Agency, 87-98 (ed. 1818). ' Paley on Agency, by Lloyd, 147-150 ; Maanss v. Henderson, 1 East, 835 ; Mann v. Shiffner, 2 East, 523, 529 ; M'Combie v. Davies, 7 East, 7 ; Solly v. Rathbone, 2 M. & Selw. 298 ; Cochran v. Irlam, 2 M. & Selw. 301, note ; Schmaling ». Tomlinson, 6 Taunt. 147 ; Montagu on Lien, B. 1, Ft. 4, ch. 4, pp. 74-76. In the case of Snook v. Davidson, 2 Campb. 218, it seems to have been held by Lord EUenborough, that the sub-agent could not hold, by way of substitution, the lien of his immediate employer for his general balance against the principal, but only his lien for the premium on the particular policy. This doctrine may not, at first sight, seem reconcilable with the decision of the court in Mann v. Shiffner, 2 East, 623, where a sub-agent of a policy was held enti- tled to retain, to the extent of the general balance of his immediate .employer, against the principal. The distinction between the cases seems to be, that, in the case in 2 East, 623, the employment of the sub-agent was in the usual course of business ; whereas in the case in 2 Campb. 218, it was held, that there •was no privity between the principal and the sub-agent, he not being employed in the usual course of business. But, as the principal sought to recover the pol- icy, so procured by the sub-agent, it seems difficult to perceive why the action did not amount to a ratification of the sub-agency ; and then the sub-agent, as servant of his immediate employer, would be entitled to retain for the general balance, upon the principle decided in 2 East, 523. §§ 389, 390.] EIGHT OP LIEN OP AGENTS. 459 order to eiFectuate the original purposes of the principal, accord- ing to the usual course of business.^ In the latter case, the delivery of the property to the sub-agent is treated as a rightful pledge, sub modo, in his favor, to the extent of the lien of the original agetit.^ § 390. In many cases, however, a sub-agent, who acts without any knowledge, or reason to believe, that the party employ- ing him is acting as an agent for another, will acquire a right- ful lien on the property, for his general balance. Thus, for example, if a sub-agent, or broker, at the request of an agent, should effect a policy on a cargo, supposing it to be for the agent himself, but, in fact, it should be for a third person, for whom tlie agent has purchased the cargo, and afterwards, and while the policy is in the broker's hands, he should make ad- vances to the agent, before any notice of the real state of the title to the property, he will be entitled to a lien on the policy, and on the money received on it, to the extent of the money so advanced, and also (as it should seem) for his general balance of account against the agent.^ For the broker may well be ' Ante, §§ 78, 113, 235 ; Paley on Agency, by Lloyd, 213 ; Id. 143 ; Solly ». Eathbone, 2 M. & Selw. 298 ; Cockran v. Irlam, 301, note ; Montagu on Lien, B. 1, Ft. 40, ch. 4, p. 73. ' Paley on Agency, by Lloyd, 145, 147-155 ; M'Combie o. Davies, 7 East, 7; Ante, § 113, and note. ' Mann v. Forrester, 4 Campb. 60; Westwood v. Bell, 4 Campb. 348, 353; Smith on Merc. Law, 340 (2d ed.) ; Id. pp. 515, 516 (3d ed. 1843) ; Paley on Agency, by Lloyd, 148, 149 ; 2 Liverm. on Agency, 87-92 ; Montagu on Lien, B. 1 Pt. 4. ch. 4, pp. 75, 76 ; Westwood v. Bell, 4 Campb. 349, 353. In this last case. Lord Chief Justice Gibbs said, " I hold, that, if a policy of insurance is eifected by a broker, in ignorance that it does not belong to the persons by whom he is employed, he has a lien upon it for the amount of the balance which they owe him. In this case, Clarkson has misconducted himself, and is liable for not disclosing that he was a mere agent in the transaction ; but the defend- ants, who had every reason to believe that he was the principal, are entitled to hold the policy. If goods are sold by a factor in his own name, the pur- chaser has a right to set off a debt due from him, in an action by the principal for the price of the goods.- The factor may be liable to his employer for hold- ing himself out as the principal ; but that is not to prejudice the purchaser, who bond fide dealt with him as the owner of the goods, and gave him credit in that capacity. The lien of the policy-broker rests on the same foundation. The only question is, whether he knew, or had reason to believe, that the person by whom he was employed, was only an agent; and the party who seeks to deprive him of his lien must make out the affirmative. The employer is to be taken to be the principal till the contrary is proved. If the plaintiff's assent to the em- 460 AGENCY. [CH. XIV. supposed to have made the advances, or delayed his demands relying on the credit of the policy, which is allowed to remain in his hands.i So, if a factor should sell goods of his principal in his own name, without any notice on the part of the pur- chaser, that the goods are not his own, the purchaser will be entitled to set off a debt, due to him from the factor, against the price of the goods.^ The ground of this doctrine undoubtedly is, that, where any person holds himself out as a principal, with the consent of the owner, third persons, who deal with him lond fide, are entitled to all the rights which they would have if he were the real principal.^ And so, if a party assumes to act ployment of Clarkson is denied, then ie can have no right to the policy, and there is no privity between the parties. The argument about pledging the policy is fallacious. This never was a policy of the plaintiff's, which he held unincumbered, and handed over to his agent. In its very origin and creation it was burdened with the lien. It never has been the plaintiff's for an instant, but subject to the lien which is now claimed. The rights of the parties do not stftnd on the same footing as if Clarkson had said he had authority to pledge the policy ; but, as if he had said, ' The goods to be insured are mine, the pol- icy is for my benefit alone, and I agree that, when it is effected, it shall remain in your hands till the whole of the balance I owe you is satisfied ; and on the strength, you will continue to trust me.' If that had passed, can I say, that the defendants are to be stripped of their rights on account of a fact of which they had no knowledge, and that they are to deliver up to a stranger the pohcy which they have effected under a contract, that they should hold it as a security for the balance due to them from their employer ? Nor do the cases cited on the part of the plaintiff at all contradict the doctrine I am laying down. In Snook V. Davidson, the person who employed the defendants to effect the poli- cy, said that it was for a correspondent in the country. In Lanyon ». Blan- chard, likewise, the defendant must be taken to have had notice that the person who employed him was not the principal. The representation made by Crowgy, that he had authority to indorse the bill of lading, was abundantly sufficient to show that he was only an agent ; and I entirely subscribe to what Lord Ellen- borough is there supposed to have laid down respecting the risk which the de- fendant run in giving faith to that representation. The subsequent case of Mann v. Forrester, is quite decisive. The doctrine stands upon authority as well as upon principle. I should have had no difficulty in determining the ques- tion, were it entirely new ; and I find myself strongly fortified by the opinions of other judges." See also George v. Claggett, 2 Esp. 657 ; s. c. 7 T. R. 359 ; Eabone v. Williams, 7 T. R. 861, n. ; Paley on Agency, by Lloyd, 325-327, 329, 330; Baring v. Corrie, 2 B. & Aid. 137. ' Ibid. " Paley on Agency, by Lloyd, 325 ; Coppin u. Walker, 7 Taunt. 239 ; Lime Rock Bank v. Plimpton, 17 Pick. 159 ; 2 Smith's Leading Cases, 77 and notes (2d ed.) ; see Young v. White, 7 Beavan, 606. » Ibid. §§ 390, 391.] EIGHTS AS TO THIRD PERSONS. 461 as principal, being only an agent, the real principal shall not be permitted to avail himself of the benefit of the transaction, with- out subjecting himself to the burdens which would attach to the transaction, if the ostensible party were the real party in interest.^ CHAPTER XV. BIGHTS OF AGENTS IN REGARD TO THIRD PERSONS. [* § 391. Ordinarily an agent contracting in the name of his principal, and not in his own name, cannot sue or be sued on such contracts. 392. Modifications of this doctrine. 393. Cases in which the contract is made with the agent, in which he is the only known principal, in which he is authorized to act as principal, and in which he has a special interest or property. 394. Illustrations of the first class of cases. ^ 396. Illustrations of the difficultj' of determining the proper party contracted with. 396. Where agent acts in his own name only, other contracting party bound person- ally to agent from reciprocity of obligation. 397. Illustrations of the third and fourth class of cases. 398. Agent answerable to his principal for the price of goods is entitled to sue for it. 399. Various contracts made by masters of ships fall under the like consideration. 400. 401. Case of factors, foreign and domestic, clearest illustration of third class of cases. 401 o. Also of fourth class of cases. 402. This right of agents to maintain suits in their own names, subject to qualifications. 403. It is subordinate to and controllable by their principals. 404-406, and 406 a. Other contracting party generally entitled to make same defence against agent as against suit brought by principal. 407. But if agent has an interest in property he is entitled to protection as well against the principal as against the other contracting party. 408. Case of factor who has advanced on his principal's goods, an illustration. 409. Payment by purchaser to principal after notice of factor's interest, no defence. 410. Subject to these special rights of the factor or agent, the principal may assert hia general rights over every contract of purchase, and sale made on his behalf in course of the agency. 411. Similar principles apply to matters of defence by an agent, where he is personally responsible on the contract as well as his principal. 412. Public agents cannot ordinarily sue upon their contracts. 413. Agent authorized to receive payment for his principal must do so according to the ordinary modes of business. ' Paley on Agency, 172-175 ; Hovil v. Pack, 7 East, 164, 166 ; 2 Liverm. on Agency, 87-98 (ed. 1818) ; Fergusson v. Carrington, 9 B. & Cressw. 69; Ante, § 389. See Hurlburt v. Pacific Ins. Co. 2 Sumner, 476; Ante §389. 462 AGENCY. [CH. X7. 414-416. Remedy of agents for mere torts is confined to cases where their right of possession is injuriously invaded, or where they incur a personal responsi- bility or loss or damage in consequence of the tort.] § 391. Having considered the rights of agents in regard to their principals, we may next proceed to the consideration of tlieir rights in regard to third persons, which will also include a review of the duties and obligations of the latter to the former. We have already had occasion to remark, that, iu general, agents, acting openly and notoriously as such, do not, by their acts or contracts, made or done in the name of their principals, incur any personal responsibility whatever ; but they are treated not so much as parties thereto, as they are as instruments, through whom the acts or contracts of their principals are effected.^ Hence it is, that, ordinarily, an agent, contracting in the name of his principal, and not in his own name, is not enti- tled to sue, nor can he be sued, on such contracts.^ Thus, an agent selling the goods of his principal in his name, and as his agent, cannot ordinarily sue on the contract, as for goods sold and delivered. This is clearly illustrated in the common case of a sale made by a clerk or shopman in a shop, who has no right whatsoever to sue on the contract: but the right belongs exclu- sively to his superior or employer. So, if a purchase is made by a clerk or shopman, for and in the name of his principal, the latter only is liable on the contract ; for the natural, if not the necessary, implication, in such cases, is, that credit is exclusively given to the principal, and that the clerk or shopman acts as a mere naked agent for him in making the bargain.^ We have seen, that the Roman law originally proceeded upon an opposite principle, holding tlie agent, in such cases, personally and exclu- sively liable, until the praetor introduced an equitable rem(3dy against the principal.* § 392. But there are exceptions to, or rather modifications of, the doctrine in both respects. We have already had occa- sion to state, that, where agents contract in their own name, although notoriously for their principals, they are deemed to be ■ Ante, §§ 160, 161, 261-263. 2 Ante, § 102, note, §§ 160, 161, 169, 170, 261-263 ; Gunn v. Cantine, 10 John. 387; 2 Liverm. on Agency, 215, 216 (ed. 1818). 2 Ante, §§ 160, 161, 261-263, 269, 270. * Ante, §§ 163, 261, 262, 269, 271. §§ 391-393.] EIGHTS AS TO THIRD PERSONS. 463 parties to the contract, and are liable • thereon ; and that such liability may exist, notwithstanding the principal is also liable on the same contract.^ But the exceptions, or modifications of the doctrine, which now require our more immediate attention, respect the cases, where the agent acquires rights against third persons, notwithstanding he acts merely as agent. This sub- ject naturally divides itself into two branches : first, the cases in which agents acquire rights, founded upon contracts made by them in that character, against third persons ; and secondly, the cases in which they acquire rights against such persons, founded upon the torts of the latter to them in the course of their agency. § 393. And, first, in relation to the rights of agents against third perspns, founded upon contracts made by them. These rights, being in derogation of the general doctrine already stated, apply only to special and particular cases. They are all resolva- ble into the following classes : First, where the contract is made iu writing expressly with the agent, and imports to be a contract personally with him, although he may be known to act as an agent.2 Secondly, where the agent is the only known or osten- sible principal, and, therefore, is, in contemplation of law, the real contracting party .^ Thirdly, where by the usage of trade, or the general course of business, the -agent is authorized to act as the owner, or as a principal contracting party, although his character as agent is known.* Fourthly, where the agent has made a contract, in the subject-matter of which he has a special interest or property, whether he professed at the time to be act- ing for himself, or not.^ In all these cases, the agent acquires ' Ante, §§ 164-159, 161, 266-270, 276 ; Pentz v. Stanton, 10 Wend. 271 ; Beebee v. Robert, 12 Wend. 413 ; Higgins v. Senior, 8 Mees. & Wels. 480 ; Ante, § 270, note. ' See Ante, §§ 266, 269, 275, 278 ; 3 Chitty on Com. & Manuf. 210, 211 ; Clay I). Southern, 7 Exch. 717 ; Burrell v. Jones, 3 B. & Aid. 47 ; Iveson V. Conington, IB. & Cress w. 160; Post §§ 894^396; 1 Liverm. on Agency, 215-221 (ed. 1818) ; BanfiU v. Leigh, 8 T. R. 571. See Hudson v. Granger, 5 B. & Aid. 27, 32, 33 ; Fisher v. Ellis, 3 Pick. 322 ; Fairfield v. Adams, 16 Pick. 881 ; Ante, §§ 260, 260 a, 269, 270 ; 2 Kent, Comm. Lect. 41, pp. 631, 632 (4th ed.). But see Garland v. Reynolds, 2 Appleton, 45. ' See ante, 102, note, 160, 161, 266-270, 293; Post, § 396. * See ante, §§ 268-270, 278; Post, 397. ' Smith on Merc. Law, p. 138 (3d ed. 1843). See Dunlap u. Lambert, 6 Clark & Finnell. 600, 626, 627 ; Bryan v. Wilson, 27 Ala. 216 ; Post, §§ 394, 464 AGENCY. [CH. XV. personal rights, and may maintain an action upon the contract, in his own name, without any distinction, whether his principal is or is not, entitled also to similar rights and remedies on the same contract.^ 394. The first class may be illustrated by the common instance of a promissory note, given to an agent as such, for the benefit of his principal, where the promise is, to pay the money to the agent eo nomine, in which case he may sue on the note in his own name.^ So, a promissory note, promising to pay A., and B., " trustees of " (naming the corporation), may be sued by A. and B., as proper parties thereto.^ So, a promissory note, made payable, or indorsed to A., " cashier," or order, may be sued by him personally, he being the cashier of a bank.* So, a promis- sory note, payable to A.," commissioner and agent for the inhab- itants of the county ofB.," may be sued by A., as a proper party .^ So, if a promissory note should contain a promise by the maker to pay to A., for the use or the benefit of B., a certain sum of money. A., and not B., would be the proper person to maintain an action on the note.^ So, a promise to pay A., " guardian of B.," may be sued by A., and cannot be sued by B.' So, a note to A. and B., trustees of the corporation of B-, might be sued by A. and B., and not by the corporation.** So, where a bond is given to A., for the use of himself and B., it will be treated as a bond given to A., and he is solely entitled to sue thereon, as 397, 407, 408, 424. [* Where an agent employed simply to sell goods and pay over the money to his employer, exchanges such money with a third person, receiving in exchange a counterfeit bill, he may maintain an action in his own name to recover the money paid out by him. Kent v. Bernstein, 12 Allen, 342.] > See ante, §§ 160, 162, 268-270, 272-276, 278. ° Commercial Bank v. French, 21 Pick. 486 ; Fairfield u. Adams, 16 Pick. 381 ; Fisher v. Ellis, 3 Pick. 322 ; Ante, §§ 260, 260 a, 269, 270. But see In- habitants of Garland c. Reynolds, 2 Appleton, 46, and other cases cited in note to ante, § 269. Binney v. Plumley, 6 Vt. 600. ^ Binney v. Plumley, 6 Vt. 500. * McHenry v. Ridgely, 2 Scaram. (111.) 809 ; Porter e. Nekervis, 4 Rand. (Va.) 359 ; Johnson w. Catlin, 27 Vt. 89 ; Post, § 396. ' McConnell u. Thomas, 2 Scamm. (111.) 313. But see ante, § 269, note ; and post, § 396. " Bufi'um V. Chadwiok, 8 Mass. 103 ; Doe ». Thompson, 2 Foster, 217. ' Wheelock v. Wheelock, 6 Vt. 433. " Binney w. Plumley, 5 Vt. 500. §§ 393, 394.] EIGHTS AS TO THIRD PERSONS. 465 obligee ; and B. can neither sue tliereon, nor release it at law.^ So, where an acceptance is, to pay an agent the amount of a bill of exchange, he may, although he is a known agent, sue thereon in his own name.^ So, if an agent is the shipper of goods, and by the bill of lading they are deliverable to him or his assigns, he paying freight, he may sue thereon, although he is a known agent ; for the bill of lading amounts to a direct con- tract with him.^ [So, the person named as shipper in a bill of lading, may sue the carrier for injury to the goods, although he has neither a general or special property therein.*] So, if a sale note purport to be made by A., on account of B.,and the pur- chaser to pay A., by a bill payable at a future day, it seems, that A. may sue on the contract, especially if he has a beneficial interest in it.^ So, if a negotiable 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.^ So, where a policy of insurance is procured to be underwritten by an agent in his own name, for the benefit of a particular person, or for whom it may concern, the agent may sue thereon, in his own name, for any J Offley V. Warde, 1 Lev. 235. See also the Reporter's note to Piggott v. Thompson, 3 Bos. & PuU. 149 (a). ' Van Staphorst v. Pearce, 4 Mass. 268. ' See Joseph v. Knox, 3 Campb. 320 ; 1 Liverm. on Agency, 216, 217 (ed. 1818) ; Griffith v. Ingledew, 6 Serg. & R. 429. But see Abbott on Shipp. Pt. 3, ch. 2, § 3, p. 216 (Amer. ed. 1829) ; Id. Pt. 3, ch. 7, § 4, pp. 285-287, and notes to Amer. ed. 1829. See Sargent v. Morris, 3 B. & Aid. 277 ; Ante, §§ 268, 264. * [Blanchard v. Page, 8 Gray, 281, where the subject is very fully examined by Shaw, C. J.] ' Atkyns v. Amber, 2 Esp. 493 ; 2 Liverm. on Agency, 217-219 (ed. 1818). " Solomons v. Bank of England, 13 East, 135, n. ; Clarke v. Pigot, 12 Mod. 196 ; Adams v. Oakes, 6 Carr. & Payne, 70 ; De la Chaumette v. Bank of Eng- land, 9 B. & Cressw". 208 ; Little v. Obrien, 9 Mass. 423 ; Brigham v. Marean, 7 Pick. 40 ; Banks v. Eastin, 15 Martin, 291 ; Ante, §§ 227, 228 ; 1 BeU, Comm. § 412, p. 392 (4th ed.) ; Id. pp. 493, 494 (5th ed.) ; United States v. Dugan, 3 Wheat. 172, 180 ; Guernsey v. Burns, 26 Wend. 411 ; McConnell v. Thomas, 2 Scamm. (111.) 313 ; Story on Bills of Exchange, § 224 ; contra Thatcher v. Winslow, 5 Mason, 68 ; Sherwood v. Roys, 14 Pick. 172. The latter was a note payable to bearer, and held by the ag^nt to collect ; but no transfer of the property was intended. There were some peculiarities in this case, as well as in that of Thatcher v. Winslow, which distinguish them from the other cases, and may, perhaps, reconcile them with the general doctrine stated in the text. AGENCY. 30 466 AGENCY. [CH. XT. loss occurring under the policy ; for he is treated as a direct party to the contract, and the underwriter undertakes to pay the loss to him.i And yet, in such a case, there is no doubt that the principal may sue in his own name, on the same policy.^ So, in the case of a bill of lading, signed by the master, he may sue for the freight and primage.^ So, upon a charter-party, exe- cuted by the master in his own name, on behalf of the owner, he may sue for any breach of the covenants contained therein on the part of the charterer.* Indeed, for many purposes, as we have already seen, masters of ships are treated as possessing the powers and rights of owners.^ The same principle applies gen- erally to cases, where contracts are made by agents with third persons, under the seal of both parties, and the contracts are in their own proper names ; for, in such cases, the principal cannot be treated as a party in form, or entitled to avail himself of the contract ex direoto, however he may be indirectly bound by, or entitled to avail himself of it.^ 1 Ante, §§ 109, 111, 160, 161, 272, 273; Post, § 498; Paley on Agency, by Lloyd, 361, 362 ; 2 Story on Eq. Jurisp. § 460; Uspariolia v. Noble, 13 East, 332 ; Sargent v. Morris, 3 B. & Aid. 277, 280. ^ Ibid. We have already seen, that this doctrine is not peculiar to the Eng- lish law ; but that it is recognized in the jurisprudence of continental Europe. See ante, §§ 109, 111, 272, 273; 1 Emerig. Assur. ch. 5, § 3, pp. 137, 188; Id. § 4, pp. 139-141 ; Pothier, Traits d' Assur. n. 96 ; 2 Valin. Com. Liv. 3, tit. 6, art. 3, pp. 132, 133. In Sargent v. Morris, 3 B. & Aid. 277, 280, Mr. Justice Bayley said, "Now, I take the rule to be this, — if an agent acts for me, and on my behalf, but in his own name, then, inasmuch as he is the person with whom the contract is made, it is no answer to an action in his name to say, that he is merely an agent, unless you can also show that he is prohibited from carrying on that action by the person on whose behalf the contract was made. In such cases, however, you may bring your action, either in the name of the party by whom the contract was made, or of the party for whom the contract was made. In policies of insurance, it is a common practice to bring your action, either in the name of the agent or principal." Where the policy of in- surance is under seal, there, upon principles already suggested, the action must be brought exclusively in the name of the agent. Paley on Agency, by Lloyd, 362; 3 Chitty on Com. & Manuf. 211; Ante, §§ 165, 160-162; Id. 272-278; Shack V. Anthony, 1 M. & Selw. 673. ■■' Abbott on Shipp. Pt. 3, ch. 7, § 4, pp. 282-288 (Amer. ed. 1829) ; Id. Pt. 3, ch. 3, § 11, pp. 246-249. * Abbott on Shipp. Pt. 8, ch. 1, § 2 (Amer. ed. 1829) ; Ante, §§ 116, 158, 161, 273, 278, 294; 3 Chitty on Com. & Manuf. 210, 211; Post, §§ 899, 400 " Ante, §§ 116, 160 a, 161, 294, 298, 299. « Ante, §§ 166, 160, 160 a, 161, 162, 272, 273, 275-278 ; Hopkins v. Mehafify, §§ 394, 395.] RIGHTS AS TO THIRD PERSONS. 467 § 395. In all the foregoing cases, it is apparent, that the agent is the direct party, with whom the contract is made ; and there- fore no difficulty can arise as to his title to sue.^ But it is some- times a matter of difficulty, upon the face of a writing, to ascertain who is the proper party contracted with, whether he be the prin- cipal, or the agent. In such cases, resort must be had to the whole instrument, in order to ascertain who that party is ; and, when the proper interpretation is fixed, the law will act accord- ingly upon it. Some cases may be useful to illustrate the diffi- culty as well as to show the manner in which it has been overcome. Thus, for example, where A., in writing, agreed to pay the rent of certain tolls, which he had hired for three years of certain commissioners for drainage, " to the treasurer of the commission- ers," it was held, that no action was maintainable by the treas- urer in his own name for the rent, but that it was a promise to the commissioners to pay the rent to the person whom they should, from time to time, appoint to receive it.^ So, where certain persons signed a subscription paper, to take certain shares in a turnpike corporation, set against their names, and to pay on de- mand to A. B. or order, all assessments, made by the corporation for the purposes of the road ; it was held, that A. B. (who was agent of the corporation) could not recover upon the promise in his own name ; but that the suit must be brought in the name of the corporation, upon the ground, that, there being no consideration between the agent and the subscribers, he could not support an action.^ So, where an attorney gave a receipt by which he ac- 11 Serg. & R. 129 ; Ante, § 273, note (1) ; 8 Chitty on Com. & Manuf. 211 ; Hanford v. McNair, 9 Wend. 64 ; Blood v. Goodrich, 9 Wend. 68 ; Spencer v. Field, 10 Wend. 87 ; Potts v. Rider, 3 Hamm. Ohio, 71. ' See Hudson v. Granger, 5B. & Aid. 27, 32, 33. ' Piggott V. Thompson, 3 Bos. & Pull. 147, 150 ; 2 Liverm. on Agency, 216, 216 (ed. 1818). ' Gilmore v. Pope, 5 Mass. 491 ; Ante, § 274. It is somewhat difficult to reconcile this case with other admitted doctrines. If there be a consideration for a promise, it does not seem material, from whom it comes. [See Colburn ». Phillips, 13 Gray, 66.] See on this point Piggott v. Thompson, 3 Bos. & Pull. 147, and the note (a) of the Reporters, p. 149. Lord Alvanley, in the case of Piggott v. Thompson, said, " It is not necessary to discuss, whether, if A. let land to B., in consideration of which the latter promises to pay the rent to C, his executors and administrators, C. may maintain an action on this promise.'' The Reporters, in their note, say, "This very point arose in Lowther v. Kelly, 8 Mod. 116, where the plaintiff's attorney had made a lease 468 AGENCY. [CH. XT. knowledged, that he had received of A. B. an agreement between C. & D. " assigned to S. S., to collect the money therein contained," it was held, that A. B., being the mere agent of S. S., could not by indenture to the defendant in his own name, rendering rent to the plaintiff, whom the defendant covenanted to pay. But the case appears to have been adjourned, after argument, without any decision. It is said by Levinz, J., in Gilby V. Copley, 3 Iiev. 139, that, when a deed is made inter partes, a stranger shall not take advantage of a covenant made for his benefit. But, where it is not made inter partes, he may, whether the deed be indented or not. For this he cites Cooker v. Child, Hil. 24 and 25, Car. 2, B. R., which was an action on a charter-party indented in these terms : ' This indented charter-party wit- nesseth, that Bindley, master and part owner of the ship, with the consent of Cooker, the other part owner, hath let the ship-to Child, on such a voyage;' and Child covenanted with Bindley, necnon with Cooker, to "pay £300 ; and it was held, that Cooker might maintain the action. Lord Holt also, in Salter ». Kingley, Carth. 77, held, that one party to a deed could not covenant with another, who was no party, but a mere stranger to it. So, where a bill was sealed in this manner, 'Received of A. £40 to the use of B. and C, equally to be divided, to be repaid at such a time to the use of B. and C.,' it was re- solved, that B. and C. might each sue for £20. Shaw ». Sherwood, Cro. Eliz. 729, affirmed in error, Yelv. 23. But, where a bond was made to A. for the benefit of B., it was adjudged the latter could neither sue upon it, nor release it, he not being a party to the bond. Offley v. Ward, 1 Lev. 235. Vide etiam 2 Inst. 673. With respect to the right of a third person to sue upon a parol promise made to another for his benefit, there is great contradiction among the older cases, all which are collected 1 Vin. Abridg. fol. 333-337, Actions of Assumpsit, Z. But, in Button v. Poole, Mich. 29, Car. 2, B. R. 2 Lev. 210; s. c. 1 Vent. 318 ; s. c. Sir T. Raym. 302 ; and s. c. Sir T. Jones, 102, the point seems to have been very fully considered and very solemnly decided. There, the father of the plaintiff's wife, being seised of a wood, which he in- tended to sell to raise fortunes for younger children, the defendant being his heir, in consideration that he would forbear to sell it, promised to pay his daugh- ter, the plaintiif's wife, £1,000, for which the action was brought; and it was held, that the plaintiff might well maintain the action ; which decision was affirmed in the exchequer chamber. In that case, indeed, some stress was laid upon the nearness of relationship between the plaintiff's wife and her father, to whom the promise was made. But another case has since occurred, to which that reason does not apply. In Martin o. Hinde, Cowp. 437, the plaintiff declared against the defendant, rector of A., upon an instrum.ent in writing, dated, &c., whereby the defendant promised the plaintiff to retain him as curate, till, &c., and to allow him £50 per annum. The instrument produced in evi- dence was a certificate, addressed to the bishop, whereby the defendant nom- inated the plaintiff his curate, and promised to allow him £50 per annum. Upon this evidence the plaintiff was, after argument, held entitled to recover against the defendant. So in Marchington v. Vernon, 1 Bos. & Pull. 101, in notis, BuUer, J., expressly says, 'If one person makes a promise to another for the benefit of a third, that third may maintain an action upon it.' " The § 395.] BIGHTS AS TO THIKD PERSONS. 469 sue the attorney for the moneys collected; but that the suit should be by S. S. So, where a bill of lading acknowledged that the master had received the goods of A., and the master under- decision in Gilmore v. Pope, 5 Mass. 491, seems also in direct conflict with the doctrine in Higgins v. Senior, 8 Mees. & Wels. 834, 844 ; Ante, §§ 160, 160 a, 270. See also Binney v. Plumley, 5 Vt. 500. See also 2 Liverm. on Agency, 217-220 (ed. 1818); Taunton and South Boston Turnpike v. Whiting, 10 Mass. 327, 336, commenting on Gilmore v. Pope, 5 Mass. 491. [In Colbum V. Phillips, 13 Gray, 66, Hoar, J., said, "In Gilmore v. Pope, 5 Mass. 491, which was an action upon a subscription for shares in a turnpike company, with a promise to pay the assessments to the plaintiff, who was an agent of the com- pany, the plaintiff was nonsuited, and Parsons, C. J., said, ' The action cannot be maintained in the name of a mere agent of the corporation, as in this trans- action the plaintiff has alleged himself to be ; there being no consideration, 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 ad- mitted as associates in the corporation. This is very clearly a contract with the corporation. The promise is to pay the assessments to Gilmore, or order; but there is not in terms any promise to Gilmore himself. 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, 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 Bufium 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 consideration 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 directly with the corporation.' In the case of Commercial Bank «.. French, 21 Pick. 486, it was decided, that a promissory note made to ' the cashier of the Commercial Bank,' 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 decision; but the case rests upon the doctrine that, by a just construction of the language used, as terms of de- scription, the contract was made with the bank. In Eastern Railroad ». Bene- dict, 5 Gray, 561, it was determined 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 authorities were fully examined and discussed, and we are satisfied with the correctness of the de- cision ; but no question arose in that case whether the action might not have been maintained, if brought in the name of the payee. In Gunn v. Cantine, 470 AGENCY. [CH. XV. took to deliver them to A., and in his name, according to usage, to B. or his assigns (he or they), paying freight ; and the goods were the property of A. ; it was held, that A. not B. ought to 10 John. 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 suggested in regard to the case of Gilmore v. Pope. There is a class of cases in which it has been held that a promise to a public officer, in his official capacity, must be enforced by a suit in the name of the public body for which he acts. Piggott v. Thompson, 8 Bos. & Pull. 147 ; Irish v. Webster, 6 Greeul. 171 ; Garland v. Reynolds, 20 Maine, 45. The principle 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 il is put is, that a just con- struction of the contract makes it the contract of the principal. In Thatcher v. Winslow, 5 Mason, 58, 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 Gunn 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 negotiable 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 con- tract 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 author- ities ; and we are satisfied that, to support an action upon an express promise, it is in general imm,aterial whether the consideration move from the promisee or from another. In Baxter v. Read, cited in Dyer, 272, 6, note, it was ' adjudged, that where Baxter had retained Read to be miller to his aunt, at ten shillings per week, this will support an action on the case ; for although it is not bene- ficial to Baxter, it is chargeable to Bead.' 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. § 395.] EIGHTS AS TO THIRD PEESONS. 471 bring a suit for the goods, or for damages done to them.^ So, where a bill of lading was for a shipment of goods consigned to A. for the account of B. ; it was held, that B. and not A. was the proper party to bring an action for the non-delivery .^ So, where the mayor of a corporation, in behalf of himself and the rest of the burgesses and commonalty of the corporation, signed in his own name, as mayor, a memorandum of a sale of some real es- tate of the corporation with the purchaser, and they thereby mutually agreed to perform and fulfil, on each of their parts re- spectively, the conditions of the sale ; it was held, that the mayor could not maintain an action upon the agreement against the pur- and in your name, according to custom and usage, to Mr. Sargent or his assigns, paying freight,' &c. In Sims v. Bond, 6 B. & Adolph. 393, and 2 Nev. & Mann. 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 executed on his part. We think the promise of the defendants was upon a sufficient consideration, and may be enforced by the person to whom it was expressly made."] ' Sargent v. Morris, 3 B. & Aid. 277. See also Evans v. Marlett, 1 Ld. Eaym. 271 ; 12 Mod. 156 ; 3 Salk. 291. But see Paley on Agency, by Lloyd, 364; Ante, §§ 263, 269, 274, 394. ° Ibid. It has been matter of some contrariety of opinion, whether, if a bill of lading contains a clause, that the goods shall be delivered to the shipper or his assigns, and it is indorsed to an agent of the shipper, the agent can, as consignee, maintain an action for the non-delivery or conversion of the goods, as he has no interest in them before they come to hand. In Coxe v. Harden, 4 East, 211, the court intimaited a strong opinion, that he could not. Lord EUenborough, in Waring v. Cox, 1 Campb. 369, ruled the same point the same way. But Mr. Paley says, that, it seems at present to be settled, that he may, provided the consignment be not countermanded. But for this he cites no authority, except an unreported anonymous decision before Lord EUenborough, at the sittings after Trinity Term, 1810. Paley on Agency, by Lloyd, 364. See Abbott on Shipp. Pt. 3, ch. 2, § 3, p. 216 (Amer. ed. 1829) ; Ante, § 274, and note. In Griffith v. Ingledew, 6 Serg. & R. 429, goods were shipped at Liverpool by A. on his own account, but by .the bill of lading they were, made deliverable to B. or his assigns at Philadelphia. The freight on the goods was paid at Liverpool by A. It was held, that B. could maintain an action against the owner of the ship for loss by the negligent carriage of the goods, although B. was but an agent; for the legal property by the bill of lading vested in B. in trust for A. This last case contains a review of the English decisions, and, as there was a difference of opinion on the Bench (Mr. Justice Gibson dissent- ing), the point was examined with extraordinary care and ability. See Amos v. Temperley, 8 Mees. & Wels. 798; Ante, §§ 263, 274; Dunlap v. Lambert, 6 Clark & Fin. 600, 626, 627 ; Ante, § 274, and note. 472 AGfENCT. [CH. XY-. chasei- for a breach thereof; for he acted merely as agent of the corporation, and did not contract on behalf of himself personally .1 So, where a note was given by B. to A., " Treasurer of the com- mittee of the surplus fund" of a town, for money loaned by it with the authority of the town, it was held, that the suit was properly brought in the name of the town, and could not be prop- erly brought by A. in his own name, as he had no interest in the note.^ So where a note was given to A., the land agent of a State, in his official capacity, it was held, that the suit ought to be brought in the name of the State, and not of A.^ So, where a note was given payable " to the cashier of the Commercial Bank, or order," it was held, that the bank might properly maintain a suit thereon in its corporate name.* So, where a person sub- scribed an engagement to pay to A. B., or order, all assessments on shares taken by him in a turnpike corporation, it was held, that tjie corporation might inaintain an action thereon, A. B. being their agent, and that the agent, A. B., could not.^ So, a note given to A., " as town treasurer," is not suable in his own name,^ but is suable in the name of the town.'^ The like inter- ' Bowen «. Morris, 2 Taunt. 374 ; Ante, § 164. It must be admitted,' that some of these cases stand upon very nice and critical grounds. The true principle undoubtedly is, that, wherever, taking the whole language of the instrument together, it is to be inferred, that the promise is made, not to the agent personally, but through him to the principal, there the suit should be brought in the name of the principal, and not of the agent. But there cer- tainly is no legal difficulty in making a promise to an agent to pay him money, or to deliver to him goods for the use or benefit of his principal ; and in such a case it should seem, that the agent might maintain a suit in his own name upon such a contract. See ante, §§ 154, 395 ; 2 Liverm. on Agency, 215-225 (ed. 1818). ' The Inhabitants of Garland v. Reynolds, 2 Appleton, 45. But see ante, §394. ^ Irish V. Webster, 6 Greenl. 171. ^ Commercial Bank v. French, 21 Pick. 486. And see Eastern Railroad v. Benedict, 5 Gray, 561 ; Ante, §§ 154, 165, 161, 269, 270, 275. See also' Medway Cotton Manufactory «.. Adams, 10 Mass. 360; Ante, § 269, note; Woodstock Bank v. Downer, 27 Vt. 482. ^ Taunton and South Boston Turnpike v. Whiting, 10 Mass. 327 ; Gilmore V. Pope, 5 Mass. 491. It is very difficult, if not impracticable, to reconcile all the cases upon this subject. Many of them might be reconciled by the doctrine, that either the agent or the principal might sue in such cases. See Dupont v. Mount Pleasant Co., 9 Rich. 269. " [Sed qucere, as to not being suable in his own name.] ' Hinds V. Stone, Brayton, 230. § 395.J EIGHTS AS TO THIBD PERSONS. 473 pretation lias been applied to a note payable to A., "town treas- urer, or his successors in office," ^ and to a note payable to the selectmen of the town of A.^ [But in a later case in the same court, this doctrine was doubted, and it was there held that a promissory note payable to " A. B., cashier," might be sued by A. B. in his own name.^] ' Arlington v. Hinds, D. Chipman, 431. ' Middlebury v. Case, 6 Vt. 166. [' Johnson v. Catlin, 27 Vt. 87. And Bennett, J., saic, " At somewhat of an early day, in the ease of the Town of Arlington v. Hinds, 1 D. Chip. 431, it was held, that where the note was given to Luther Stone, town treasurer, or his successors in office, the action might be maintained on it in the name of the town of Arlington ; and in that case, the position was advanced by the judge who gave the opinion of the court, that, though the action might be maintained in the name of the town, yet it would not follow but what Stone might also have the action in his own name. The principles of that case have been followed in several subsequent cases. The case in Chipman arose under so,mewhat peculiar circumstances, and the court must have been pressed with the necessity of sustaining that action to prevent a failure of justice in that particular case, and the court found it necessary to assume that the law-merchant was not adopted in this state, in order to avoid the effect of the position that, upon commercial paper, the person who appears upon the face of the paper to have the legal interest, must sue ; and that you cannot resort to matter aliunde the note to determine who may sue upon it. But it has long been settled in this state, that the law-merchant was a part of our law, so that it now appears that the very ground upon which the case of Arlington v. Hinds was based, has been long since swept away. If the principles which are applicable to the case of principal and agent could have been rightly applied to the case of Arlington v. Hinds, it might have been sound. In such case it is familiar law, that the action may be brought in the name of the principal from whom the consideration moves, or in the name of the agent with whom the contract was ostensibly made. Though this court have been repeatedly called upon to repudiate the case of Arlington V, Hinds, as being a departure from the principles of the law-merchant, they have hitherto declined ; and subsequent decisions have been made upon the authority of that case, which would seem to be opposed to the current of the cases which have been decided upon the principles of the commercial law. It may be a matter of some importance that there should be a uniformity of decision on commercial questions in the diflferent Stales, and how long our courts will adhere to the authority of the case of Arlington v. Hinds for the ■ sake of preserving uniformity in our decisions, though it mars the symmetry of the commercial law, must depend upon the subsequent adjudications of this court. There may be a difficulty, as the counsel argue, upon the principles of the commercial law, in holding that either the cashier or the bank can maintain an action on this bill, at their own election. But let that be as it may, we think it is clear that this action is well brought. The cases are numerous, where it has been held, in cases of promissory notes and bills of exchange, 474 AGENCY. [CH. XV. § 396. The second class of cases would seem scarcely to re- quire any illustration ; for, as the agent acts in his own name, without disclosing any other principal, it follows, as an irresisti- ble inference, that the other contracting party binds himself per- sonally to the agent. This, indeed, would seem justly to follow from the reciprocity of obligation on the other side ; for (as we have already seen) the agent is in every such case undeniably bound by his personal promise to the other party .^ Hence it is, that if an agent sells the goods of his principal in his own name, and as if he were owner, he is entitled to sue the buyer for the price in his own name, although the principal may also sue.^ [So, if he sells goods on a condition not complied with, he may maintain replevin for the same.^] And, on the other hand, if he buys goods in his own name, as purchaser, he may maintain ac- tion on the contract against the seller, whether it be for a deliv- ery thereof, if wrongfully withheld, or upon any warranty on the same, in the same manner as if he were the only party in interest.* The principle will apply with far greater force, when the agent has an interest in the property, or a lien on it, as we shall more fully see in the succeeding pages.^ § 397. The third class of cases is, where, by the usage of trade, or the general course of business, the agent, although known to be acting as such, is dealt with, as if he were the owner or principal, so that the contract is deemed a personal con- tract with him. In cases of this sort, it seems to be wholly im- material, whether the contract is deemed to be exclusively made that a promise to the agent, naming him, and not his principal, although the word agent, or cashier, be added to his name, is a promise to the agent as an individual, and the addition is simply descriptive of the person."] ' Ante, §§ 266-270, 290, 291; 3 Chitty on Com. &Manuf. 211-214; Ante, § 160; Paley on Agency, by Lloyd, 288, 289; Id. 361, 362; Id. 364-367; Leeds v. The Marine Ins. Co. 6 Wheat. 566 ; Sims v. Bond, 3 B. & Adolph. 393. ' Ante, §§ 290, 291, 293 ; Beebee v. Robert, 12 Wend. 413 ; Bickerton ». Barren, 5 ,M. & Selw. 383. See also Rayner v. Grote, 15 Mees. & Wels. 359 '; Post, § 496, note. ' Tyler v. Freeman, 3 Cush. 261. ■• Ante, §§ 290, 291, 293; Beebee v. Robert, 12 Wend. 413; Bickerton ». Burrell, 5 M. & Selw. 383. See also Rayner v. Grote, 15 Mees. & Wels. 359 ; Post, § 496, note. * 1 Liverm. on Agency, 220 (ed. 1818) ; 8 Chitty on Com. & Manuf. 211 ; Post, § 397. §§ 396-398.] EIGHTS AS TO THIRD PERSONS. 475 with the agent, or whether the real principal, also, has a right as an implied party, to avail himself of the contract.^ The. fourth class of cases.is, where the agent has made a contract, in the sub- ject-matter of which he has a special interest or property, whether he professed at the time to be acting for himself or not. For the most part, the illustrations arising under the third and fourth class- es, embrace mixed considerations, dependent upon the usage of trade and business, and a special interest or property of the agent in the thing contracted for, or the business done. They will there- fore, be conveniently discussed together. It may be laid down, as a general rule, that wherever an agent, although known to be such, has a special property in the subject-matter of the contract, and not a bare custody thereof, or where he has acquired an in- terest in it, or has a lien upon it, he may, in all such cases, sue upon the contract.^ Thus, for example, as we have seen, an auctioneer may maintain an action in his own name, for goods sold by him at public or private auction.^ It will make no dif- ference in the case, that the goods are even sold on the land of the owner, and are known to be his property ; for an auctioneer has a possession, coupled with an interest, in goods which he is employed to sell, and not a bare custody, like a servant or shop- man.* An auctioneer, also, has a special property in the goods to be sold, and a lien for the charges of the sale, and for his com- missions.^ § 398. Upon a similar ground, if an agent is answerable to his principal for the price of the goods sold by him, or for any other debt contracted by or with him in the course of his agency, he will be entitled to sue for the price, or other debt, in his own name.'' Thus, for example, an agent selling under a del credere * Ante, §§ 269, 270, 272-280; Post, §§ 403-412, 418-440. = Atkyns v. Amber, 2 Esp. 493 ; Ante, § 164 ; 1 Liverm. on Agency, 215- 219 (ed. 1818); Joseph ij. Knox, 3 Campb. 320; Williams «. Millington, IH Bl. 81, 84; Paley on Agency, by Lloyd, 361,' 362 ;. Sargent v. Morris, 3 B. & Aid. 276, 280, 281 ; 3 Chitty on Com. & Manuf. 210, 211 ; Leeds v. The Marine Ins. Co. 6 Wheat. 665. » Ante, § 27. * Ante, § 27 ; Williams v. Millington, 1 H. Bl. 81, 84. See also Robinson 1). Rutter, 30 Eng. Law and Eq. 401 ; Coppin v. Walker, 7 Taunt. 237 ; 3 Chitty on Com. & Manuf. 210, 211 ; Coppin v. Craig, 7 Taunt. 243. * Williams v. Millington, 1 H. Bl. 81-86 ; Ante, § 27. « 3 Chitty on Com. & Manuf. 210, 211. 476 AGENCY. [CH. XY. commission, is entitled to sue for the price of the goods sold by him. Indeed, as between himself and the vendee, he is generally- treated as the owner of the goods ; and of course ,he is entitled to the general rights of an owner ; but still he is so, subject to the superior rights of the principal, not incompatible with his own.^ So, if an agent procures a policy of insurance in his own name for his principal, and pays the premium ; and it turns out, in the event, that the policy never attached, or is void from some circumstance, of which he had no knowledge ; he may sue for and recover back in his own name the premium, which he has paid therefor.^ So, if an agent has transferred the money or property of his principal, under circumstances which gave him a right to recover it back, he may do so in his own name, notwith- standing his principal may maintain a like suit therefor ; the agent (as was said by Lord Mansfield) may maintain the suit from the authority of the principal, and the principal may maintain it, as proving it paid by the agent.^ But perhaps, strictly speaking, the agent, acquires such right, because of his responsibility for the money or property to his principal, and the interest which he has in indemnifying himself. Indeed, the proposition may be laid down in broader terms, that, if an agent pays money for his prin- cipal, by mistake or otherwise, which he ought not to have paid, the agent, as well as the principal, may maintain an action to recover it back.* § 399. The cases of contracts made by masters of ships, rel- ative to their repairs and usual employment, and other inci- ' Houghton V. Mathews, 3 Bos. & Pull. 485, 489 ; 3 Chitty on Com. & Manuf. 211 ; Post, §§ 402, 403. 2 Oom V. Bruce, 12 East, 225. See Leeds v. Mar. Ins. Co. 6 Wheat. 565. ' Stevenson v. Mortimer, Cowp. 805 ; Holt v. Ely, 1 Ellis & Blackb. 795 ; 18 Eng. Law and Eq. 422. ■* Post, § 435 ; Stevenson v. Mortimer, Cowper, 806. In this case Lord Mansfield said, " The ground of the nonsuit at the trial was, that this action could not be well maintained by the plaintiffs, who are the owners of the vessel in question, but it ought to have been brought by the master, who actually paid the money. That ground, therefore, makes now the only question before us ; as to which, there is not a particle of doubt. Qui facit per alium facit per se. Where a man pays money by his agent, which ought not to have been paid, 'either the agent or principal may bring an action to recover it back. The agent may, from the authority of the principal ; and the principal may, as proving it to have been paid by his agent." See also Paley on Agency, by Lloyd, 362, and Bickerton v. Burrell, 6 M. & Selw. 383. §§ 398-401. J EIGHTS AS TO THIRD PEESONS. 477 dental contracts, belonging to their office and duties, fall under the like consideration. We have seen that the master of a ship is ordinarily liable on a^l such contracts, made in virtue of his ofi&ce; and there is a reciprocal obligation on the. other party to the master.^ Indeed, it would be an anomaly to hold that the contract is, for the purpose of charging the master, personal on his part ; and, at the same time, tliat there is not, on the other side, a correspondent responsibility to him ; since tlie foundation of the contract, in every such case, must be a mutual and recipro- cal consideration, sufficient to create a mutual and reciprocal obligation. § 400. But the most common illustration of the third class of cases, and that, indeed, which presents the principles upon which it is founded in its clearest form, is that of a factor. In regard to foreign factors, it has been already stated that they are gener- ally treated, not only as principals, in all contracts made with them and by them, but also as exclusive principals (unless other circumstances repel the presumption), whetlaer they are known to be acting for others, or not ; ^ so that exclusive credit is or- dinarily deemed to be given by them and to them ; and they alone, therefore, are ordinarily entitled to maintain actions on such contracts.^ This doctrine is in conformity to the general usage of trade ; and it was, in all probability, originally derived from it, as affi)rding a just exposition of the intentions of all parties, and as being founded in public policy and convenience, ■ and in the safety, if not the necessities, of commerce.* § 401. The same doctrine has been applied with some modi- fications, to the case of domestic factors. The latter are, by the ' Ante, §§ 36, 116, 266-268, 294, 295, 298, 299; Coppin w. Craig, 7 Taunt. 243; 1 Bell, Comm. 422 (4th ed.) ; Id. pp. 523-538 (5th ed.). °- Ante, §§ 268, 290, and the authorities there cited; Post, §§ 423, 448; 1 Bell, Comm. § 209 (4th ed.) ; Id. p. 491 (5th ed.) ; 1 Liverm. on Agency, 226, 227 (ed. 1818) ; Paley on Agency, by Lloyd, 248, 334, 373 ; Addison v. Gan- dasequi, 4 Taunt. 574; Thomson v. Davenport, 9 B". & Cressw. 78. ' Ante, §§ 268, 290 ; Wilson v. Zuluetta, 14 Q. B. 406 ; Post, § 423 ; 1 Liverm. on Agency, 226, 227 (ed. 1818) ; 3 Chitty on Com. & Manuf. 802, 303. See Taintor v. Prendergast, 3 Hill, 72. * Ibid. It seems to have been held in Taintor v. Prendergast, 3 Hill, 72, 73, that the agent is liable equally, whether his principal be a foreigner or not, if he does not disclose his principal, unless exclusive credit has been given to the agent. Ante, § 268 ; Trueman v. Loder, 11 Adolph. & Ellis, 689 ; Kirkpatrick V. Stainer, 22 Wend. 244. 478 AGENCY. [CH. XT. usages of trade, treated as principals, although not as exclusive principals (for the real principal may sue and be sued on the contracts of his factor) ; and this withou,t any distinction, wheth- er, in making the contract they are known to be acting as fac- tors, or not ; whether they act under a del credere commission, or not.i In every contract so made by them, they are entitled to sue, and may be sued, as principals.^ § 401 a. The case of factors, both foreign and domestic, affords an equally striking illustration of the fourth class of cases. Where factors are employed to sell goods, they are understood to be special owners, to be entitled to the management, control, and possession of the goods, and to have full authority to sell them (as indeed they usuallj- do) in their own names.^ Where they are employed to buy goods, similar considerations apply. They become personally liable to pay for them (although their principal may also be liable) ; and they have a right to the possession of them, and a special ownership in them.* In both cases they have also a lien on them, or their proceeds, for their commissions, disbursements, and advances touching them, as well as a lien for their general balance of accounts, subject to the exceptions al- ready stated.^ They may also maintain suits in their own name for trespasses and torts committed on all goods, while in their possession as factors, founded upon their special ownership and rights therein.^ 1 Ante, §§ 34, 110-112, 161, 162, 266, 268, 290, 293; Paley on Agency, by Lloyd, 324, 361 ; Houghton v. Mathews, 3 Bos. & Pull. 485, 489 ; 1 Liverm. on Agency, 226, 227 (ed. 1818) ; Leverick v. Meigs, 1 Cow. 645, 663, 664; 3 Chitty on Com. & Manuf. 201, 202; 2 Bell, Comm. §§ 417, 418 (4th ed.) ; p. 491 (5th ed). '^ Ante, §§ 34, 110-112, 161, 162, 266, 268, 290, 293 ; Paley on Agency, by Lloyd, 361 ; Houghton v. Mathews, 3 Bos. & Pull. 485, 489 ; Sadler v. Leigh, 4 Campb. 195 ; 1 Liverm. on Agency, 215-221 (ed. 1818) ; Id. 226, 227 ; Girard u. Taggart, 5 Serg. & E. 27 ; Smith on Merc. Law, B. 1, ch. 5, § 6, pp. 138, 139 (3d ed. 1843). » Ante, §§ 34, 110-112, 161, 266, 268, 290, 293. * Ante, §§ 39, 110-112, 161, 162, 266, 268, 290, 293 ; 3 Chitty on Com. & Manuf. 210, 211. ° Ante, §§ 34, 372, 373, 376, 377, 379 ; Post, § 407 ; 3 Chitty on Com. & Manuf. 210, 211 ; 2 Bell, Comm. §§ 799-802 (4th ed.) ; Id. B. 114-118 (5th ed.) ; Hudson v. Granger, 5 B. & Aid. 27, 32-34. « Paley on Agency, by Lloyd, 285-288 ; Id. 363-868 ; Williams «. Milling- ton, 1 H. Bl. 81 ; Smith on Merc. Law, 77 (2d ed.) ; Id. B. 1, ch. 6, § 6, pp. 138, 139 (3d ed. 1843) ; 1 Liverm. on Agency, 226, 227 (ed. 1818) ; Post, § 415. §§ 401-403.] RIGHTS AS TO THIRD PERSONS. 479 § 402. But although agents are thus entitled, in a variety of cases, to maintain actions upon contracts made for, or on behalf of, their principals, whether known or unknown ; yet the right thus conferred upon them is not unlimited, either in regard to their principals, or in regard to the other contracting parties. Subject to the exceptions, which will be presently stated,^ this right of agents is subordinate to, and controllable by, their prin- cipals ; and in favor of the other contracting parties, this right is also modified, . so as not to work any injustice or wrong to them.^ Both parts of this proposition may require some illus- tration ; and then the exceptions will naturally follow. § 403. In the first place, then, the right of agents is subordi- nate to, and controllable by, their principals. ^ Wherever the principal, as well as the agent, has a right to maintain a suit upon any contract, made by the latter, he may generally supersede the right of the agent to sue, by suing in his own name.* So, the principal may, by his own intervention, intercept, suspend, or extinguish the right of the agent under the contract ; as, if he makes other arrangements with the other contracting party,, or waives his claims under it, or receives payment thereof, or in any other manner discharges it.^ This, indee'd, results from the general ' Post, §§ 407-410. ' Smith on Merc. Law, 77 (2d ed.) ; Id. B. 1, ch. 5, § 6, pp. 138, 139 (3d ed. 1843) ; Atkyns v. Amber, 2 Esp. 493 ; Ante, §§ 160, 161, 269, 270. ' Post, §§ 410, 429. * Sadler v. Leigh, 4 Campb. 194 ; 1 Liverm. on Agency, 221 (ed. 1818) ; Paley on Agency, 285-288 ; Id. 326 ; Id. 363-867 ; Id. Ill, note (3) ; Taintor B. Prendergast, 3 Hill, 72, 73 ; Girard v. Taggart, 6 Serg. & R. 27. In the case of Sadler v. Leigh, the contract was made with a factor, for the pur- chase of goods for his principal. The latter afterwards became bankrupt. Lord EUenborough held, that the factor was a good petitioning creditor, under the bankrupt laws, for the debt. But, it appearing, that after the purchase, there had been a communication between the principal and the purchaser, whereby the former agreed to consider the latter as his debtor, and he had taken steps for recovering the debt directly from the purchaser, Lord Ellen- borough held, that the factor's right was gone. He said, "This last fact, I think, is fatal to the petitioning creditor's debt. After the intervention of the principal, the right of the factor to sue was gone. The debt was then due to the principal, in the same manner, as if the sale had been made personally by him in the first instance." Ante, 160, 161, 269, 270. » See Coppin v. Walker, 7 Taunt. 237 ; Coppin v. Craig, 7 Taunt. 243 ; Paley on Agency, by Lloyd, 362 ; Morris v. Cleasby, 1 M. & Selw. 576 ; 1 Liverm. on Agency, 226-228 (ed. 1818) ;Walker v. Russ, 2 Wash. Cir. 283 ; 3 Chitty on Com. & Manuf. 201-203. 480 AGENCY. [CH. XV. principle of law, that every man may waive rights, or extinguish rights, the benefit whereof exclusively belongs to himself; and, that, whatever rights are acquired by an agent are acquired for his principal. " Quicquid acquiritur servo, acquiritur domino.^ Quilibet potest renunciare juri, pro se introducto." ^ Of course, this doctrine is applicable only to cases of pure agency, where the agent has no lien or other interest, or superior right in the prop- erty. If he has any, to the extent of such lien, and other interest and right, he is entitled to protection against the principal.^ § 404. In the next place, in respect to the rights of the other party, with whom the agent has contracted. If the suit is brought in the name of the agent, instead of the principal, upon any contract knowingly made by the former for the latter, the other contracting party will generally be entitled to make the same defence, and establish the same claims against the agent, that he would be entitled to, if the suit were brought in the name of the principal.* Thus, for example, if a sale of goods is made by an auctioneer, or other agent, notoriously for his principal, the. purchaser may, if he has no notice of any claims or demands of the agent upon the principal, make payment to the principal ; and his payment will be available in a suit brought by the auc- tioneer, or other agent, notwithstanding any latent claims or liens, which the auctioneer or agent may have ; for it is his duty in such a case to make his claims known to the purchaser, other- wise the latter may fairly presume, that a payment to the prin- cipal will be a just fulfilment of his contract.* So, in the like case, if the purchaser has a set-off against the principal, and has bought in reference to that claim, he may set off the claim in a suit brought by the agent, with the same effect, as if it were brought by the principal.^ So, if the purchaser has purchased of ' 15 Viner, Abridg. 327 ; Co. Litt. 117 a. 2 2 Inst. 183 ; Wingate, Maxims, p. 483. = Ante, §§ 371, 372. " AtkynsB. Amber, 2 Esp. 493 ; 3 Chitty on Com. & Manuf. 201-203, 211; Smith on Merc. Law, 77 (2d ed.) ; Id. pp. 136, 136, 139 (3d ed. 1843) ; Leeds v. The Marine Ins. Co. 6 Wheat. 566, 570, 671 ; Taintor v. Prendergast, 3 Hill, 72 ; Post, §§ 419, 420. ' Coppin V. Walker, 7 Taunt. 237 ; Coppin v. Craig, 7 Taunt. 243 ; 3 Chitty on Com. & Manuf. 211. " Coppin V. Walker, 7 Taunt. 237 ; Coppin v. Craig, 7 Taunt. 243 ; 2 Liverm. on Agency, 89, 90 (ed. 1818) ; Paley on Agency, by Lloyd, 326, 327; §§ 403-406.] EIGHTS AS TO THIRD PERSONS. 481 the agent upon the just belief, authorized by the facts of the case, that he is the real principal, he may avail himself of any set-off, which he has against the agent, as well as the principal, in any suit brought by the latter upon the contract ; for, in such a case, he will be entitled to avail himself of the like set-off, if the suit is in the name of the principal.^ § 405. The same doctrine applies to other matters of defence. Thus, if a suit is brought by an agent upon a negotiable note, given to him for the benefit of his principal, the maker, or other party sued, may avail himself of the same defects of title, such as fraud, or want of consideration, as if the principal had brought the suit in his own name ; ^ for, although, in such a case, the agent is entitled to sue, yet, if he claims no beneficial interest in the note, and has acquired no lien on it for advances or other- wise, he is treated as a naked holder, asserting the mere rights of his principal, and is affected by the same equities as the latter.^ § 406. The doctrine has been carried a step farther. For, if an auctioneer, or other agent, should avowedly contract with another for the purchase of property for a third person, as the agent of the latter [who is named in the contract as principal] , when in fact he is himself the real principal, he will not only not be permitted to escape thereby from any defence to a suit, brought in his own name upon the contract ; but he will not be allowed to maintain any suit in his own name on the contract as prin- cipal, without giving notice, before bringing the suit, of his real character in the transaction ; for, otherwise, the vendor may be taken by surprise, and may be prevented from taking steps to Stewart v. Aberdein, 4 Mees. & Wels. 218, 219, 228; 3 Chitty on Com. & Manuf. 201-203; Leeds v. Marine Ins. Co. 6 Wheat. 666, 670. ■ Paley on Agency, 287-289, 326-328 and note, 329, 330 ; George v. Clagett, 7 T. K. 359 ; Rabone v. Williams, 7 T. R. 360, note (a) ; Stracey v. Deey, 7 T. R. 361, note; Baring v. Come, 2 B. & Aid. 137. See also Lime Eook Bank v. Plimpton, 17 Pick^'l69 ; Leeds v. Marine Ins. Co. 6 Wheat. 565, 670. See 2 Smith's Select^ases, 77 and note, 79, 80 ; Warner v. Mc- Kay, 1 Mees. & Wels. 596 ; Post, § 419. ^ Ante, §§ 227, 228 ; Solomons v. Bank of England, 13 East, 136, n. ; De la Chaumette v. Bank of England, 9 B. & Cressw. 208 ; s. c. 2 B. & Adolph. 386; Paley on Agency, by Lloyd, 238, 285-287, 326, 363, note (3), 36^367. ' Ibid. AGENCY. 31 482 AGENCY. [CH. XT. avoid the suit, which he might have taken, if he ■ had been ap- prised of all the facts. 1 [§ 406 a. On the other hand, it has been expressly adjudged, that a person who contracts as agent for an unknown and un- named principal, may himself sue as principal, if he was in fact such, unless it appear that the other party relied on his character ' See Humble v. Hunter, 12 Q. B. 359; Bickerton v. Burrell, 5 M. & Selw. 383. On this occasion Lord Ellenborough said, "This is an action founded upon a contract made by the plaintiff in the character of agent to an individual, named by him as principal ; and the question is upon the plaintiff's title to sue. In the ordinary transactions of commerce, a man may sell or pur- chase in his own name ; and yet it does not follow that the contract is his ; but the transaction is open to explanation, and others, who do not appear as parties to the contract, are frequently disclosed, and step in to demand the benefit of it. But where a man assigns to himself the character of agent to another, whom he names, I am not aware that the law will permit him to shift his situation and de- clare himself the principal, and the other to be a mere creature of straw. That, I believe, has never yet been attempted. Now, on the face of this agreement, it is stated that the plaintiff made the purchase, paid the deposit, and agreed to comply with the conditions of sale for Richardson, and in the mere character of agent. Is not this account of himself to be taken fortissime contra proferentem ; that is, that he was really treating in the character which he assigned to himself at the time of the purchase ? And has not the defendant, with whom the plain- tiff dealt as agent, a right still to consider him as such, notwithstanding he would now sue in the character of principal ? Supposing that he might, under a different state of circumstances, have entitled himself to sue in his own name ; surely the defendant ought to have had notice of the plaintiff's real situation before he is subjected to an action at the plaintiff's suit, and while it was open to him to make a tender. It was proposed to call Mrs. Richardson to prove that she had no interest in the transaction ; and a reason was assigned why her name appeared in it, namely, that the purchase was intended for her benefit. Admitting this to ^be so, yet the question still occurs, whether a man who has dealt with another in the character of agent, is at liberty to retract that char- acter without notice, and to turn round and sue in the character of principal. As to which, it appears to me, that the defendant ought at least to have an opportunity of knowing, by means of a specific notice, before he is dragged into a court of justice, the real situation in which the plaintiff claims to stand, in order that he niay judge how to act. In the present case, non constat but that the defendant would have tendered the money. It was the plaintiff's fault originally, that he misled the defendant by assuming a situation, which did not belong to him ; and therefore he was bound to undeceive the defendant before bringing an action. This seems to follow from a consideration of what the common principles of justice demand, which accord with the cases decided upon this subject. I recognize the authority of the Duke of Norfolk v. Worthy, which was merely the case of an undisclosed principal at the time of sale. Dr. Bethune's case is of like import ; and it has been settled in many cases that a §§ 406 a, 407.] rights as to third persons. 483 as being only an agent, and would not have contracted with him as principal, if he had known him to be such.i] § 407. Such is the general rule applicable to this subject; principal, when disclosed, may step in and exercise his own rights. But it is wholly without precedent, I believe, and as it seems to me, contrary to justice, that a person who has exhibited himself as agent for another should at once throw off that character and put himself forward as principal, without any com- munication or notice to the other party." [But see Rayner v. Grote, 15 Mees. & Wels. 359. In this case the plaintiff made a written contract for the sale of goods, in which he describes himself as the agent of A., and the buyer ac- cepted and paid the price of a portion of the goods, and then had notice that the plaintiff was himself the real principal, and not the agent of A. It was • decided that the plaintiff might sue in his own name for the non-acceptance of and non-payment for the residue of the goods. In delivering the judgment of the court. Baron Alderson considered the case of Biokerton v. Burrell. " And it may be observed," he said, " that this case is really distinguishable from Biokerton v. Burrell, on the very ground on which that case was deci- ded ; for here, at all events, before action brought and trial had, the defend- ants knew that the plaintiff was the principal in the transaction. Perhaps it may be doubted whether that case was well decided on such a distinction, as it may fairly be argued that it would have been quite sufficient to prevent any possible inconvenience or injustice, and more in accordance with former author- ities, if the court had held that a party named as agent under such circum- stances as existed in that case, was entitled, on showing himself to be the real principal, to maintain the action, the defendant being, however, allowed to make any defence to which he could show himself to be entitled, either as against the plaintiff or as against the person named as principal by the plaintiff in the contract. It is not, however, necessary for us, in the present case, to question the authority of that decision."] ' [Schmalz v. Avery, 3 Eng. Law and Eq. 391; 16 Q. B. 655, — Patte- son, J., said, "This was an action of assumpsit on a charter-party, not under seal, against the defendant, a ship-owner, for not taking the cargo on board ac- cording to the charter-party. The question raised on the plea of non-assumpsit is, whether the action will lie at the suit of the present plaintiff. The charter- party, in terms, states that it is made by Schmalz & Co., the plaintiffs, as agents for the freighter. It then states the terms of the contract, and concludes with these words : ' This charter-party being concluded on behalf of another party, it is agreed that all responsibility on the part of Schmalz & Co. ceases as soon as the cargo is shipped.' The declaration treats the charter-party as made between the plaintiff and the defendant, without mentioning the character of the plaintiff as agent, and without any reference to the concluding clause, thereby treating the plaintiff as principal in the contract. At the trial, it was proved, that the plaintiff was, in point of fact, the real freighter. No objection was taken to the admissibility of the evidence by which that fact was estab- lished ; but at the close of the plaintiff's case it was objected, that he was concluded by the terms of the charter-party, and fixed with the character of agent ; so that he could sue only in that character, and consequently that there 484 AGENCY. [CH. XT. but, as has been already suggested, it is liable to exceptions, founded upon the same considerations of reciprocal equity and justice, as the general rule itself.^ The rule, properly and pri- was a variance between the declaration and the proof. A verdict was found for the defendant, with liberty to enter a verdict for the plaintiff for 51. 10s., if the court should be of opinion that he was entitled to sue as principal, not- withstanding the terms of the charter-party ; and a rule nisi was obtained so to enter it. We are of opinion that the rule must be made absolute. It is con- ceded, that if there had been a third party who was the real freighter, such third party might have sued, although his name was not disclosed in the charter- party ; but the question is, whether the plaintiff can fill both characters of agent and principal, or rather, whether he can repudiate that of agent and adopt that of principal, both characters being referred to in the charter-party, but the name of the principal not being therein mentioned. The cases principally relied on for the defendant were Bickerton v. Burrell, 5 M. & Selw. 388, and Rayner v. Grote, 15 Mees. & Wels. 359, in both which cases the supposed principal was named in the instrument of contract; also the case of Humble v. Hunter, 12 Q. B. 310 ; 12 Jur. 1021. In the case of Bickerton v. Burrell, the plaintiff, on the face of the contract, professed to enter into it as agent for C. Richardson. At the trial, C. Richardson was called to prove that her name was used without her knowledge, and that she had nothing to do with the contract. Lord Ellen- borough refused to receive the evidence, and nonsuited the plaintiff. A rule nisi to set aside the nonsuit was obtained, but, upon argument, was discharged, on the ground that a person who has exhibited himself as agent for another, whom he names, cannot at once throw off that character, and put himself forward as principal, without any communication or notice to the other party. All the judges relied on the want of such notice, which seems to have been the chief ground of the decision ; for they considered that the defendant was thereby placed in great difficulty, as he had contracted, in point of law, with Richard- son, and not with the plaintiff, and might have no means of ascertaining, or even conjecturing, that she was not the real party. The soundness of that ground of decision was somewhat doubted in the late case of Rayner v. Grote. There the plaintiff contracted as agent for Johnson, but was, in truth, himself the principal ; he sued the defendant for not accepting and paying for the goods. The defendant had accepted and paid for a great part of the goods sold, and knew, before he refused the residue, that the plaintiff was the real principal ; and so the case was distinguishable from that of Bickerton v. Bur- rell. upon the very ground on which that decision proceeded, and the plaintiff was held to be entitled to sue. The case of Humble u. Hunter, was an action by Grace Humble, on a charter-party signed by her sou, J. C. Humble, in which he was described as the ■ owner of the good ship or vessel called The Ann.' There the son was called at the trial, and, after objection taken to his admissibility, proved that he executed as agent for the plaintiff, and the plain- tiff had a verdict. The court, however, granted a new trial, on the ground Ante, § 402. § 407.] EIGHTS AS TO THIRD PERSONS. 485 marily, has its due operation, where the agent, entering into the contract, is the mere representative of the principal, and has ac- quired no interest, or lien, or other claim under it, in virtue of that it was not competent for a third party to come in and claim to be the prin- cipal, and so contradict the express statement of the contract itself. The case turned upon the form of the contract ; for it was conceded, that if the words 'owner of the good ship,' &c., had been omitted, the plaintiff might have sued, on showing that she was the real owner, and that the son was her agent only. Such evidence would not have contradicted the contract, but would only have let in a third party who was really interested, in conformity with the current of authorities in cases of contracts executed by agents, and in their own names. The case of Jenkins v. Hutchinson, 13 Jur. 763, was also cited for the defend- ant, but it proceeded on a different ground, and is not applicable to the present question. There the defendant was sought to be charged as principal on a charter-party executed by him, on the face of it, as agent for Barnes ; he had, in truth, no authority from Barnes, nor was he himself interested at all ; and the court held, that he could not be sued as principal without showing that he really was so. A distinction was taken on the argument in the present case, by the defendant's counsel, between, an executed and an executory contract ; and it was said, that whatever might be the rule in the former class of cases, where the defendant has received the benefit of the contract, and it is probably immaterial to him whom he pays, yet that in the latter class the defendant can- not be properly held answerable to B., having expressly contracted with A. ; and a passage in the judgment of the court, in the case of Kayner v. Grote, was much relied on, which is this : ' If, indeed, the contract had been wholly unperformed, and one which the plaintiff, by merely proving himself to be the real principal, was seeking to enforce, the question might admit of some doubt. In many cases, such as, for instance, the case of contracts, in which the skill or solvency of the person who is named as the principal may reasonably be con- sidered as a material ingredient in the contract, it is clear that the agent cannot then show himself to be the real principal, and sue in his own name ; and it may be fairly urged that this, in all executory contracts, if wholly unper- formed, or if partly performed without the knowledge of who is the real princi- pal, may be the general rule.' With this passage we entirely agree ; but it is plain that it is applicable only to cases where the supposed principal is named in the contract ; if he be not named, it is impossible that the other party can have been in any way induced to enter into the contract by any of the reasons suggested. In the present case, the names of the supposed freighters not being inserted, no inducement to enter into the contract, from the supposed solvency of the freighters, can be surmised. Any one who could prove him- self to have been the real freighter and principal, whether solvent or not, might most unquestionably have been sued on this charter-party. The defend- ant cannot have been in any way prejudiced in respect of any supposed reliance on the solvency of the freighter, since the freighter is admitted to have been unknown to him, and he did not think it necessary to inquire who he was. It is, indeed, possible that he may have been contented to take any freighter and principal, provided it was not the present plaintifi'; and he may have relied on 486 AGENCY. [CH. XT. his agency ; for, if he has acquired any such interest, hen, or other claim, then, to the extent thereof, he is entitled to protec- tion, as well against the principal, as against the other contract- ing party.i Thus, for example, a factor or other agent has a lien on the goods intrusted to him for sale for his commissions and advances, and, when he has sold the goods, this lien will attach upon the price in the hands of the purchaser ; and to this extent the terms of the charter-party, indicating that the plaintiff was an agent only, being willing to accept of any one else, be he who he might, as principal. After all, therefore, the question is reduced to this, whether we are to assume that the defendant did so rely on the character of the plaintiff as agent only, and would not have contracted with him as principal if he had known him so to be ; and are to lay it down as a broad rule, that a person contracting as agent for an unknown and unnamed principal, is precluded from saying, ' I am myself that principal.' Doubtless, his saying so does in some measure contra- dict the written contract, especially the concluding clause, which says, ' This charter-party being concluded on behalf of another party,' &c., for there was no such other party. It may be that the plaintiff entered into the charter-party for some other party, who had not absolutely authorized him to do so, and after- wards .declined taking it ; or it may be that he intended originally to be the principal. In either case the charter-party would be, strictly speaking, contra- dicted ; yet the defendant does not appear to be prejudiced, for as he was re- gardless who the real freighter was, it should seem that he trusted for his freight to his lien on the cargo. But there is no contradiction of a charter- party, if the plaintiff can be considered as filling two characters ; namely, those of agent and principal. A man cannot, in strict propriety of speech, be said to be an agent to himself; yet, in a contract of this description, we see no absurdity in saying, that he might fill both characters — that he might contract as agent for the freighter, whoever that freighter might turn out to be, and might still adopt that character of freighter himself if he chose. There is noth- ing in the argument that the plaintiff's responsibility is expressly made to cease ' as soon as the cargo is shipped,' for that limitation plainly applies only to his character as agent, and, being real principal, his responsibility would unques- tionably continue after the cargo was shipped. Upon the whole, we are of opinion, that this rule must be made absolute."] » 3 Chitty on Com. & Manuf. 211 ; Post, § 424 ; Smith on Merc. Law, 77 (2d ed.) ; Id. pp. 135, 136, 139 (3d ed. 1848) ; Drinkwater v. Goodwin, Cowp. 251, 255 ; 1 Liverm. on Agency, 217-219, 226, 285-288, 336 (ed. 1818) ; Id. 364-367 ; Morris v. Cleasby, 1 M. & Sclw. 676 ; Hudson v. Granger, 5 B. & Aid. 27, 32-34. If he is an agent acting under a del credere commission, he has an undoubted right to sue, so as to protect himself from liability under his guaranty. And the principal cannot displace his rights, without, at the same time, waiving the guaranty. See 1 Liverm. on Agency, 226, 227 (ed. 1818) ; Schrimshire v. Alderton, 2 Str. 1183 ; Houghton v. Mathews, 3 Bos. & Pull. 489 ; Morris v. Cleasby, 1 M. & Selw. 576 ; Paley on Agency, by Lloyd, 285- 287, 364-366. § 407.] EIGHTS AS TO THIRD PERSONS. 487 the factor, or other agent, may insist upon payment from the pur- chaser to himself, in opposition to the claims of the principal, and also of the purchaser against the principal.^ But, to entitle the factor, or other agent, in such a case, to this privilege, he must give notice thereof to the purchaser, before the latter has made payment to the principal; or, if the purchaser insists upon" a set-off against the principal before such right of set-off ' 3 Chitty on Com. & Manuf. 211 ; Ante, §§ 34, 372-379, 401 ; Post, § 424 ; Smith on Merc. Law, 77 (2d ed) ; Id. B. 1, ch. 6, § 6, p. 139 (3d ed. 1843) ; Drinkwater v. Goodwin, Cowp. 251, 256 ; Paley on Agency, by Lloyd, 285- 287; Id. 326 ; Id. 364-367 ; Hudson v. Granger, 5 B. & Aid. 27, 32-34. Lord Mansfield, in delivering the opinion of the court, in the case of Drinkwater v. Goodwin, Cowp. 251, 265, said, " The maxim of law, which says, that it shall not be in the power of any man, by his election, to vary the rights of two other contending parties, is a very wise maxim, as well as a very fortunate one for the parties who are so disputing ; because by giving notice to such person to hold his hand, and offering him an indemnity, he renders himself liable to the true owner, if after such notice he takes upon himself to decide the right. And, therefore, though the purchaser of goods from a factor has a right to pay him the money, and be discharged ; yet, when the principal and factor have a dispute, the buyer, with notice of such dispute, has no right to prejudice the ■ title of the principal. This case, therefore, is in the nature of a bill of inter- pleader. The defendant is the stakeholder, the assignees and Jeffries are contending, and the court is to decide. Jeffries claims the money, as having a lien on it, and the assignees claim it, as standing in the place of the bankrupt. Jeffries claims it, as having a lien. To consider the case, therefore, first, upon the general question, we think that a factor who receives cloths, and is author- ized to sell them in his own name, but makes the buyer debtor to himself; though he is nbt answerable for the debts, yet he has a right to receive the money. His receipt is a discharge to the buyer, and he has a right to bring an action against him to compel the payment ; and it would be no defence for the buyer in that action to say, that, as between him and the principal, he (the buyer) ought to have that money, because the principal is indebted to him in more than that sum ; for the principal himself can never say that, but where the factor has nothing due to him. There is no case in law or equity, where a factor, having money due to him to the amount of the debt in dispute, was ever prevented from taking money for cloths in his hands." From the language of the court in' this case, it has been inferred, that the agent cannot maintain a suit of this' sort without first giving, or offering to give, an indemnity to the other contracting party. It may, perhaps, deserve consideration, whether this is absolutely indispensable ; since the factor, or agent, by his contract, acquires a right to sue, as the primary contracting party. An indemnity is, without doubt, ordinarily tendered ; and, if not offered, the case may properly be deemed a case for a bill of interpleader in equity. See Paley on Agency, by Lloyd, 364, 365 ; Post, § 409. 488 AGENCT. [CH. XV. has attached to the transaction.^ In short, the purchaser is entitled to protection, then, and then only, when he has no notice of the claim of the factor, or other agent, and has acted in good faith, and has acquired rights by the transaction, superior to, and consistent with, those of the factor or agent. A fortiori, this "principle will apply, where the purchaser is guilty of a gross con- cealment of his claim upon the principal, which has, in fact, operated as a fraud upon the factor or other agent.^ § 408. It is upon this same grovmd, that, when a factor, or other agent, has a lien for advances, or otherwise, to the full ex- tent of the price or value of the goods of his principal, sold by him, he is entitled to receive payment of the proceeds from the purchaser, not only in opposition to his principal, but in opposi- tion to his assignees, in case of his bankruptcy ; ^ for, although the bankruptcy of the principal operates as a revocation of the authority of tlie factor, or other agent, yet it cannot operate to defeat or destroy his lien.* In truth, in such a case, the factor, or other agent, has a complete power to dispose of the whole of such proceeds as he may please, as his own property, against the principal and his assignees. Therefore, if he is indebted to the pur- chaser of the goods in an equivalent amount, he may set off the one debt against the other, with the assent of the purchaser, and it will be a complete payment and extinguishment of the price, so as to bar any action therefor, by the principal or his assignees.^ § 409. Prom what has been already said, it follows, as a natu- ral consequence, that if the purchaser of goods from a factor, or other agent, who has a lien thereon, should, after notice thereof by the factor, or other agent, pay over the money to the princi- pal, he will, nevertheless, be liable to the factor, or other agent, for the same, and the payment will be no defence in an action brought therefor against him. In some of the authorities the qualification is added, that the purchaser should not only have * Drinkwater v. Goodwin, Cowp. 251, 266 ; Coppin v. Walker, 7 Taunt. 237 ; Coppin V. Craig, 7 Taunt. 243; Atkyns v. Amber, 2 Esp. 493; 3 Chitty on Com. & Manuf. 211 ; Paley on Agency, by Lloyd, 326, 864, 365. = Atkyns v. Amber, 2 Esp. 493 ; 1 Liverm. on Agency. 217-219 (ed. 1818) ; Paley on Agency, by Lloyd, 326, 364, 365. ' Hudson V. Granger, 6 B. & Aid. 27, 32-34; Ante, § 407. * Ibid. ; Ante, § 349 ; Post, 482, 483. * Hudson V. Granger, 6 B. & Aid. 27, 32-34; Paley on Agency, by Lloyd, 285-288 ; Ante, § 407 ; Post, § 424. §§ 407-411.J RIGHTS AS TO THIRD PERSONS. 489 notice, but should have an indemnity, or offer of indemnity, from the factor, or other agent, to protect him against a suit by the principal.^ But it seems at least a questionable point, whether there is any principle of law, which positively requires such an indemnity, or offer of indemnity .^ § 410. It also follows, from the premises, that, subject only to these special rights of the factor, or other agent, the principal may, in all cases, assert his own general rights over every con- tract of purchase and sale, made on his behalf in the course of the agency.^ Hence he may recover from the purchaser of goods, under a sale made by his agent, the residue of the price, deduct- ing the entire claim of his factor, or other agent.* So, if he ex- tinguishes or satisfies the entire claim of his factor, or other agent, his right to recover the whole price is unquestionable, and cannot be resisted by the other contracting party, unless upon equities, which attach to the transaction against the principal, or the agent, or against both. Payments, also, made by the purchaser, will, subject to the like exceptions, op'erate as an ex- tinguishment, 'pro tanto, of the debt, as indeed has been already suggested.^ § 411. Similar principles apply to matters of defence by an agent, who is sued upon any contract upon which he becomes personally responsible, as well as his principal. Thus, for exam- ple, if a factor is employed to buy goods, and he purchases them in his own name, not disclosing any other principal, and he has in his own right a set-off against the seller, he may avail himself of it in a suit brought against him by the seller.^ So, if he sells goods under the like circumstances, he may set off the price of the goods against a debt, personally due from himself to the pur- chaser, at least if the principal does not interpose against it.'^ ' Paley on Agency, by Lloyd, 365, 866 ; Drinkwater v. Goodwin, Cowp. 251. * Ibid. But see ante, § 407, note. ^ Ante, §§ 402, 403. * Ante, § 403 ; Huntington v. Knox, 7 Gush. 374. ' Ante, § 407. ' ' This seems to be a natural result from the reciprocal right of the buyer, in such a case, to set off a debt due to him from the factor, who does not disclose any principal. Paley on Agency, by Lloyd, 326, 327 ; Ante, § 404. ' Paley on Agency, by Lloyd, 112, note ; Id. 286, 287 ; 1 Liverm. on Agency, 226-282 (ed. 1818) ; Morris v. Cleasby, 1 M. & Selw. 576, 679. See Young 13. White, 7 Beav. 506. 490 AGENCY. [CH. XT. § 412. In respect to the rights of agents to maintain actions upon contracts made personally with them, there is another ex- ception, founded upon motives of public policy, which should here be noticed. We have already seen that public agents are not ordinarily personally liable upon any contracts made by them, in their official character or otherwise, for or on behalf of the government.^ A reciprocity exists upon the like contracts in favor of the other party. As public agents are not ordinarily suable, so they cannot ordinarily sue thereon. Thus, for exam- ple, where a naval officer shipped seamen for the public service on board of a public ship, and took a contract from a surety for their rendering themselves on board at the proper time ; it was held, that the government only, and not the officer, could sue on the contract.^ So, where a bill of exchange was indorsed to the Treasurer of the United States, it was held, that' it was compe- tent for the United States, in their own name, to sue upon such indorsement, as having the sole interest in the property.^ On the other hand, if a "public agent should personally bind himself (as he may) by a contract for the benefit of the government, and thereby become personally liable to the other contracting party thereon, there he would have a reciprocal right to hold such other party personally liable to him on the same contract, for any breach thereof.* § 413. We may close this part of our subject by remarking, that although an agent (known to be such) is ordinarily entitled to receive payment of any debt, due to his principal, in the course of his agency, wherever that right results from the usage of trade, or from an express agreement, or from an implied authority, re- sulting from the course of dealing between the parties ; yet, we are not to understand, that the agent thereby acquires any right to receive payment, except in the ordinary modes of business.^ He has no right to change the security of his principal for the debt, or to make himself the debtor to the principal for the like amount, in lieu of the person who owes the debt, without the ' Ante, §§ 802-307. ^ Bainbridge o. Downie, 6 Mass. 253. = United States v. Dugan, 3 Wheat. 172, 180. * Ante, §§ 806, 898. Ante, §§ 98, 103, 109, 181, 216 ; Post, §§ 429, 430 ; Thompson on Bills of Exchange, pp. 370-873 (2d ed. 1836) §§ 412-414.] BIGHTS AS TO THIRD PERSONS. 491 consent of the principal, express or implied to that effect. Thus, for example, if an agent has authority to receive for his principal a debt due from a third person to him, and the agent owes the like amount, or a greater, to such third person, he has no right to substitute himself as the debtor to his principal giving him credit for the amount, or to set off the debt, due by him to such third person, against the debt due by the latter to his principal. But there may be a usage of trade, or a particular dealing be- tween the principal and agent, which would justify such a set-off. And, indeed, it is said to be a common usage between insurance brokers, and underwriters upon policies, thus to set off losses on policies ; and for the broker then to charge himself with the amount of the losses, and to give credit to his principal therefor. ^ § 414. Let us now proceed to the second branch of our in- quiry : In what cases agents acquire rights against third persons founded upon the torts of the latter, in the course of their agency. We have already had occasion to remark, that factors and other agents, in virtue of their possession of the property of their principals, are entitled to maintain actions of trespass and trover against third persons for any torts or injuries, affecting that possession.^ ' Stewart v. Aberdien, 4 Mees. & Wels. 211, 228. On this occasion, Lord Abinger is reported to have said, "It must not be considered, that, by this decision, the court means to overrule any case, deciding, that, where a principal employs an agent to receive money, and pay it over to him, the agent does not thereby acquire any authority to pay a demand of his own upon the debtor, by a set-oif in account with him. But the court is of opinion, that, where an insurance broker, or other mercantile agent, has been erpployed to receive money for another, in the general course of his business, and where the known general course of business is, for the agent to keep a running account with the principal, and to crfedit him with sums, which he may have received by credits, in account with the debtors, with whom he also keeps running accounts, and not merely with moneys actually received, the rule laid down in those cases cannot properly be applied, but it must be understood, that, where an account is bond fide settled according to that known usage, the original debtor is discharged, and the agent becomes the debtor, according to the meaning and intention, and with the authority, of the principal." There is some mistake in the language attributed to Lord Abinger, in the first sentence above quoted, and he probably intended to state the reverse case from that which the language imports. I have given, in the text, what I presume was his real meaning. See ante, §§ 98, 99, 103, 181 ; Barker «. Greenwood, 2 Younge & Coll. 415 ; Morris ». Cleasby, 1 M. & Selw. 576, 579. ^ Paley on Agency, by Lloyd, 363 ; Solomons v. Bank of England, 13 East, 492 AGENCY. ■ [CH. XVI. § 415. So, if an agent is induced, by the fraud, deceit, or mis- representation of a third person, to purcliase goods for liis prin- cipal, or to sell goods for his principal, and thereby he sustains a personal loss, he will be entitled to maintain a suit against such third person for such wrongful act or deceit.^ Thus, for example, if a factor should buy goods for his principal, which were falsely and fraudulently represented by the seller to be of a particular quality, or growth, or manufacture, which alone he was author- ized to buy for his principal, and the principal should refuse to receive them, or the factor should be otherwise injured thereby, he would be entitled to a full recompense from the seller for tort.^ § 416. But, except in cases of this sort, or in cases of a kin- dred nature, the remedies in favor of agents against third persons for mere torts seem to be circumscribed within very limited boundaries. We may, therefore, dismiss this part of the subject with the following brief and general summary of the whole doc- trine ; that the remedy of agents for mere torts is confined to cases where their right of possession is injuriously invaded, or where they incur a personal responsibility, or loss, or damage in consequence of the tort. CHAPTER XVI. EIGHTS OP PEINCIPALS AGAINST THIRD PERSONS. [* § 41?. Eights of principals against third parties divisible into two sorts. 418. Principal entitled against third parties to all the benefits of the authorized acts of his agent. 419. But he must take the contracts of his agent with all their attendant burdens. 420. 421. And he is entitled to same remedies against third persons in respect to the contracts of his agent, as if they were made with him personally. 135,110*6; De la Chaumette ». Bank of England, 9 B. & Cressw. 208; "Wil- liams V. MillingtoB, 1 H. Bl. 81. See Joseph v. Knox, 3 Campb. S20; Smith on Merc. Law, 77 (2d ed.) ; Id. B. 1, ch. 5, § 6, p. 139 (od ed. 1848) ; Bur- ton «. Hughes, 2 Bing. 173 ; Booth ». Wilson, 1 B. & Aid. 59 ; Story on Bailm. §§ 93, 152. ' Ante, § 401. ^ See ante, 201, 398, 402. §§ 415-418.] PRINCIPALS AGAINST THIRD PERSONS. 493 - 422. Exceptions to this doctrine; First, case of instrument under seal, exclusively made between agent and third person. 423. Case of exclusive credit given hy and to agent. 424. Case of agent having lien upon property or proceeds equal to or exceeding value thereof. 425-428. Differences between our law and Roman law. 429, 430. Rights of principals against third persons in relation to payments made to agents. 431. Any mode of payment by an agent accepted as absolute payment by the other contracting partj- discharges principal. 432. Cases where the agent has a right to recover the amount from his principal, as if it had been actually paid by him. 433. 434. Cases in which the doctrine is carried further. 435. Cases in which the principal may recover money paid by agent. 436. Third persons liable to principal for their torts, and where agent is party to the tort, agent and third party liable jointly and severally. 437. 438. Illustrations of the foregoing. 439. In many cases of an illegal conversion of property by a third person, as well as by his agent, the principal may have an election of remedy. 440. Other cases in which the act of the agent is treated as the act of the principaL] § 417. We come, in the next place, to the consideration of the rights of principals, which are acquired by, and under, or in ■virtue of, any agency, against third persons. These rights are naturally divisible into two sorts ; first, those which are acquired under the contracts made by their agents ; and, secondly, those which are acquired on account of torts or injuries done to their property or rights in the course of the agency. Many of the topics belonging to this head have incidentally come under review in the discussions in the preceding pages. They will, therefore, be briefly examined in this place, with such further illustrations as their importance may require. §418. And first, in relation to contracts. We ■ have already seen, that the principal is bound by the acts and contracts of his agent, done with his consent, or by his authority, or adopted by his ratification.! In such cases, there arises a reciprocal obliga- tion to the principal, on the part of the third person, with whom such contracts are made, and for whose benefit, and with whose consent, such acts are done. In short, the general doctrine, in all such cases, is, that the principal, as the ultimate party in in- ' Ante, §§ 147-164, 160, 161, 239, 242-244, 269, 270, 272 ; Paley on Agency, by Lloyd, 324 ; Seignior and Wolmer's case, Godb. 360, 861 ; Routh v. Thomp- son, 13 East, 274 ; Hagedorn v. Oliverson, 2 M. & Selw. 485 ; Maclean v. Dunn, 4 Bing. 722 ; 3 Chitty on Com. & Manuf. 201-203 ; Bridge v. Niagara Ins. Co. 1 Hill, 247. 494 AGENCY. [CH. XTI. terest, is entitled, against such third persons, to all the advan- tages and benefits of such acts and contracts of his agents.^ § 419. This doctrine applies, a fortiori, to every case where the agent does not contract in his own name, but solely in the name of his principal; for, in such a case, the principal is not only a contracting party, but he is the sole contracting party, exclusive of the agent, and is alone competent to sue or enforce any other remedy thereon.^ In all cases of this sort, however, the prin- cipal, while he is entitled to all the advantages and benefits of the contract of his agent, must take them with all the attendant burdens, and subject to all the attendant just counter-claims and defences of the other contracting party .^ Thus, if the contract of the agent is impeachable, on account of the fraud, imposition, misrepresentation, or other misconduct of the agent, the prin- cipal is affected with all the consequendes thereof, and cannot avail himself of his own innocence, to support wliat would other- wise be an unfounded or defective title.* So, if the agent has sold goods in his own name, no other person being known as prin- cipal, and the agent agrees, at the time of the sale, that the vendee may set off against the price a debt due to him by the agent, that set-off will be as good against a suit brought by the principal, as it- would be, if the suit was brought by the agent for the price.^ [But a purchaser, being a creditor of the agent of the vendor of an estate, and dealing with the agent in the absence of his principal, and without any special authority of the ' Paley on Agency, by Lloyd, 223-326 ; 2 Liverni. on Agency, 281-284 (ed. 1818) ; 3 Chitty on Com. & Manuf. 201 ; Grojan v. Wade, 2 Stark. 443 ; Small «. Atwood, 1 Youngej.407, 457. ^ Ante, §§ 261, 262. ^ Ante, §§ 402-404. [But this rule would not allow a purchaser of goods, bought of an agent, but in fact belonging to a foreign principal, to plead a discharge in bankruptcy to an action by such principal, which would have been a good bar, had the agent been the real principal ; at least, not when the fact was disclosed to the purchaser, that the goods belonged to a foreign principal, although his name was not given. Ilsley v. Merriam, 7 Cush. 242.] " Paley on Agency, by Lloyd, 325 ; 3 Chitty on Com. & Manuf 202, 203, 208. " Ante, §§ 237, 403, 404 ; Post, § 444 ; 2 Liverm. on Agency, 286 (ed. 1818) ; 1 Liverm. on Agency, 90, 91 (ed. 1818) ; Westwood v. Bell, 4 Campb. 349 ; Paley on Agency, by Lloyd, 325-327, and note (h), and Stracey v. Deey, there cited; s. o. 7 T. R. 361, note; George v. Clagett, 7 T. R. 359, 861; Rabone V. WiUiams, 7 T. R. 360, note (a). §§ 418-420.] PRINCIPALS AGAINST THIRD PERSONS. 495 principal for the purpose, is not entitled, as against the principal, by agreement with the agent alone, to place his debt, really due from the same agent, to the debit of the principal, on account of the purchase-money ; and any such arrangement will be treated as invalid.!] § 420. Upon the same ground, liable to the like exceptions, the principal is ordinarily entitled to the same remedies against such third persons, in respect to such acts and contracts, as if they were made or done with him personally. Thus, for ex- ample, if goods are bought or sold by an agent, the principal may maintain an action in his own name upon the contract, for the price or for the delivery of the goods. ^ The rule (it is said) equally applies, whether the principal be a foreign, or a domestic principal.^ It will not make any difference, that the agent may also be entitled to sue* upon the contract ; for, as we have seen in a great variety of cases, the agent and the principal have each a several right to sue on the same contract, the rights of the latter being in general, and subject to the exceptions already stated, paramount to those of the former.* Neither will it make any diiference, in such cases, that the agent is a factor, acting under a del credere, commission ; ^ nor that the principal, at the time of entering into the contract, is unknown or unsuspected ; ^ nor that the third person has dealt with the agent, supposing him to be the sole principal. '^ The only effect of the last con- ' Young V. White, 7 Beav. 506. » Ante, §§ 110, 161, 269, 270, 272, 402, 403; Paley on Agency, by Lloyd, 323, 324; Brewster v. Saul, 8 La. 296. ' Taintor v. Prendergast, 3 Hill, 72. * Ante, §§ 269, 270, 410, 411. ^ Ante, §§ 110, 161, 270, 272; Paley on Agency, by Lloyd, 324; Id. Ill, and note (3) ; Leveriok v. Meigs, 1 Cowen, 645, 663-666, 670 ; 3 Chitty on Com. & Manuf. 201, 202. ° Ante, § 270 ; Ilsley v. Merriam, 7 Cush. 242 ; Taintor u. Prendergast, 3 Hill, 72 ; Small «. Atwood, 1 Younge, 407, 452. On this occasion Lord Lyndhurst said, "Where a contract is entered into by a person as agent for another, though it is not known that he is contracting in the character of agent at law, an action may be maintained either in the name of the agent or in the name of the principal ; and, in a court of equity, I apprehend it is perfectly clear, that where a contract is entered into by an agent in his own name, but really on behalf of other persons, it is necessary that those other persons, as being interested in the subject-matter of the suit, should be, in some shape or other, parties to the contract." ' Ante, §§ 266, 267, 291-294; 3 Chitty on Com. & Manuf. 201, 202; Smith 496 AGENCY. [CH. XTI. sideration is, that the principal will not be permitted to intercept the rights of such third person in regard to the agent ; but he must take the contract, subject to all equities, in the same way as if the agent were the sole principal.^ Thus, for example, if the agent is the only known br supposed principal, the person dealing with him will be entitled to the same right of selroff, as if the agent were the true and only principal.^ But, subject to these rights, and those of the agent himself, the principal may generally sue upon such a contract, in the same manner as if he had personally made it. § 421. This doctrine is of high antiquity in the common law ; and it is so entirely consonant to natural and reciprocal justice, that it probably had its foundation in the earliest rudiments thereof. It was recognized in an early case, where the principal had authorized his servant to compound and settle a debt with the debtor, and the debtor made a composition and settlement with the servant, and promised the latter to pay the balance ; and it was held, that the principal might maintain an action in his own name upon the promise.^ So, the principal may sue on Merc. Law, B. 1, ch. 5, § 6, pp. 134, 135 (3d ed. 1843) ,- Brewster v. Saul, 8 La. 296 ; Williams v. Winchester, 19 Martin, 22 ; Leverick v. Meigs, 1 Cow. 645, 663-665 ; Hicks v. Whitmore, 12 Wend. 548 ; Walter v. Ross, 2 Wash. Cir. 283 ; GrcJjan v. Wade, 2 Stark. 443 ; 2 Kent, Comm. Lect. 41, p. 632 (4th ed.). > Smith on Merc. Law, 73, 84 (2d ed.) ; Id.B. l,ch. 5, § 5, pp. 134, 135 (3d ed. 1843) ; Coates v. Lewes, 1 Campb. 444; Gibsonu. Winter, 5 B. &AdoIph. 96 ; 2 Kent, Comm. Lect. 41, p. 632 (4th ed.) ; Ante, §§ 390, 404, 407, 419, 420. " Smith on Merc. Law, 74, 75 (2d ed.) ; Id. B. 1, ch. 5, § 5, pp. 134, 135 (3d ed. 1843) ; Coates v. Lewes, 1 Campb. 444; Ante, §§ 390, 404, 407, 419, 420 ; Paley on Agency, by Lloyd, 277-280, 288, 289 ; Stracey v. Deey, 7 T. R. 361, note ; Carr v. Hinchliff, 4 B. & Cressw. 547 ; Taylor v. Kymer, 3 B. & Adolph. 320 ; Baring v. Corrie, 2 B. & Adolph. 137 ; Gibson v. Winter, 5 B. & Adolph. 96; 3 Chitty on Com. & Manuf. 201-203; Taintor v. Prender- gast, 3 Hill, 72 ; Young v. White, 7 Beav. 606. ' Seignior and Walmer's case, Godb. 360 ; Paley on Agency, by Lloyd, 323 ; 3 Chitty on Com. & Manuf. 201. In Seignior and Walmer's case (Godb. 360), Mr. Justice Dodderidge said, "An assumpsit to the servant for the master is good to the master ; and an assumpsit, by the appointment of the master of the servant, shall bind the master, and his assumpsit. 27 Ass. If my baily of my manor buy cattle to stock my grounds, I shall be chargeable in an action of debt ; and, if my baily sell corn or cattle, I shall have an action of debt for the money ; for, whatsoever comes within the compass of the servant's service, I shall be chargeable with, and likewise shall have advantage of the same. If a §1 420-422.] PRINCIPALS AGAINST THIRD PERSONS. 497 upon a contract made by his servant for labor and services, if he originally authorized the servant to make the contract, or subse- quently ratified it ; at least if, at the time, the other contracting party knew that the servant was not acting sui juris, or if he afterwards had notice thereof from' the principal, before the price of the labor and service were paid to the servant.^ § 422. There are exceptions, indeed, to this doctrine, most of which have been already alluded to, where the principal can neither sue nor be sued upon the very contract made by his agent, although it has been made by his authority, or in the servant selleth a horse with warranty, it is the sale and contract of the master, but it is the warranty of the servant, unless the master giveth him authority to warrant it ; for a warranty is void which is not made and annexed to the con- tract ; but there it is the warranty of the servant, and the contract of the mas- ter. But if the master do agree unto it after, it shall be said, that he did agree to it ab initio. As, where a servant doth a disseisin to the use of his master, the master not knowing of it, and then the servant makes a lease for years, and then the master agrees, the master shall not avoid the lease for years ; for now he is in, by reason of his agreement, ab initio. When the servant promiseth for the master, that the master shall forbear to sue, &c., and shall by such a day deliver to the defendant the obligation, &c., and the defendant promiseth to pay the money at such a day ; and the master, having notice thereof, agreeth to it, it is now the promise of the master ab initio ; for it is included in his anthority, that he should agree, compound, &c., and he hath power to make a promise." Judgment in the principal case was given for the plaintiff. But see ante, §§ 59, 132. ' Paley on Agency, by Lloyd, 339. Mr. Lloyd's note on this subject de- serves to be cited. Mr. Paley, in his text, had said, "Whether a master may bring an action for the recovery of his servant's earnings, seems to be a point unsettled." (See Co. Litt. 117 a, Mr. Hargrave's note.) Mr. Lloyd then adds: " There would not, however, it is apprehended, be much difficulty in deciding such a point, when it arose. The question would be, first. Was the transfer of service originally made with the master's assent ; if not, it seems clear that the master might, by subsequently adopting the act, maintain an action for work and labor done by his servant. If yes, there is then the further question, whether the servant, in that particular employment, was to be con- sidered as the servant of his original master, or that of the person immediately employing him. And it is submitted, that, if the master were liable for wages to the servant during the period of the substituted employment, the inference would arise, that he still considered the servant as his own, and did not intend to waive the benefit of his earnings. But, if, by previous agreement, he were released from a proportionate amount of wages, then the contrary conclusion would be the more reasonable. If payment have been made to the servant, in ignorance that he was the servant of another, probably in that case the employer would be discharged." AGENCY. 32 498 AGENCY. [CH. XVI. course of the agency.^ Thus, if the instrument is under seal, and is exclusively made between the agent and the third person, — as, for example, if it is a charter-party or bottomry bond, made by the master of a ship in the course of his employment, — the principal can neither sue nor be siied thereon, althoiigh he may be bound thereby, and may be entitled to collateral rights and remedies growing out of it.^ § 423. Another exception is, where an exclusive credit is given to and by the agent ; and, therefore, the principal cannot be treated as in any manner whatsoever a party to the contract, although he may have authorized it, or may be entitled to the benefit of it. Thus, a foreign factor, buying or selling goods, is ordinarily treated, as between himself and the other party, as the sole contracting party ; and the real principal cannot sue or be sued on the contract.^ This is a general rule of com- mercial law, founded upon the known usage of trade ; and it is strictly adhered to, for the convenience and safety of foreign commerce.* § 424. Another exception is, where the agent has a lien or claim upon the property bought or sold, or upon its proceeds, which is equal to or exceeds the amount or value thereof ; for, in such a case (as we have seen), the rights of the agent are paramount to those of the principal ; and the principal has no right to sue thereon, unless with the consent of the agent ; and, if he does sue, and the other party has received notice of the lien, the suit will be ineffectual, or at the peril of the party sued.^ If any other doctrine were to prevail, the right of lien of the agent might be defeated at the mere will of the principal. ' Ante, §§ 160, 160 a, 161, 162, note, 278, 294; Handford u. McNair, 9 Wend. 54 ; Blood v. Goodrich, 9 Wend. 68. = Ante, §§ 158, 160, 160 a, 161, 162, 273, 276-278, 294; Post, § 460; Shack V. Anthony, 1 M. & Selw. 673 ; Abbott on Shipp. Pt. 3, ch. 1, § 2, pp. 163, 164 (Amer. ed. 1829). See Tilson v. Warwick Gas Company, 4 B. & Cressw. 962, 968, per Bayley, J. ; Fletcher v. Gillespie, 3 Bing. 636 ; Ersk. Inst. B. 3, tit. 3, §§ 47-49; Dubois v. Delaware and Hudson Canal Co. 4 Wend. 285; Hall V. Bainbridge, 1 Mann. & Gr. 42. =■ Ante, §§ 268, 279, 290, 400 ; Post, § 448. * Ante, §§ 268, 279, 290, 400; Thompson v. Davenport, 9 B. & Cressw. 87; Paterson v. Gandasequi, 16 East, 62 ; Addison v. Gandasequi, 4 Taunt. 574 ; Smith on Merc. Law, 66 (2d ed.) ; Id. pp. 122, 123 (3d ed. 1843). " Ante, §§ 393, 397, 407, 408. §§ 422-425.] PRINCIPALS against third persons, 499 § 425. The differences, in these respects, between our law and the Roman law, have already, in some measure, come under our notice ; ^ but it may not be without use to present some of them a little more fully in this place. By the Roman law, as it originally stood, the principal could not ordinarily sue or be sued on the contract made through the instrumentality of his agent ; but the latter was generally treated as the proper and sole con- tracting party .2 This was siibsequently altered by the edicts of the praetor, so far as it respected the rights of third persons to institute suits against the principal, in cases falling within the reach of the exercitorial and institorial actions.^ But the exer- citorial action did not lie in favor of the owner or employer (exercitor) against the other party contracting with the master. He was not, however, without a remedy ; for, if there was a con- tract of hire with the master, the owner or employer might recover the hire in a direct action, ex locato ; if there was a gratuitous contract, he might maintain an action ex mandato. So the Digest has declared. " Sed ex contrario, exercenti navem adversus eos, qui cum magistro contraxerunt, actio non poUicetur, quia non eodem auxilio indigebat ; sed aut ex locato cum magis- tro, si mercede operam ei exhibet ; aut si gratuitam, mandati agere potest." * ' Ante, §§ 163, 261, 271. ' Ante, §§ 163, 261, 271. Pothier, after quoting the doctrine of Paulus in the Digest, "Per proouratorem non semper acquirimus actiones" (Dig. Lib. 3, tit. 3, 1. 72), adds, in a note, "Dicet, non semper; quia, ut mox videbitur, actio utilis interdum nobis ex contractu procuratoris aceommodatur ; quod est contra principia juris, quse non permittunt aliquid acquiri per personam juri nos- tro non subjectam." Pothier, Pand. Lib. 3, tit. 3, n. 9, marg. note (1). ^ Ante, §§ 163, 261, 271 ; Dig. Lib. 14, tit. 1, 1. 1 ; Id. tit. 3, 1. 1 ; Pothier, Pand. Lib. 14, tit. 1, n. 10, 11, 18 ; Id. Lib. 14, tit. 3, n. 1, 9, 10, 17, 18 ; Ersk. Inst. B. 3, tit. 3, §§ 43, 46. * Dig. Lib. 14, tit. 1, 1. 1, § 18; Pothier, Pand. Lib. 14, tit. 1, n. 18, and Pothier's note (1). Pothier says, "Scilicet, ut magister ipsi suas cedat ac- tiones." He adds, in another place, speaking of the case of Institors, " Eadem equitas occurrit, ut hoc casu detur etiam actio exercitori versus eum, qui cum magistro navis contraxit." Pothier, Pand. Lib. 14, tit. 3, n. 4, marg. n. (3). See also Pothier, Pand. Lib. 14, tit. 1, n. 18, where he says that, in cases of owners of provision ships, a broader right is allowed. " Solent plane prsefecti propter ministerium annonse, item in provinces presides provinciarum, extra ordinam eos juvare ex contractu magistrorum." Pothier, Pand. Lib. 14, tit. 1, n. 18, citing Dig. Lib. 14, tit. 1, 1. 1, § 18. He then adds, in a note (3), " Exercitores navium ad annonam inservientium. Caeteris autem exercitoribus 500 AGENCY. [CH. XVI. § 426. The institorial action was also, in its terms, apparently limited to suits against the principal. " -iEquum prsetori visum est, sicut commoda sentimus ex actu institorum, ita etiam ob- |igari nos ex contractibus ipsorum, et conveniri." ^ But no like action lay against the other contracting party by the principal. However, he was not without remedy, since, by a cession of the right of action from the institor, he might, in some cases, main- tain a suit founded thereon against the other party. " Sed non idem facit circa eum, qui institorem prseposuit, ut experiri possit. Sed, si quidem servum proprium institorem habuit, potest esse securus, adquisitis sibi actionibus. Si autem vel alienum servum, vel etiam hominem liberum, actione deficietur; ipsum tamen institorem, vel dominum ejus convenire poterit, vel mandati, vel negotiorum gestorum." ^ It is added : " Marcellus autem ait, debere dari actionem ei, qui institorem pr^posuit, in eos, qui cum 60 contraxerint." ^ And Gains held, that the principal might maintain the suit, if he could not otherwise vindicate his right : " Ex nomine, quo institor contraxit, si modo aliter rem suam servare non potest." * § 427. In special cases, also, where the contract, made through an agent, was declared to be directly obligatory between the principal and the other contracting party (as, for example, in case of a sale), the principal might maintain a direct action thereon. Thus the Digest puts it : " Si procurator vendiderit, et caverit emptori ; quseritur, an domino, vel adversus dominum, actio dari debeat ? Et Papinianus (Lib. 3, Responsorum) putat, cum domino ex empto agi posse utili actione, ad exemplum insti- torise actionis, si modo rem vendendam mandavit ; ergo et per contrarium dicendum est, utilem ex empto actionem domino competere." ^ non datur actio adversus eos, qui cum magistro contraxerunt ; nisi forte eo casu, quo aliter rem suam servare non possent ; " and he then refers to Pothier, Pand. Lib. 14, tit. 3, n. 4. ' Dig. Lib. 14, tit. 3, 1. 1 ; Pothier, Pand. Lib. 14, tit. 3, n. 1. ' Dig. Lib. 14, tit. 3, 1. 1 ; Pothier, Pand. Lib. 14, tit. 3, n. 4, 17. Pothier adds in his note (2 to n. 4) : " Ut actionem ex hoc contractu Institoris, sive in cujus potestate Institor est, qusesitam cedat." ' Dig. Lib. 14, tit. 3, 1. 1 ; Pothier, Pand. Lib. 14, tit. 3, n. 4. " Dig. Lib. 14, tit. 3, 1. 2 ; Pothier, Pand. Lib. 14, tit. 3, n. 4. ^ Dig. Lib. 19, tit. 1, 1. 13, § 26 ; Pothier, Pand. Lib. 3, tit. 3, n. 9, and marg. note (3). §§ 426-429.] PRINCIPALS against third persons. 501 § 428. But, except in these and a few other cases, the general rule seems to have prevailed in the Eoman law, that reciprocal actions lay, in cases of agency, only between the direct and im- mediate parties thereto.^ The modern nations of continental Europe seem, with great wisdom, to have adopted the general doctrine of allowing reciprocal actions between the principal and the other contracting parties, wherever it is not excluded by the nature or by the express terms of the contract.^ § 429. The rights of principals against third persons, arising from the acts and contracts of their agents, may be further illus- trated by the consideration of payments made to or by the latter. And, first, in relation to payments made to agents. Such pay- ments are good, and obligatory upon the principal, in all cases where the agent is authorized to receive payment, either by express authority, or by that resulting from the usage of trade, or from the particular dealings between the parties.^ In such cases the maxim of the Roman law is justly applied : " Quod jussu alterius solvitur, pro eo est, quasi ipsi solutum esset." * But the principal may intercept such payment, by giving notice to the debtor not to pay to the agent before the money is paid ; and, in such a case, if the agent has no superior right, from a lien or otherwise, any subsequent payment made to the agent will be invalid, and the principal may recover the money from the debtor.^ ' Pothier, Pand. Lib. 3, tit. 3, n. 9, marg. note (1) ; Ante, §§ 163, note 1, 261, 272, 425 ; Ersk. Inst. B. 3, tit. 3, §§ 43, 46. ' Ante, §§ 163, 261, 272, Pothier on Oblig. n. 72, 82, 447, 448 ; 1 Stair, Inst. B.l, tit. 12, § 16; Ersk. Inst. B. 3, tit. 3, §§ 43-47. ' Ante, §§ 98, 99, 181, 413; Post, § 440; 2 Liverm. on Agency, 226, 232 (ed. 1818) ;■ Id. 283-286 ; Smith on Merc. Law, 67, 68 (2d ed.) ; lb. B. 1, ch. 5, § 4, pp. 124, 125 (5th ed. 1843) ; Ante, §§ 98, 181, 215, 413 ; Post, § 461 ; Paley on Agency, by Lloyd, 111, 112, note ; Id. 278-281, 286, 288 ; 326-327 ; Baring v. Corrie, 2 B. & Aid. 137 ; Favenc v. Bennet, 11 East, 36 ; Morris v. Cleasby, 1 M. & Selw. 576, 579 ; 1 Liverm. on Agency, 226-232 (ed. 1818). Payment to a sub-agent will sometimes bind the agent, so as to make him responsible to his principal for any loss of the money in the hands of the sub-agent. Taber v. Perrott, 2 Gall. 565 ; Ante, § 231 (a). * Dig. Lib. 50, tit. 17, 1. 180 ; Pothier on Oblig. by Evans, n. 470 (n. 506 of the French editions) . " Ante, §§ 112, 402, 403, 407 ; Favenc v. Bennet, 11 East, 36 ; Morris v. Cleasby, 1 M. & Selw. 676, 579 ; 1 Liverm. on Agency, 226-232 (ed. 1818) ; Powell V. Nelson, cited 15 East, 66 ; Paley on Agency, by Lloyd, 111, 112, 502 AGENCY. [CH. XVI, § 430. The modes and circumstances, under which such pay- ments are made to the agent, may also have a material bearing on the rights of the principal. If the payments are received by the agent, according to the ordinary course of business, or even if they are made out of the ordinary course of business, if the agent alone is known, or is supposed to be the principal, and the debtor has no notice of any claim by the real principal, the lat- ter will be bound thereby .^ But, if the transaction is on behalf of a known principal, or the principal is afterwards disclosed, no subsequent payment but such as is strictly authorized by the usual course of business, or by the particular usage of trade, or by the express or implied authority of the principal, will bind him ; and, if made otherwise, the principal may, notwithstanding, recover the amount from the debtor.^ and note ; Id. 285-288, 326-328 ; Sorimshire v. Alderton, 2 Str. 1182 ; Mann V. Forrester, 4 Campb. 60 ; Stewart v. Aberdein, 4 Mees. & Wels. 218, 226, 228 ; Corlies v. Cumming, 6 Cowen, 181, 186. ' Ante, §§ 98, 106, 109, 181, 413 ; Paley on Agency, by Lloyd, 279-281, 288; Ante, §§ 98, 181, 215, 413; Faveno v. Bennet, 11 East, 88; Coates v. Lewes, 1 Campb. 444 ; Blackburn v. Scholes, 2 Campb. 341, 343 ; Morris v. Cleasby, 1 M. & Selw. 576, 579 ; 1 Liverm. on Agency, 226--232 (ed. 1818) ; Smith on Merc. Law, 74, 76 (2d ed.) ; Id. B. 1, ch. 6, § 4, pp. 124, 126", 135, 136 (3d ed. 1843) ; De Valingin's Adm'r v. Duff, 14 Peters, 282. Hence it is, that if the principal be unknown and undisclosed, the agent may vary the terms of the contract, and receive payment in any manner he may please, since he acts as and is supposed to be the principal. Blackburn v. Scholes, 2 Campb. 341, 843. See Paley on Agency, by Lloyd, 281-284. In Stewart v. Aberdein, 4 Mees. & Wels. 211, 218, which was a case where an insurance broker had received payment of a loss by a set-off with the underwriters, according to usage. Lord Abinger, at nisi prius, in summing up, expressed his opinion, " that the notion had been pushed too far about the actual payment in cash ; and that it appeared to him, that, if one man has to pay another money On account of his principal, and there is money due to him from such other person, it makes no difference to the principal, whether there is an interchange of bank-notes, or a mere transfer of accounts from one side to the other ; and that it is equally a payment if it is done without fraud. He, however, left the whole facts to the jury, and directed them to consider, whether parties, effecting insurance for their own benefit through an agent, must not know what is the habit of dealing between the broker and underwriter, and whether the authority to settle must not mean, that the broker should settle in the same way as is the custom to settle with underwriters." The court held his direction right. Ante, § 429, note. See also Carr v. Hinchliff, 4 B. & Cressw. 547 ; Gibson v. Winter, 6 B. & Adolph. 96. » Paley on Agency, by Lloyd, 278-281 ; Townsend v. Inglis, Holt, N. P. §§ 430-432.] PRINCIPALS AGAINST THIRD PERSONS. 503 § 131. Secondly, in relation to payments made by agents for their principals. In these cases, any mode of payment by the agent, accepted and received as such by the other contracting party, as an absolute payment, will discharge the principal, whether he be known or unknown, and whether it be in the usual course of business, or not.^ Thus for example, if a factor, or other agent, should be employed to purchase goods for his principal, or should be intrusted with money to be paid for his principal, and the creditor or seller should take the note of the factor or agent, payable at a future day, as an absolute payment, the principal would be entirely discharged from the debt, and the creditor, having thus given exclusive credit to the factor or agent, would have no remedy except against the latter.^ The question, in most cases of this sort, is not, generally, so much a question of law, as of fact ; that is to say, whether the note is received as a conditional payment, or as an absolute payment ; whether it is received with the knowledge, that there is another principal, or not ; and whether there is an exclusive credit given to the agent or not.^ § 432. On the other hand, in all cases of this sort, where ex- clusive credit is given to the agent, or an absolute payment is acknowledged, either by receiving a security, or otherwise, the agent has a right to substitute himself to the creditor, and to recover the amount from his principal, in the same manner, although not in the same form of action, as if it had been actu- 278 ; Stewart v. Aberdein, 4 Mees. & Wels. 218, 228 ; Underwood v. NichoUs, 17 Com. B. 239 ; 33 Eng. Law and Eq. 321 ; Ante, §§ 98, 181, 410, 413, 429. ' Post, § 440. « Chitty on Com. & Manuf. 204 ; Ante, 266-268, 287-300 ; Seymour v. Pychlau, 1 B. & Aid. 14, 17-19 ; Strong v. Hart, 6 B. & Cressw. 160, ap- proved in Anderson v. Hillies, 10 Eng. Law and Eq. 497 ; Smith v. Ferrand, 7 B. & Cressw. 19 ; Marsh v. Pedder, 4 Campb. 257. ' Seymours. Pychlau, 1 B. & Aid. 14; Ante, §§ 290, 291, 293, 296, 297; Paley on Agency, by Lloyd, 250-262 ; Strong v. Hart, 6 B. & Cressw. 160 ; Smith V. Ferrand, 7 B. & Cressw. 19 ; Porter v. Talcott, 1 Cowen, 359, 383, 385 ; Johnson v. Weed, 9 John. 310 ; 1 Liverm. on Agency, 207-212 (ed. 1818) ; Everett v. Collins, 2 Campb. 515 ; Corlies v. Cummings, 6 Cowen, 181, 187 ; Muldon V. Whitlock, 1 Cowen, 290, 303-305 ; Schermerhorn v. Loines, 7 John. 311; Cheever o. Smith, 15 John. 276; Tapley v. Martens, 8 T. R. 451; Marsh B. Pedder, 4 Campb. 257 ; Jaques v. Todd, 3 Wend. 83 ; Lincoln v. Battelle, 6 Wend. 475 ; Tobey v. Barber, 5 John. 68 ; Pentz v. Stanton, 10 Wend. 271. ' 504 AGENCY. [CH. XTI. ally paid by him. Therefore, if an insurance broker, by the usage of business, or by the agreement of the parties, is exclusively liable to the underwriters for the premium, and they credit him therefor accordingly, he is entitled to recover the amount from his principal, even though he has not actually paid the money to the underwriters.^ But this doctrine is confined to cases where ' See Seymour v. Pychlau, 1 B. & Aid. 14; Power v. Butcher, 10 B. & Cressw. 329. On this latter occasion, Mr. Justice Bayley said, "This is an action by the assignees of an insurance broker, for work and labor, and pre- miums, against the defendants, who are ship-owners, and had employed the broker to effect certain policies on their behalf, which he did effect with a com- pany of which he was a member. Now, according to the ordinary course of trade between the assured, the broker, and the underwriter, the assured do not, in the first instance, pay the premium to the broker, nor does the latter pay it to the underwriter. But, as between the assured and the underwriter, the pre- miums are considered as paid. The underwriter, to whom, in most instances, the assured are unknown, looks to the broker for payment, and he to the assured. The latter pay the premiums to the broker only, and he is a middle- man between the assured and the underwriter. But he is not solely agent ; he is a principal to receive the money from the assured, and to pay it to the under- writers. In this case, the policies were not in the ordinary form, but by deed, and the broker covenanted to pay the premiums to the underwriters ; and in consideration of that covenant the policies were effected. The underwriters, therefore, took a covenant from the broker to pay the premium, instead of acknowledging the receipt of the premium, as they do in the ordinary case of a policy by simple contract. In such a case, the action would be maintainable at the suit of the broker, on the principle, that he was entitled to call upon the assured for the payment of those premiums which he had become liable to pay to the underwriters, and which they had acknowledged the receipt of. The assured have had the benefit of the policies ; and, if the underwriters were liable upon the risk, they were warranted in calling upon the broker to pay the premiums. In point of justice, the assured ought to pay the broker, or, in the event, which has happened, of his failure, his assignees. In an ordinary case, the assurers would have no claim upon the assured for the premium, because, by the policy, they acknowledge the receipt of it. Here there is no such ac- knowledgment, and, therefore, it may be said, the assurers may claim the premiums from the assured. A contract cannot be raised by implication of law, except in the absence of an express contract. Now, here there was an express contract between the underwriters and the assured, through the agent, and by that contract the underwriter agreed to look to the broker alone for the pre- miums. The assured have had the same benefit from the policies, as if the premiums had been advanced to the underwriters at the moment when the poli- cies were effected. Then, it is necessary to consider in what situation the broker stands, in order to ascertain whether he is not entitled to call upon the assured for the premiums. The underwriters have a claim upon him for the full §§ 432, 433.] PRINCIPALS against third persons. 505 it results from the usage of trade, or from the express or implied agreement of the parties. For, if a factor, or other agent, should buy goods for his principal in his own name, and on his own ex- clusive credit, payable at a future day, he would not be at lib- erty, as between himself and his principal (unless the purchase was agreed between them so to be made), to consider himself as the vendor, or to sue for the value of the goods before the expira- tion of the credit.^ § 433. The doctrine may be carried further ; for, if a cred- itor of the principal settles with the agent, and takes a note or other security from the latter, for the amount due by the prin- cipal, although, as between the parties, it is intended only as a conditional payment ; yet, if the creditor gives a receipt, as if the money were actually received, or the security were an amount of premiums ; and, if that be so, he ought to recover those premiums from those persons who have had the benefit of the policies." ' Seymour v. Pychlau, 1 B. & Aid. 14, 16-18. This case was presented under somewhat peculiar circumstances. The purchase of the goods was made by an agent for a foreign merchant then in England. The agent gave his ac- ceptances, payable at six months, for the amount. But the goods were known to be purchased for the foreign merchant, and the invoices were made out in his name. The agent brought an action against his principal for goods sold and delivered, before the acceptances became due, pending which suit he became bankrupt. The court held the action not maintainable. Lord Ellenborough said, " There is not one feature in the ease, to show that the plaintiff was to buy in order to assume the character of seller to the defendant. The relation be- tween the parties is this : the defendant, coming from Russia, wants the accom- modation of a person in this country to become responsible for him; the defendant is to pay to the plaintiff a commission for the service done ; when a person pays another a commission, such other person stands in the relation of factor or agent ; but this commission is to be paid when he has performed the duty. What is the duty ? to pay for the goods ; then, if the defendant is now liable to the plaintiff for the debt, he does not derive the benefit intended to be earned by the payment of commission. Upon the latter point, there is not any pretence for saying, that the price is demandable instanter. Let us look at the reason of the thing : the defendant wants credit, and yet he is called upon to pay his agent immediately. The plaintiff was to pay by a bill at six months ; when he has paid that bill, then he may sue the defendant, and not before. If it were otherwise, the plaintiff would be placed in a worse situation with respect to his agent, than he would with respect to the seller. I think, therefore, that, as there was not in this case any thing to import a contract of buying and sell- ing, and as immediate payment was contrary to the nature of the thing, and the expectancy of the parties, and, as there was not any express stipulation to that effect, the plaintiff has failed in both points." 606 AGENCY. [CH. XYI. absolute payment, so that the agent is thereby enabled to settle, and does settle, with the principal, as if the debt had been actually discharged, and the principal would otherwise be prej- udiced, the debt will be deemed, as to the latter, absolutely dis- charged.i § 434. Upon this ground, where work was done for the prin- cipal, and the account was presented to his steward, who gave his own check on a banker for the amount ; and thereupon the creditor gave a receipt for the money on account of the principal ; and, upon the dishonor of the check, the creditor ac- cepted another draft for the amount, payable at a future time from the steward ; it was held, that, if the principal had, in the mean time, settled his accounts with his steward, or had dealt with him differently in consequence of that receipt, so that he would be prejudiced thereby, the principal would be dis- charged.2 The same doctrine will apply to the case of a ship's husband, or a shipmaster, contracting a debt for supplies, or for repairs of the ship, where an exclusive credit is originally given to him, or an absolute payment is afterwards acknowl- edged, by a receipt, upon a note or other seciirity being given by such agent for the amount, whereby he is enabled to settle with, and to receive the amount, in credit or otherwise, from the owners 3 § 435. The foregoing are cases, where payments made by the agent are available for the principal, as being for his benefit. But payments may have been made by an agent injuriously to the principal ; and the question often arises, under what circum- stances the principal is entitled to recover back the money so paid. In the first place, he may recover it back, when the whole consideration fails ; as in the case of a deposit upon account of Smith on Merc. Law, 55-58 (2d ed.) ; Id. B. 1, ch. 5, § 4, p. 103-108 (3d ed. 18i3) ; Paley on Agency, by Lloyd, 343-345 ; 3 Chitty on Com. & Manuf. 201-205 ; 2 Kent, Coram. Lect. 41, pp. 629, 630 (4th ed.). See also Todd v. Emly, 7 Mees. & Wels. 427. 2 Ante, §§ 72, 105, 127, 128; Kems v. Piper, 4 Watts, 222. [*And the principal is held to be bound by the knowledge of his agent acquired in another transaction. Dresser v. Norwood, 17 C. B. N. s. ; Hart v. F. & M. Bank, 83 Vt. 252, 466 ; Blumenthal v. Brainerd, 38 Vt. 410 ; Ante, § 140 a.] ' Ante, §§ 17, 18, 73, 126, 127, 131-133, 227, 228; Post, § 470; Smith on Merc. Law, 56-59 (2d ed.) ; Id. B. 1, ch. 6, § 4, pp. 103-111 (3d ed. 1843) ; 3 Cliitty on Com. & Manuf. 202, 203. * Ante, §§ 17, 18, 73, 126-133, 227, 228. §§ 442-444.] THIRD PEfiSONS AGAINST PEINCIPALS. 513 against their orders.^ So, if the principal should clothe the agent although a mere special agent, with all the apparent muniments of an absolute title to the property in himself, the principal would be bound by the acts of the latter ; as, for example, if he should clothe him with the apparent title to property by a bill of lading of a shipment, as by making the shipment appear to be on account of the agent, or should trust him with negotiable secu- rities, indorsed in blank, a sale or disposal thereof by the agent, although in violation of his private orders, would bind the prin- cipal, and give correspondent rights and remedies to third persons, who become hond fide possessors under such sale, or other act of disposal, against him.^ § 444. So, upon similar grounds, the rights of third persons will be protected, where they deal with an agent, supposing him to be the sole principal, without any knowledge that the property involved therein belongs to another person. This has been, already alluded to, in cases where purchases are made of a factor or other agent holding himself out as the principal, or supposed to be such, and the buyer has a set-off against such agent or factor.^ In such cases, the set-off is equally good, whether a • suit be brought in the name of the principal or of the factor or agent, for the price of the goods.* So, if an agent employed to collect money, and to remit it to his principal, should lend it to a person to whom he is indebted in a larger amount, the latter, if he has. no knowledge that the money does not belong to the agent, may retain it as a set-off, and may resist a suit therefor by the principal, although notice of the claim of the principal is ' Abbott on Shipp. Pt. 2, ch. 2, §§ 6-8, pp. 94^98 (Amer. ed. 1829) ; Ellis ». Turner, 8 T. K. 631 ; Ante, §§ 73, 126-133. = Ante, §§ 34, note, 227, 228. [* " Whenever the very act of the agent is authorized by the terms of the power, that is, whenever by comparing the act done by the agent with the words of the power, the act is in itself warranted by the terms used, such act is binding on the constituent. As to all persons dealing in good faith with the agent, such persons are not bound to inquire into facts aliunde. The apparent authority is the real authority." President, &c. v. Cornen, 37 N. Y. Ct. Ap. 322, and cases cited.] ' Ante, §§ 390, 404, 407, 419, 420. * Ante, §§ 419, 420 ; Smith on Merc. Law, 74, 75 (2d ed.) ; Id. B. 1, ch. 5, § 5, pp. 135, 136 (2d ed. 1843) ; Paley on Agency, by Lloyd, 277-280, 288, 289, 326, 383 ; 3 Chitty on Com. & Manuf. 202 ; Morris v. Cleasby, 4 M. & Selw. 566 ; George ». Clagett, 7 T. R. 359 ; Pickering v. Busk, 16 East, 38 ; Whitehead o. Tuokett, 16 East, 400. xaENCT. 83 514 AGENCY. [CH. XTII. given to him before the suit is brought.^ But, where an agent is known to be merely acting as such in the transaction, a third person, dealing with him with full notice, cannot avail himself of any right of set-off which he may have against the agent.'"' § 445. So, if a contract is originally made without the authority of the principal, he may, by a ratification of it, give it validity, so as to confer upon the other contracting party the same rights and remedies as if he had personally made it ; ^ for, as we have seen, the general maxim is, that a subsequent ratification is equivalent to a prior authority : " Omnis ratihabitio retrotrahitur, et man- dato priori sequiparatur." * This is so regularly true, that if an agent purchases goods for his principal without due authority, and signs a written contract therefor, and the contract is within the statute of frauds, yet, if the principal subsequently ratifies it, the ratification will make the contract good within the statute of frauds, so as to bind the principal.^ § 446. The liability of the principal to third persons upon con- tracts made by his agent, within the scope of his authority, is not varied by the mere fact, that the agent contracts in his own name, whether he discloses his agency or not, provided the circum- stances of the case do not show that .an exclusive credit is given to the agent.^ Thus, if an agent purchases goods in his own name for his principal, without disclosing the latter, the principal ' Limerock Bank v. Plimpton, 17 Pick. 159. " Hurlburt v. Pacific Ins. Co. 2 Sumner, 471 ; Young v. White, 7 Beav. 506. But where the principal has parted with all beneficial interest in any property, the agent cannot make a valid sale thereof, nor a valid contract in respect thereto, so as to bind the principal, although the latter still retain the legal title. Thus, although the registered owner of a ship would be liable prima facie for repairs done thereon, this presumption may be rebutted by proof that he has parted with the beneficial interest. Jennings v. Griffiths, Ryan & Mood. 42 ; Mclver o. Humble, 16 East, 169 ; Curling v. Robinson, 7 Mann. & Gr. 339. » Ante, §§ 239-260 ; Smith on Merc. Law, 60 (2d ed.) ; Id. p. 108 (3d ed. 1848). '' Maclean v. Dunn, 4 Bing. 722 ; Smith on Merc. Law, 60 ; 1 Liverm. on Agency, 44; Co. Litt. 207 a; Ante, §§ 239-260 (2d ed.) ; Id. p. 108 (3d ed. 1843). * Ante, § 244 ; Maclean v. Dunn, 4 Bing. 722 ; Kinnitz v. Surry, Paley on Agency, by Lloyd, 171, note; Soames v. Spencer, 1 Dowl. & Ryl. 32; Smith on Merc. Law, 59, 60 (2d ed.) ; Id. pp. 108, 183, 134 (3d ed. 1843). 8 1 Bell, Comm. § 418 (4th ed.) ; Id. B. 8, ch. 3, pp. 491, 492 (5th ed.) ; Paley on Agency, by Lloyd, 243, 244 ; Ante, §§ 147, 269, 270. §§ 444-446.] THIRD PERSONS AGAINST PRINCIPALS. 515 will be liable, when discovered, to the vendor, for the price.^ So, if the agent purchases the goods, and states, at the time, that he purchases as agent, but does not disclose the name of his prin- ' cipal, the latter will not be absolved from the contract ; for, in such a case, as the principal is not known, it is impossible to say that the vendor has made his election not to trust the principal, but exclusively to trust the agent.^ He may credit both, or either ; and he is not to be presumed to have an intention to elect either exclusively, until the name and credit of both are fairly before him.^ If no exclusive credit has been given by the vendor, in such cases, either to the principal or to the agent, it will make no difference in the rights of the vendor that there is a private and unknown agreement between the principal and agent, that either of them should be exclusively liable for the amount; for such agreements, however valid between the parties, cannot be admitted to change the rights of third persons who are strangers to them.* Neither, for the same reason, will a set-off which the principal has against the agent, be, under such circumstances, available against the vendor.* ' Ante, §§ 266-270, 420 ; Paley on Agency, by Lloyd, 343-345 ; Smith on Merc. Law, 65, 66 (2d ed.) ; Id. B. 1, ch. 6, § 5, pp. 133, 134 (3d ed. 1843) ; Paterson v. Gandasequi, 15 East, 62 : Addison v. Gandasequi, 4 Taunt. 674 ; Railton v. Hodgson, 4 Taunt. 576, n. ; Wilson v. Hart,-7 Taunt. 295 ; Thomson V. Davenport, 9 B. & Cressw. 78, 86, 88 ;• Bickerton v. Burrell, 6 M. & Selw. 383 ; Paley on Agency, by Lloyd, 248-245 ; Jones v. Littledale, 6 Adolph. & Ellis, 490; Seymour v. Pychlau, 1 B. & Aid. 14, 17, 18; Kayner v. Grote, 15 Mees. & Wels. 369. See ante, § 406, note. ^ Ante, §§ 266-270 ; Thomson v. Davenport, 9 B. & Cressw. 78 ; Higgins v. Senior, 8 Mees. & Wels. 440 ; Ante, § 270. ' Thomson v. Davenport, 9 B. & Cressw. 78, 86, 88. " Paley on Agency, by Lloyd, 334, 343-346 ; Rich v. Coe, Cowp. 636 ; Precious v. Able, 1 Esp. 350 ; Kymer v. Suwercropp, 1 Campb. 109 ; Waring ». Favenck, 1 Campb. 85 ; Speering v. De Grave, 2 Vern. 643 ; Ante, §§ 280- 300, 431-433. * Waring v. Favenck, 1 Campb. 85 ; Paley on Agency, by Lloyd, 245, 334 ; Heald v. Kenworthy, 28 Eng. Law and Eq. 537 ; 10 Exch. 739. Mr. Bell, in his excellent Commentaries on Mercantile Jurisprudence, 1 Bell, Comm. § 418 (4th ed.) ; Id. pp. 491, 492 (5th ed.), has summed up the whole doctrine on this subject in a very satisfactory manner. " Third parties, who have dealt with the factor, have their claim against the estate of the principal as if they had dealt with himself. The agent's contract entered into, factorio nomine, the principal's name being disclosed, forms a good ground of action or claim against the principal, provided the power is proved. And in this case there 516 AGENCY. [CH. XVII. § 446 a. The fact that the agent has contracted in his own name in writing, yet with the assent of his principal and for his benefit, will not exclude the principal from liability, unless exclu- will be no action against the factor, unless the principal is abroad. Such is the case of a rider to a manufacturing house. In taking an order in the name of the house, he binds the house to furnish the article. In such cases, the claim may either be, first, against the principal, as the buyer of goods, for the price ; or, secondly, against the principal, as the seller of goods, for delivery of the goods, or for damages. In the former case, the claim is merely for a dividend, even where the goods are still with the agent or factor, and distinguishable. In the latter, the claim also is merely personal. But where the agent is neutral, as a general commission-agent, who unites the business of a custodier with that of a broker, acting for both parties, the property may, in such situations, be held as- transferred, so as to vest a real right in the buyer. Where the contract is not in the principal's name, but generally as with a factor, the election will be with the third party to hold to the credit of the factor, or to seek his remedy against the principal. And the remedy against the principal will not be hurt, either, first, by any private agreement between the principal and the factor, that the factor alone shall be responsible ; or, secondly, where the principal has paid the price to his agent, who has squandered it ; unless the day of payment has been aUpwed to pass, and the principal has been led to believe that the agent alone was relied on ; or, thirdly, by the circumstance of the factor failing, with a large balance due to the principal. Where notice is given of the prin- cipal, and the third party chooses to rely on the factor, he will be entitled so to do, but will not also have his claim against the principal. Even where the factor contracts in his own name, the principal is bound to the third party, on his name and interest being disclosed. But, in such case, the principal and factor will reciprocally have the benefit of their private stipulations, as to responsibility, and of their correlative rights, in respect to the state of the balance in account between them. A del credere commission affects the set- tlement only between the principal and factor, relative to the moneys to be recovered from third parties. So, a factor with a del credere is responsible that the buyer shall pay the price. But although the factor will, on the buyer's failure (himself being insolvent), have the beneficial interest in claiming on the buyer's estate, he is not so much a creditor, as, on the one hand, to deprive the buyer of the benefit of retention or compensation against the principal ; nor, on the other, to give his own creditors the benefit of the claim against the buyer, while they pay only a dividend to the principal. In the former case, compensation or retention against the principal will discharge the guarantee ; in the latter, the principal will have his claim against the buyer on the bank- ruptcy, and also against the factor on his guarantee. Claims may be made by third parties against the estate of the principal, in consequence of the acts of the agent, though unauthorized by the principal. Thus, the representations of the agent, in the strict course of the contract, will be taken to form a part of the contract with the principal ; and the concealment or misrepre- sentation of the agent will also affect the principal. In the same way, notice to a factor or agent will be held as notice to the principal, provided such §§ 446 0-448.] THIRD PERSONS AGAINST PRINCIPALS. 517 sive credit is given to the agent. Thus, if an agent with the assent of his principal and for his benefit draws a bill of exchange in his own name on his principal, which is taken by a party in the business of the principal (as to raise money for him), al- though the principal may not be directly bound as drawer of the bill, but the agent only, yet the party advancing the money on the bill may have an action for money paid, Ibid. See also Seymour v. Pychlau, 1 B. & Aid. 14, 16-19. ^ See Abbott on Shipp. Pt. 2, ch. 3, §§ 3-18, and notes to Amer. ed. 1829; Paley on Agency, by Lloyd, 246, 246 ; Rich. v. Coe, Cowp. 637 ; Paley on Agency, by Lloyd, 243-246; Ante, §§ 294, 434; Post, § 450. ^ Per Bayley, J., in Thomson v. Davenport, 9 B. & Cressw. 88, 89; Paley on Agency, by Lloyd, 243, 244, 248-253 ; Smith on Merc. Law, 66, 66 (2d ed.) ; Id. pp. 122, 123 (3d ed. 1843) ; Ante, § 434. But see Waring v. Favenck, 1 Campb. 85 ; Kymer v. Suwercropp, 1 Campb. 109 ; Smyth v. Ander- son, 7 C. B. 21. » Ante, §§ 288, 291, 433, 434 ; Porter v. Talcott, 1 Cowen, 369 ; 3 Chitty on Com. & Manuf. 204 ; Wyatt v. Marquis of Hertford, 3 East, 147 ; Cheeves V. Smith, 16 John. 276 ; Clealand v. Walker, 11 Ala. 1058; Hyde v. Paige, 9 Barbour, 150; French v. Price, 24 Pick. 13; Filter v. Commonwealth, 31 Penn. St. 406. See Johnson v. Cleaves, 16 N. H. 332 ; Marsh v. Pe'dder, 4 Campb. 267 ; 1 Liverm. on Agency, 207-217 (ed. 1818) ; Paley on Agency, §§448, 449.] THIRD PERSONS AGAINST PRINCIPALS. 619 So, if the vendor had suffered the day of payment for the goods to pass by, without demanding payment, and had thereby induced the principal to suppose that credit was exclusively given to the by Lloyd, 245-247, 260-253 ; Smith on Merc. Law, 65, 66 (2i ed.) ; Id. B. 1, ch. 2, § 4, pp. 121, 122 (3d ed. 1843). Mr. Lloyd, in his edition of Paley on Agency, 246-254, has made a summary of the principal cases. Although it is somewhat long, its practical utility has induced me to cite it at large in this place. " Indeed, there are several ways, in which the liability of the principal may be affected, in purchases made by his agent, of which the following sum- mary may be useful. 1st. The purchase may be made by the broker, ex- presssly for and in the name of his principal. In that case, if the principal be debited by the seller, he only, and not the broker, will be liable. 2d. A bro- ker may purchase in his character of broker, for a known principal ; but the seller may choose, nevertheless, to take him for his debtor rather than the prin- cipal, in whose credit he may not have the same confidence ; and, after this deliberate election, the seller cannot afterwards turn round and charge the prin- cipal. 3d. The broker may buy in his own name, without disclosing his princi- pal ; in which case, the invoices wiU, of course, be made out to him, and he will be debited with the account. K now, before payment, the seller discover that the purchase was in fact made for another, he may, at his choice, look for payment either to the broker or the principal, — to the former upon his per- sonal contract — to the latter on the contract of his agent ; and the adoption of the purchase by the principal will be evidence of the agent's authority. But, 4th. If, after the disclosure of the principal, the seller lie by and suffer the principal to settle in account with his broker for the amount of the purchase, he cannot afterwards charge the former, so as to make him a loser, but wiE be deemed to have elected the broker for his debtor. And, 5th. If the principal be a foreigner, it seems, that, by the usage of trade, the credit is to be consid- ered as having been given to the English broker, and that he only, and not the foreign buyer, will be liable. That question, however, is for the jury. 6th. There is still an intermediate case, where, upon a purchase by a broker, the seller, knowing that he is acting as broker in the transaction, but not for whom, makes out the invoice to him, and debits him with the price ; can the seller after- wards, when the name of the principal is made known to him, substitute him as the debtor, and call upon him for payment ? On the one part, it is said, the prin- cipal, in debiting the broker, can have exercised no election ; because election implies a preference, and there can be no preference, when the principal is un- known. On the other part, it is answered, that the seller might have known by simply asking the question, and that the omitting to make the inquiry is decisive evidence of a deliberate preference of the broker. The court of King's Bench has decided, that the principal, in such case, is not discharged ; but the decision has not been considered very satisfactory, and is certainly not implicitly acquiesced in. 7th. It was laid down by Parke, J., in a case which underwent much consideration, that wherever the broker has stated to his principal, and the latter has bond fide adopted, a contract different from that under which the purchase was actually made, the seller cannot call upon the principal for payment ; because the seller sues on the contract under which the goods were 520 AGENCY. [CH. XTII. agent, and upon the faith of that he had paid over the amount to the agent, or settled it in account with him, the principal would be discharged.^ [But in all these cases, it seems to be essential, really sold, and is, therefore, bound to show that the. principal authorized or ratified that contract, atid not a different one, substituted by the broker. And, although the court hesitated to adopt this proposition in its full extent, yet they were unanimously of opinion, that, if the seller have furnished the broker with the means of so misrepresenting the contract to his principal, and the latter have actually paid the broker, according to the terms communicated to him, he will thenceforth be released from all liability to the seller. 8th. Payment by the agent will, of course, discharge the principal. And it is a general princi- ple, that if the creditor voluntarily give an enlarged credit to the agent of the debtor, or adopt a particular mode of payment whereby the principal is placed in a worse situation than he would otherwise have been, the liability of the original debtor is discharged ; and, therefore, if a creditor, voluntarily, and for his own accommodation, take a security from an agent of the debtor, who afterwards fails, having in his hands funds of his principal adequate to the pay- ment of the demand, he cannot afterwards resort to the principal. But, if the creditor take the security, not voluntarily and for his own convenience, but be- cause he is unable at the time to procure cash, or if he take it conditionally, and not as absolute payment, or if the principal be in no respect prejudiced by the accommodation afforded to the debtor, then, to whatever extent the indul- gence may have been carried, the principal will not be released. It seems, in short, that nothing will operate as a discharge to the principal, which could, not be pleaded as payment, or as accord and satisfaction between the creditor and the agent. And, therefore, a receipt, given by the creditor to an agent or broker, does not necessarily of itself operate as a discharge to the principal ; nor has it that effect, unless the principal appear to have dealt differently with his agent in consequence of the receipt, as by passing it in his accounts, and giving him further credit upon the faith of that voucher. But, where the receipt is the means of accrediting the agent with his principal, or altering the . situation of the latter, the creditor can only resort to the agent. Accordingly, in the insurance trade, where the usage is for the broker of the assured to charge his employer with premiums as paid to the underwriter, though in fact there be no money paid, but a running account kept between the broker and underwriter, it is held, that the receipt in the policy, whereby the underwriter confesses himself paid the premium, is conclusive, as between him and the prin- cipal. In case of the sale of goods to an agent, payable upon time, if the time of payment has not elapsed, the principal, whether known or unknown, cannot, by a premature payment to, or settlement with, the agent, exonerate himself from responsibility to the vendor, unless it is clear, from all the circum- stances, that an exclusive credit was given to the agent. Smith on Merc. Law, ' Kymer v. Suwercropp, 1 Campb. 109 ; Paley on Agency, by Lloyd, 243- 246 ; Smith on Merc. Law, B. 1, ch. 5, § 4, pp. 121, 122 (3d ed. 1843). See Smyth V. Anderson, 7 C. B. 21. * § 449.] THIRD PERSONS AGAINST PRINCIPALS. 521 that the vendor should in some way have either deceived the principal, or induced him to alter his position and accounts tow- ards his agent, before he is deprived of his remedy against the principal. And it is now settled, that the simple fact that the principal has paid his agent the funds with which to pay the plain- tiff, does not deprive the plaintiff of his right to look to the prin- cipal, if the agent fail to pay over according to his orders.^ So, in 65, 66 (2d ed.) ; Id. B. 1, ch. 5, §§ 121, 122 (3d ed. 1843) ; Waring v. Favenck, 1 Campb. 85 ; Kymer v. Suwercropp, 1 Campb. 109. In this last case. Lord EUenborough said, "A person selling goods is not confined to the credit of a broker, who buys them ; but may resort to the principal, on whose account they are bought ; and he is no more affected by the state of accounts between the two, than I should be were I to deliver goods to a man's servant, pursuant to his order, by the consideration of whether the servant was indebted to the master, or the master to the servant. If he lets the day of payment go by, he may lead the principal into the supposition, that he relies solely on the bro- ker ; and if, in that case, the price of the goods has been paid to the broker on account of this deception, the principal shall be discharged. But here, pay- ment was demanded of the defendant on the several days it became due, and no reason was given him to believe that his broker alone was trusted. He has received a great part of the coffee, and enjoyed the benefit of it ; the right of the vendors is entire, unless he has paid them, or some person authorized by them to receive payment. Kenyon & Co. had no such authority ; therefore, he is still liable. The rest of the coffee was stopped, only to prevent its getting into the hands of the insolvent brokers ; and, as payment was to precede the delivery, it was enough, if the plaintiffs, on being paid, were ready to have delivered it.'' [' Heald ». Kenworthy, 10 Exch. 739 ; 28 Eng. Law & Eq. 637. Parke, B., said, " If a man order an agent to buy goods, he is bound to see that his agent pays for them, and the giving of money to his agent for that purpose, does not amount to payment, unless the money be actually so applied. It is , true, the cases furnish dicta upon which some argument to the contrary may be hung. First, there is the dictum of Bayley, J., in Thomson v. Davenport, to the effect that, if the agent ' does make himself personally liable, it does not follow that the principal may not be liable also, subject to this qualification, that the principal shall not be prejudiced by being made personally liable, if the justice of the case is that he should not be personally liable.' He then goes on to say, ' K the principal has paid the agent, or if the state of ac- counts between the agent here and the principal would make it unjust that the seller should call on the principal, the fact of payment, or such a state of accounts, would be an answer to the action brought by the seller where he had looked to the responsibility of the agent.' That expression is somewhat vague, but it is quite true when properly understood. If, for example, the principal is induced, by the conduct of the seller, to pay his own agent, on the faith that the agent will settle with the seller, in such a case the seller would be precluded from recovering, as it would be unjust for him to do so. But, under ordmary 522 AGENCY. [CH. XVII. a recent case, M., the owner of a ship, applied to a broker to effect an insurance on it, and tlie broker signed a policy on be- half of Gr., an underwriter. The ship being lost, the broker settled with M., giving him a credit note. It was usual to pay credit notes at a month from their date. The broker had suffi- cient funds of G. to pay the loss, both at the time of signing the policy and at the giving of the credit note. Nearly three months after the credit note was given, and while the same was unpaid, the broker failed. It was held, that M. might still call upon G. for payment.!] § 450. Another exception may arise from the form of the con- tract, where, although it is authorized by the principal, and is in the course of his business, yet it is exclusively, in its form, and character, and operation, a contract between the agent and the third person .2 In such cases, the principal is not directly liable to such third person upon the contract, although, in some cases, he may be indirectly liable.^ Thus, where a contract is made under seal between the agent in his own name and a third per- son, the principal cannot sue or be sued thereon, although it may be authorized by him ; as, for example, in case of a charter-party, or a bottomry bond, sealed and executed by the master of a ship ; or in a contract, made by the agent under his own seal, for the purchase or sale of goods, or for a lease, or for any other thing to be done, where the covenants, although on behalf of the princi- pal, are exclusively in the names of the agent and the third person.* circumstances, the plaintiff is entitled to recover, unless he has either deceived the defendant or induced him to alter his position. This is the case of Wyatt ^ V. The Marquis of Hertford. So in the case of Kymer v. Suwercropp, the observations of Lord EUenborough are quite correct, as the fact of the seller's allowing the day of payment to pass may afford evidence of deceit, and of his having induced the principal to pay his agent. The same conclusion is to be drawn, from the judgment of my brother Maule, in Smyth v. Anderson, and his language is not at all at variance with the other decisions with reference to the effect of payment. He observes, ' Payment, however, is only put in the dicta to which I have adverted, as an instance of its being unjust or unfair that the seller should enforce the contract against the principal.' The result is, that, under the circumstances of the present case, the seller may recover against the principal." See also Smyth v. Anderson, 7 Com. 21.] ' Macfarlane v. Giannacopulo, 3 Hurl. & Norm. 859. 2 Ante, §§ 49, 160 a, 161, 278, 422, 434. » Ante, §§ 151, 160, 160 a, 161, 278, 422 ; Dubois v. Delaware & Hudson Canal Co. 4 Wend. 285 ; Hall v. Bainbridge, 1 Mann. & Gr. 42. * Ante, §§ 165-168, 160, 161, 162, note, 263, 273, 276, 276, 278, 279, 294, §§ 449-451.] THIRD PERSONS AGAINST PRINCIPALS. 523 § 451. In the next place, as to the liability of principals to third persons for the acts of their agents. This topic may be dismissed in a few words ; for the whole doctrine turns upon the 422; Abbott on Shipp. Pt. 3, ch. 1, § 2, pp. 163-165 (Amer. ed. 1829); Paley on Agency, 381-384 ; Wells v. Evans, 20 Wend. 251 ; Ante, § 49 note. Lord Tenterden, in his work on Shipping, Pt. 3, ch. 1, § 2, pp. 163-165, refers to this doctrine, in the following passage: "I have before observed, that the execution of a charter-party by the master, although said to be done on behalf of the owners, does not furnish a direct action, grounded upon the instrument itself, against them. This depends upon a technical rule of the law of England, applicable as well to this as to other cases, and not affected by the mercantile practice of executing deeds for, and in the name of absent persons ; the rule of the law of England being, that the force and effect, which that law gives to a deed under seal, cannot exist, unless the deed be executed by the party himself, or by another for him, in his presence, and with his direction ; or, in his ab- sence, by an agent, authorized to do so by another deed; and, in every such case, the deed must be made and executed in the name of the principal. The agent, indeed, either of the owner or merchant, may, and sometimes does, exe- cute a charter-party, and covenant in his own name for performance by his principal, so as to bind himself to answer for his principal's default, by force of the deed. And, in an action to recover freight or demurrage, claimed in pur- suance of a charter-party by deed, it has been held, the declaration must be specially framed on the deed itself. If such a charter-party be made between the master and the merchant, in pursuance of which goods are delivered to the merchant and his partners, the freight cannot be recovered in an action upon the case, brought by the owners against the merchants. So, if the owner exe- cute a deed to the merchant,. containing the usual covenant for a right delivery of the cargo, he cannot be sued by the merchant for not delivering it, in an action upon the case, grounded on the bill of lading signed by the master. But, where a charter-party, under seal, was made by the master in that character, with merchants who did not know that he was also a part-owner in the ship, as in f^ct he was, it was held, that they might sue h^m and the other owners in an action upon the case, for a breach of such general duties as were not inconsistent with the stipulations of the charter-party, such as the not providing necessaries for the voyage, and employing a negligent and unskilful master. And, whether the instrument be under seal or not, an action at law, grounded upon it, must be brought in the name of the party to it, and not in the name of another, to whom he may have assigned his interest. And, therefore, the purchaser of a ship, previously chartered, cannot sue for the freight earned under the charter- party in his own name, although payment to him will be a good discharge to an action brought in the name of the seller, at least if the purchase be made before the ship sails on the voyage. In like manner, where goods were shipped, in pursuance of a charter-party made by the master with one Partridge, and whereby he engaged to receive a cargo of fruit from the agents or assigns of Partridge, and deliver the same to him or his assigns ; and, upon a shipment, he signed a bill of lading, stating the goods to have been shipped by one Strange, by order of Rovedino & Moores, to be delivered to the order of Moores, and 524 AGENCY. [CH. XTII. obvious maxim, tliat he, who acts by another, acts by himself: " Qui facit per alium, facit per se." ^ Hence it is, that the deliv- ery of goods by a third person to an agent, and the acceptance of goods by an agent for his principal, is, in contemplation of law, freight to be paid according to the tenor of the contract of affreightment ; it was held, that Moores could not maintain an action against the master for negli- gence in the stowing of the fruit. Another technical rule of the law of England, applicable also to the contract by charter-party, under seal, should be noticed in this place. If a charter-party is expressed to be made between certain par- ties, as between A. and B., owners of a ship, whereof C is master, of the one part, and D. and E., of the other part, and purports to contain covenants with C, nevertheless, C. cannot bring an action in his name upon the covenants expressed to be made with him, nor give a release of them, even although he seals and delivers the instrument. But if the charter-party is not expressed to be made between parties, but runs thus : ' This charter-party indented wit- nesseth, that C, master of the ship W., with consent of A. and B., the owners thereof, lets the ship to freight to E. and F. ; and the instrument contains covenants by E. and F., to and with A. and B. ; in this case, A. and B. may bring an action upon the covenants, expressed to be made with them ; although, unless they seal the deed, they cannot be sued upon it. This latter, therefore, is the most proper form." See also Atty v. Parish, 4 Bos. & Pull. 104. In Tilson V. Warwick Gas Light Co. 4 B. & Cressw. 962, 968, Bayley, J., said, " I am not convinced by the case of Atty v. Parish, that, where a contract ap- pears upon the face of a declaration to be such, that the plaintiff may recover, whether the contract be by deed or not, it is necessary to declare upon the deed, if there be one. The strong impression of my mind is, that, upon prin- ciple, although there be a deed between the parties, yet, if there be a debt, independent of the deed, the amount of which, however, is to be ascertained by the deed, the existence of the deed will not prevent the party fi-om recovering that debt upon the common Counts. And where there was a charter-party, under which the cargo was to be sent alongside the ship, at the merchant's expense, the master rendering the customary assistance with his boats and crew, and the cargo lying about thirty yards from the edge of the wharf, the master applied to the defendant's factor for laborers, to remove it into the boats, and he refused, saying he would abide by the charter-party, and the master hired laborers for the purpose, it was held, that the ship-owner might recover such expense in an action of assumpsit, notwithstanding the charter-party." Fletcher V. Gillespie, 3 Bing. 635. See Banorgee v. Hovey, 5 Mass. 11 ; Emball v. Tucker, 10 Mass. 192. It is not, in the present state of the authorities, easy to say, in what cases the principal may or may not sue or be sued, upon written and sealed contracts of his agent, either directly or indirectly, as the cases do not seem to be in perfect harmony with each other, or to furnish any very clear or definite rule. See ante, §§ 49, note, 160, 161, 275-278, 294, 422. 1 Ante, §§ 134-139 ; Smith on Merc. Law, 69 (2d ed.) ; Id. B. 1, ch. 5, § 4, pp. 127-130 (3d ed. 1843) ; Paley on Agency, by Lloyd, 293 ; 1 Bell, Comm. § 418 (4th ed.) ; Id. p. 493 (5th ed.). § 451.J THIRD PERSONS AGAINST PRINCIPALS. 525 a delivery to, and acceptance by, the principal.^ Hence, also, a delivery of goods to the servant of a carrier, in the course of his employment, is a delivery to the carrier himself, and binds him to responsibility to the owner.^ A delivery of goods to a master of a ship is a delivery to the owner or employer. [But a master of a ship, or other agent, has no power to bind his principal by a receipt for goods as delivered, which in fact, never were deliv- ered.^] A delivery of goods to the consignee, who is agent of the shipper, is a delivery to the latter.* So, payments, made by a third person to the agent, in the course of his employment, is payment to the principal; and, whether actually paid to the principal, or not, by the agent, it is conclusive upon him.^ So, if the money is, from any circumstances, recoverable back, as, if it is paid by mistake, or upon a consideration that has failed, the principal will be liable to repay it, although he may never have received it from his agent.^ So, a tender to an authorized agent will be a good tender to the principal.^ Notice, also, to an agent, in the course of his employment, is notice to the principal.^ So, the representations, declarations, and admissions of the agent, in the course of his agency, are deemed a part of the res gestm, and equally obligatory upon the principal, as if made by himself.^ So, a demand, made of an agent, of goods pawned to his princi- pal, upon a tender of the money due, will, upon the refusal of the agent, if usually intrusted to deliver up such property, amount to evidence of conversion to bind the master.^" ' Smith on Merc. Law, 69 (2d ed.) ; Id. pp. 127-130 (3d ed. 1843) ; Paley on Agency, 693 ; Mead v. Hamond, 1 Str. 606 ; 3 Chitty on Com. & Manuf. 207. = Ibid. ; Staples v. Alder, 2 Mod. 309 ; Taylor v. , 2 Ld. Raym. 792. ' Grant v. Norway, 2 Eng. Law and Eq. 337 ; Hubbersty v. Ward, 18 id. 661 ; Coleman «. Riches, 29 id. 323. * Abbott on Shipp. Pt. 2, ch. 2, §§ 2, 8, pp. 90-99 (Amer. ed. 1829). * Ante, § 429. " Paley on Agency, by Lloyd, 293 ; Carey v. Webster, 1 Str. 480 ; Mathew ». Haydon, 2 Esp. 509 ; 3 Chitty on Com. & Manuf. 207 ; Ante, §§ 408, 413, 435. ' Anon. 1 Esp. 349 ; Goodland ». Blewith, 1 Campb. 477 ; 3 Chitty on Com. & Manuf. 208 ; Ante, §§ 103, 147. ^ Ante, §§ 140, 140 a; 3 Chitty on Com. & Manuf. 209. ' Ante, §§ 134^139 ; 3 Chitty on Com. & Manuf. 208, 209. " Jones V. Hart, 2 Salk. 441 ; s. c. Ld. Raym. 738 ; Com. Dig. Adim on 526 AGENCY. . [CH. XVII. § 452. In the next place, as to the liability of the principal, to third persons, for the misfeasances, negligences, and torts of his agent. It is a general doctrine of law, that, although the prin- cipal is not ordinarily liable (for he sometimes is) in a criminal suit,i for the acts or misdeeds of his agent, unless, indeed, he has authorized or co-operated in those acts or misdeeds ; yet, he is held liable to third persons in a civil suit for the frauds, deceits, concealments, misrepresentations, torts, negligences,^ and other malfeasances, or misfeasances, and omissions of duty, of his agent, in the course of his employment, although the principal did not authorize, or justify, or participate in, or, indeed, know of such misconduct, or even if he forbade the acts, or disapproved of them.^ ihe case for Negligence, A. 1-A. 6 ; Paley on Agency, by Lloyd, 305 ; 4 Bac. Abridg. Master and Servant, K. ; Ante, § 247. ' Attorney-General v. Siddon, 1 Tyrwh. 41 ; Rex v. Goutch, 1 Mood. & Malk. 437 ; Rex v. Almon, 1 Leading Crim. Gas. 241 and note ; Paley on Agency, by Lloyd, 294-298 ; Id. 305, 306 ; 3 Chitty on Com. & Manuf. 209, 210 ; Hunter v. The State, 1 Head (Tenn.), 160 ; Smith on Merc. Law, B. 1, ch. 5, § 3, p. 180 (3d ed. 1843). ' Barber ». Britton, 26 Vt. 112 ; Linsley v. Lovely, id. 123. 3 Southwiok V. Estes, 7 Gush. 386 ; Reeves v. State Bank, 8 Ohio St. 476 ; Philadelphia Railroad Go. v. Derby, 14 How. 468 ; Hunter v. The Hudson River Iron Go. 20 Barb. 507; Ghitty on Com. & Manuf. 208-210; Paley on Agency, by Lloyd, 294-296, 301-307 ; Smith on Merc. Law, 70, 71 (2d ed.) ; Id. B. 1, ch. 5, § 3, pp. 127-130 (3d ed. 1843) ; Ante, §§ 139, 217, 308-310; Doe V. Marten, 4 T. R. 66, per Lord Kenyon ; Bush v. Steinman, 1 Bos. & Pull. 404; Att'y-Gen'l ». Siddon, 1 Tyrwh. 41; Ante, §§ 308, 311, 316-319; Milligan v. Wedge, 12 Adolph. & Ellis, 737, 742 ; Quarman v. Burnett, 6 Mees. & Wels. 499 ; Weed v. Panama Railroad, 3 Smith (N. Y.), 369 ; Locke V. Stearns, 1 Met. 660 ; Penn. Steam Navig. Go. v. Hungerford, 6 Gill & John. 291. [If a large number of employees on a railroad suddenly refuse to work, and without any good cause, the company are liable for damages arising from the delay in forwarding freight thereby caused. Blackstone v. N. Y. & Erie Railroad, 6 Sfaith (N. Y.), 48.] [* Where a mortgage of a railroad had been executed to trustees for the benefit of bondholders, and the trustees, after entering into possession, leased the railroad to others, but, under a verbal agreement, continued to operate the road for the lessees and receive the earnings, paid the expenses, selected, contracted with, and dis-, charged the persons employed on the road, and exercised all the powers usually exercised by railroad corporations over their own roads, the trustees were held personally responsible for an injury sustained by reason of the negli- gence of one of the persons so employed. Ballou v. Farnum, 9 Allen, 47. Where the defendant, a railroad company, employed a day laborer, paying him monthly, but at a fixed rate for each day's labor, and this laborer took down § 452.] THIRD PERSONS AGAINST PRINCIPALS. 527 In all such cases, the rule applies, respondeat superior ; and it is founded upon public policy and convenience ; for in no other way could there be any safety to third persons in their dealings, either directly with the principal, or indirectly with him through the instrumentality of agents.^ In every such case, the principal holds out his agent, as competent, and fit to be trusted; and the bars in the fence on the side of the railroad track for the purpose of pass- ing with a team, being engaged at the time in business for himself, and left them down, whereby the plaintiff's horses escaped from his adjoining field on such track, and were killed by the passing engine of the defendant, and it was proved that it was the duty of said laborer if he saw any thing amiss after his day's work was over, to give attention to it without being specially directed so to do, it was held that the defendants were liable to the plaintiff in damages ; and it did not affect the plaintiff's legal rights that said laborer was intoxicated at the time. Chapman v. N.jY. Central K. K. Co., 33 N. Y. Ct. Ap. 369. But where a railway company agreed to carry A.'s horse free of charge, and atthe end of the journey the station-master demanded payment for the horse, and on A.'s refusal gave A. in custody to the police, till it was ascertained that all was right, it was held that A. had no right of action against the company, inasmuch as the company would have had no right to detain A. , even had he wrongly taken the horse on the train without paying, and therefore there was no implied authority from them to the station-master to do so. Poulton v. London & S. W. Railway Co., Law Rep. 2 Q. B. 634. But where the servant of a railway company arrested the plaintiff under circumstances which, if his view of the facts had been correct, would have justified the arrest, the company was held liable. Goff v. Great Northern Railway, 30 L. J. Q. B. 148. The defendant was engaged in constructing a sewer, and employed men with horses and carts. The men were allowed an hour for dinner, but were directed not to go home or to leave their horses. One of the men, however, went home about a quarter of a mile out of the direct line of his work to dinner, and left his horse unattended in the street before his door. The horse ran away and injured the plaintiff's fence. It was held that the jury were justified in finding that the man was acting within the scope of his employment. Whatman v. Pearson, Law Rep. 3 C. P. 422.] ' Ante, § 308; 1 Black. Comm. 431, 432; Abbott on Shipp. Pt. 2, ch. 2, § 11 ; Ellis V. Turner, 8 T. B. 533 ; Bush v. Steinman, 1 Bos. & Pull. 404 ; Laugher v. Pointer, 5 B. & Cressw. 647 ; Randleson v. Murray, 8 Adolph. & Ellis, 109 ; Milligan v. Wedge, 12 Adolph. & Ellis, 737 ; Quarmau v. Bur- nett, 6 Mees. & Wels. 499 ; Rapson v. Cubitt, 9 Mees. & Wels. 710 ; Win- terbottom ». Wright, 10 Mees. & Wels. 109, 111; Ante, §§ 308, 311; Wil- kins V. Gilmore, 2 Humphreys, 140 ; Leggett v. Simmons, 7 Sm. & Mar. 348 ; Penn. Steam Co. v. Hungerford, 6 Gill & John. 291 ; Johnson v. Barber, 6 Gilman, 426 ; Harris v. Mabry, 1 Iredell, 240. [*A joint action will lie against principal and agent, for a personal injury caused by the negligence of the lat- ter (in the absence of the former) in the course of his employment. Phelps v. Wait, 80 N. Y. Ct. Ap. 78.] 528 AGENCY. [CH. XVII. thereby, in effect, he warrants his fidelity and good conduct in all matters within the scope of the agency .^ § 453. A few cases may serve to illustrate this doctrine. Thus, a carrier will be liable for the negligence of his agent, by which the goods committed to his custody are damaged or lost.^ So, he will be liable for the tortious conversion of the property by his ageut.^ So, the owner of a ship will be liable for damages and losses, arising to a shipper of goods by reason of the negli- gence, -the fraud, the unskilfulness, or the tortious acts of the master.* So, if the master of a ship should negligently run down, or come into collision with another ship, the owner would be liable to the party injured for the damages occasioned thereby.^ So, if a servant should negligently drive his master's carriage or ' See the opinion of Lord Holt in Lane v. Cotton, 12 Mod. 490 ; Paley on Agency, by Lloyd, 294, 301-807 ; 4 Bac. Abridg. Master and Servant, K. ; Stickueye. Munroe, 44 Maine, 204; Ante, §§ 11-13, 315, 316, 319; Hern». Nichols, 1 Salk. 289. Mr. Justice Blackstone, in his commentaries, gives a different reason, and says, " We may observe, that, in all the cases here put, the master may be frequently a loser by the trust reposed in his servant, but never can be a gainer ; he may frequently be answerable for his servant's misbehavior, but never can shelter himself from punishment, by laying the blame on his agent. The reason of this is still uniform and the same : that the wrong done by the servant is l6oked upon in law as the wrong of the master himself; and it is a standing maxim, that no man shall be allowed to make any advantage of his own wrong.'' 1 Black. Comm. 432. It seems to me, that the reason here given is artificial and unsatisfactory, and assumes, as its basis, a fact, which is the reverse of the truth in many cases ; for the master is liable for the wrong and negligence of his servant, just as much, when it has been done con- trary to his orders and against his intent, as he is when he has co-operated in or known the wrong. 2 Story on Bailm. §§ 488-583 ; 1 Bell, Comm. §§ 397-400 (4th ed.) ; Id. pp. 463-465 (5th ed.) ; Coggs «. Bernard, 2 Ld. Eaym. 909, 919, 920. = Ante §§ 310, 315, 316 ; Morse v. Slue, 1 Vent. 238 ; s. c. 1 Mod. 85. * 4 Bac. Abridg. Master and Servant, K. ; Ante, §§ 816-317 ; Abbott on Shipp. Pt. 2, ch. 2, §§ 6-8, pp. 94-98 (Amer. ed. 1829) ; Id. p. 99, note (1), and cases there cited ; Paley on Agency, by Lloyd, 297, 298. 5 Abbott on Shipp. Pt. 2, ch. 2, § 11, and note (1), (Amer. ed. 1829) ; and cases there cited; The Thames, 5 Rob. 345; The Dundee, 1 Hagg. Admir. 109 ; The Woodrop Sims, 2 Dodson, 88 ; The Neptune the 2d, 1 Dodson, 467 ; Stone v. Ketland, 1 Wash. Cir. 142 ; Ante, §§ 315-317 ; Shaw v. Keed, 9 Watts & Serg. 72. [* And a railroad company is liable for an injury result- ing from a collision occasioned by the wilful misconduct as well as by the negli- gence of an engineer in its employ. New Orleans, &c., R. Co. v. AUbritton, 38 Miss. 242.] § 453.] THIRD PERSONS AGAINST PRINCIPALS. 529 cart,^ as to overturn another carriage, or to run over an individual, and do him injury [or leave his master's cart in the street, where it is struck by a third person, and the plaintiff thereby injured ^J, the master would be liable for the damages.^ [So, if a person directs his servant to remove the snow and ice from the roof of his house, and through the negligence of the servant, or of a stranger employed by him, or of a friend who volunteers to assist him, a passenger in the street is injured by the ice, the master is liable.* So, if a man's servant wrongfully pile up his master's wood in the highway and thereby an injury is caused to a travel- ler, the master is responsible, although he was sick at the time, and knew nothing of th^ fact.® Perhaps the form of the action against the master must be case and not trespass, unless he per- sonally ordered the particular wrongful act.^] So, if a servant of a smith should injure a horse in shoeing him, or an assistant of a surgeon should treat a patient with gross want of skill, the principal would be liable for the damages.'^ [So, where the defendant hired a laborer for six weeks, at weekly wages, and in that time the plaintiff, not knowing of such arrangement, employed the same laborer to do a job for him, which was being done, when the defendant claimed and received of the plaintiff payment for the job, on the ground that the laborer's earnings during the six weeks belonged to him, the defendant was held responsible to the plaintiff for damages arising from the negli- ' [And although the horse and vehicle belong to the agent, yet if it is used by him about his master's business with his knowledge and consent, and by the agent's negligence is driven against another horse, the master is liable although the agent was also going on private business of his own. Patten v. Rea, 2 J. Scott (n. s.) 606], » lUidge M. Goodwin, 5 C. & P. 190. ' Jones V. Hart, 2 Salk. 441 ; Brucker v. Fromont, 6 T. R. 659 ; Morley ». Gaisford, 2 H. Bl. 442 ; McManus v. Crickett, 1 East, 107, 108 ; John- son !>. Small, 5 B. Monr. 25; Paley on Agency, by Lloyd, 295; Booth v. Mister, 7 Carri & Payne, 66. See Quarman v. Burnett, 6 Mees. & Wels. 499 ; Post, §§ 453 a, 453 b, 463 c. * Althorp V. Wolfe, 8 Smith (N. Y.), 355. And see Booth v. Mister, 7 C. & P. 66. ^ Harlow ». Humiston, 6 Cowen, 189. « Yerger v. Warren, 31 Penn. St. 319 ; Railroad Co. v. Wilt, 4 Whart. 143 ; The Thames Steamboat Co. ». Housatonic Railroad Co. 24 Conn. 40. ' Paley on Agency, by Lloyd, 298 ; 4 Bac. Abridg. Master and Servant, K. ; Ante, § 310. A.GEI7CT. 3* 530 AGBNCT. [CH. XTII. gent manner in which the work — thatching wheat — was per- formed. i] So, if an agent should sell a piece of cloth, and warrant it to be good, an action of deceit would lie against the master.^ So, if an agent should fraudulently sell false jewels, or should fraudulently deceive a third person, in the matter of his agency, the principal even if not co-operating in the act, would be liable therefor.^ § 453 a. But very nice questions may arise, and often do arise, as to the person who, in the sense of the rule, is to be deemed the principal or employer in particular cases. Suppose, for ex- ample, a person should hire a coach and horses of a stable-keeper for a day or a week or a journey, and they are driven by a coach- man who is furnished and hired by the stable-keeper ; and the coachman, during the time, should in driving be guilty of some negligent act, by which an injury should occur to a third person, the question would arise whether the stable-keeper or the hirer would be responsible therefor. It seems formerly to have been thought, that in such a <;ase the hirer was to be deemed the principal or employer, and, as such, responsible for the injury.* ' Holmes xi. Onion, 2 J. Scott (n. s.) 790. ° 4 Bao. Abridg." Master and Servant, K. ; Attorney-General v. Siddon, 1 Tynvh. 41, 46, 47 ; [* Udell v. Atherston, 7 H. & N". 172.] = Smith on Merc. Law, 70, 71 (2d ed.) ; Id. B. 1, ch. 6, § 3, pp. 127-130 (3d ed. 1843) ; Hem v. Nichols, 1 Salk. 289 ; Grammar v. Nixon, 6 Str. 653 ; Attorney-General v. Siddon, 1 Tyrwh. 41, 44, 48, 49 ; Paley on -Agency, by Lloyd, 301-303 ; Crockford v. Winter, 1 Campb. 125. See also Randleson v. Murray, 8 Adolph. & Ellis, 109 ; s. c. 3 Nev. & Perry, 239 ; Ante, §§ 308, 811 ; Milligan v. Wedge, 12 Adolph. & Ellis, 737 ; Hughes v. Boyer, 9 Watts, 566; Story on Bailm. § 403 a; Quarman v. Burnett, 6 Mees. & Wels. 499; Rapson v. Cubitt, 9 Mees. & Wels. 710 ; Winterbottom v. Wright, 10 Mees. & Wels. 109, 111. [*Iu Foster v. Green, 31 L. J. N. S. Exch. 158, where C, the cashier of the plaintiff, a banker, being indebted to the defendant, the latter applied to C, at the bank for payment, and C. handed him the amount in money of the plaintiff's, and obtained the defendant's signature to a check; the defendant receiving the money, believing it to be in payment of the debt due to him from C, and signing the check, believing it to be a receipt to C, and the transaction was entered in the bank books as a loan from the plaintiff to the defendant on the check : it was held, that, although the defendant had received the plaintiff's money, the plaintiff could not recover it back from him.] * See the opinion of Mr. Justice Heath, in Bush v. Steinman, 1 Bos. & Pull. 404, 409, and that of Holroyd, J., and Bayley, J., in Laugher v. Pointer, 5 B. & Cressw. 664, 568. §§ 453-453 J.] THIRD PERSONS AGAINST PRINCIPALS. 531 But the better opinion, maintained by the more recent authorities, is to the contrary ; ^ for, in such a case, the coachman is to be treated as in truth the servant of the stable-keeper, and continued in his employment, notwithstanding the temporary hiring ; and he coiild not at tlie same time be properly deemed the servant both of the stable-keeper and the hirer.^ The same rule would apply to a man who hires a carriage and horses to travel from stage to stage on a journey ; the carriage and horses are em- ployed for the benefit or pleasure of the traveller, and yet the law has never considered the traveller liable, but the owner only, for the negligence of the driver.^ The case of the hire of a hackney coach affords a stronger illustration. There the owner of the coach, and not the hirer for his temporary convenience or profit, will be held to be responsible for the negligence of the coachman.* Upon the like ground the hirer of a wherry on the Thames, to go from one place to another, would not be respon- sible for the conduct of the waterman ; nor the owner of a ship chartered for a voyage on the ocean, for the misconduct of the crew employed by the charterer .^ 453 b. But a case of a more nice character may easily be put, and, indeed, has undergone a judicial decision. Suppose a per- son to be the owner of a coach, and he hires from a job-master horses and a driver for the coach to draw them for a day or a ' Quarman «. Burnett, 6 Mees. & Wels. 499, 609, 510; Hughes v. Boyer, 9 Watts, 656 ; Weyrant v. H. Y. & H. Railroad, 3 Duer, 360. [Where the defendant was the registered proprietor of several cabs, in London, on which was his name as proprietor, Y., a licensed cab-driver hired of the defendant a cab and two horses for fifteen hours, at a fixed price, depositing his license with the defendant, but received the earnings of the cab during those hours, for his own benefit, the defendant exercising no control over him; Y., being employed by the plaintiflf to transport some luggage, lost a part of it by negli- gence : it was held, that the defendant was liable to the plaintiff for suph loss, partly by force of the Metropolitan Hackney Carriage Acts, St. 1 & 2 W. 4, c. 22, and St. 6 & 7 Vict. c. 86 ; Bowles v. Hider, 6 El. & Bl. 208.] '' Ber Littledale, J., in Laugher v. Bointer, 5 B. & Cressw. 647. See Chil- cot V. Bromley, 12 Ves. 114 ; Beedie «. London & Northwestern Eailway Co. 4 Wels., Hurls. &Gor. 256. ' Ibid. ; Sammell v. Wright, 6 Esp. 263 ; Dean v. Branthwaite, 6 Esp. 36. * Ibid. ; Ber Littledale, J., and Lord Tenterden, in Laugher «. Bointer, 5 B. & Cressw. 562, 563, 678, 579 ; McLaughlin ». Brior, 4 Mann. & Gr. 48. See Bard v. John, 26 Benn. St. 482. * Ber Lord Tenterden, in Laugher v. Bointer, 5 B. & Cressw. 578, 679. 532 AGENCY. [CH. XVII, drive, and, through the negligence of the driver, an injury is done to a third person ; the question would arise, who is responsible for the wrong, whether the owner of the coach or the owner of the horses, who also hires the driver. It has been recently adjudged, after no inconsiderable conflict of opinion in prior cases, that the owner of a coach is not, and that the owner of the horses is, under such circumstances, the responsible principal.^ [So in a recent case, where the owner of a ferry hired of T. for one day a steam-tug and crew to assist in. ferrying passengers across, and T. sent and paid the crew, and was paid by the owner of the ferry for the services of the tug and crew, and a passenger was injured while crossing by a breaking of the tackle of the tug, through the negligence of the crew, T. was held liable, whether the passenger did or did not also have a remedy against the owner of the ferry .2] The true distinctions and doctrines which govern or ought to govern the cases, were upon that occa- sion fully expounded by the learned judge,^ who delivered the opinion of the court. "Upon the principle" (said he), "that ' Qui facit per alium, facit per se,' the master is responsible for the acts of his servant ; and that person is undoubtedly liable, who stood in the relation of master to the wrong-doer ; he, who had selected -him as his servant, from the knowledge of, or belief in, his skill and care, and who could remove him for misconduct, and whose orders he was bound to receive and obey ; and whether ' Quannan «. Burnett, 6 Mees. & Wels. 499, 509, 510 ; Story on Bailm. § 403 a, note ; Post, 464. In the case of Laugher «. Pointer, 5 B. & Cressw. 547, where the owner of a carriage hired of a stable-keeper a pair of horses to drive it for a day, and the stable-keeper provided a driver, through whose negligent driving an injury was done to the horse of a third person, the Court of King's Bench were equally divided upon the question, whether the owner of the carriage was liable for the injury or not ; Lord Tenterden and Mr. J. Little- dale held him not liable, and Mr. J. Bayley and Mr. J. Holroyd held him liable. The opinions of the learned judges, on that occasion, exhausted the whole learning on the subject, and on that account should be attentively studied. The decision in Quarman v. Burnett affirmed the doctrine of Lord Tenterden and Mr. J. Littledale, and that decision has been uniformly ad- hered to in all the later cases. See Randleson v. Murray, 8 Adolph. & Ellis, 109 ; Milligan ». Wedge, 12 Adolph. & Ellis, 737 ; Rapson v. Cubitt, 9 Mees. & Wels. 710 ; Martin u. Temperly, 4 Q. B. 298 ; Reedie ». London & North- western Railway Co. 4 Wels., Hurlst. & Gor. 255. ^ Dalyell x>. Tyrer, 1 EL, Bl. & El. 899. ' Mr. Baron Parke. §§ 453 h, 453 c] third persons against principals. 533 such servant has been appointed by the master directly, or inter- mediately through the intervention of an agent, authorized by him to appoint servants for him, can make no difference. But the lia- bility by virtue of the principle of relation of master and servant, must cease, where the relation itself ceases to exist ; and no other person than the master of such servant can be liable, on the simple ground, that the servant is the servant of another, and his act the act of another. Consequently, a third person entering into a con- tract with the master, which does not raise the relation of master and servant at all, is not thereby rendered liable ; and to make such person liable, recourse must be had to a different and more ex- tended principle, namely, that a person is liable not only for the acts of his own servant, but for any injury which arises by the act of an- other person, in carrying into execution that, which that other person has contracted to do for his benefit. That, however, is too large a position, as Lord Chief Justice Byre says, in the case of Bush V. Steinmau, and cannot be maintained to its full extent, without overturning some decisions, and producing consequences which would, as Lord Tenderden observes, ' shock the common sense of all men ; ' not merely would the hirer of a post-chaise, hackney-coach, or wherry on the Thames, be liable for the acts of the owners of those vehicles, if they had the management of them or their servants, if they were managed by servants ; but the purchaser of an article at a shop, which he had ordered the shopman to bring home for him, might be made responsible for an injury committed by the shopman's carelessness, whilst pass- ing along the street." -^ § 453 c. Another case of a novel character, calling for the ex- position of the general principles applicable to this subject, recent- ly occurred in America. A brig, which was towed at the stern of a steamboat, employed in the business of towing vessels in the river Mississippi, below New Orleans, was, through the negli- gence of the master and crew of the steamboat, over whom those in charge of the brig had no control, brought into collision with a schooner lying at anchor in the river. A suit was brought by the owners of the schooner against the owner of the brig for the damages sustained by the collision ; and the question was, wheth- er the owners of the brig were liable therefor. It was held, upon ' See also Milligan ti. Wedge, 12 Adolph. & Ellis, 737 ; Winterbottom v. Wright, 10 Mees. & Wels. 109, 111 ; Post, § 454 a. 534 AGENCY. [CH. XVII. Ml argument, that they were not, upon the ground, that the master and crew of the steamboat were not the servants of the owner of the brig ; were not appointed by him ; did not receive their wages or salaries from him ; had no power to order or con- trol them in their movements ; and had no contract with the master and crew of the steamboat, but only through the master with the owners of the steamboat for a participation in the power of the steamboat, derived from the public use and employment thereof by the owners.^ ' Sproul V. Hemingway, 14 Pick. 1. Mr. Chief Justice Shaw, in delivering the opinion of the court in this case, said, " The owners of a vessel or coach are held liable for damages to third persons, occasioned by the negligence or unskilfulness of those who are in the management of the ship or coach. 1. Either because they are engaged or employed by them, are subject to their order, control, and direction, and so are to be deemed, either generally or for the particular occasion, their servants. 2. Or, in respect to their being engaged in the business or employment .of the owners, conducting and carrying on such business for the profit or pleasure of the owners, by reason of which the acts done in the prosecution of such business, shall be taken cimliier to be done by the employers themselves, and this, whether the persons whose negligence is the' cause of damage have been retained and employed by the principal him- self, or by the procuration of others, employed by him for the purpose. Tried by either of these principles, we think, that the defendant is not responsible for damages attributable to the carelessness or want of skill of the master and crew of the towing vessel. They were not the servants of the defendant; were not appointed by him ; did not receive their wages or salaries from him ; the defendant had no power to remove them ; had no power to order or control them in their movements ; had no contract with them, but only through them, with the owners of the steamboat, for a participation in the power, derived from the public use and employment of that vessel by her owners. After making such contract, it was perfectly in the power of fhe owners of the steam- boat to appoint another master, pilot, and crew, and the defendant would have had no cause of complaint. 3. Nor can the master and crew of the steamboat, in any intelligible sense, be considered as in the employment or business of the defendant, any more than a general freighting ship, her officers and crew, can be considered as in the employment of each freighter of goods, or the master and crew of a ferry-boat in the employment of the owners of each coach, wagon, or team, transported thereon. The steamboat was engaged in an open, public, distinct branch of navigation, that of towing and transporting vessels up and down the Mississippi, for a certain toll or hire, for the profit of the owners. The defendant seemed to have the same relation to the steamboat that a freighter has to a general ship, or a passenger to a packet. The defend- ant participated in the benefit but incidentally and collaterally; he did not share in the profits of the business, one, which, from its magnitude, may well be called the trade of towing. Such a trade may be considered as much a §§ 453 c, 453 dJ] thied persons against principals. 535 § 453 d. It will be observed, that the rule is generally laid down, that the principal is liable to third persons for the misfea- sances, negligences, and omissions of duty^ of their servants and agents. And the question, therefore, remains to be considered, public and distinct employment, as that of freighting or conveying passengers. The steamboat was in no sense in the possession of those whom she was em- ployed to tow. If it is contended, that the defendant is liable on the ground, that the steamboat was, for the time being, in his possession, occupation, or employment, then it would follow, that the defendant would be liable for the negligence of the officers and crew of the steamboat, as well whether the plain- tiff's vessel was struck by the defendant's vessel. The Burton, as struck by either of the other vessels towed, or by the steamboat herself; which cannot for a moment be contended. The case may well be illustrated by considering the condition of one of the side vessels, firmly lashed to the steamboat, and governed wholly by its movements. The payment for the privilege of being thus moved or transported, is precisely like freight paid for heavy luggage, timber, or spars, for instance, carried in or upon a ship. The whole conduct or management is entirely under the control of the master and crew of the towing vessel in the one case, as it is of the freighting ship in the other. If collision takes place between the side ship, thus firmly lashed, and another vessel, it is as directly attributable to the steamboat, and her officers and crew, as if the steamboat herself had come into collision with the other vessel. The towed ship is the passive instrument and means, by which the damage is don,e. But there is no difference, in this respect, between the condition of one of the side ships, and a ship towed astern, except this : that, on board the ship towed astern by means of a cable, something may and ought to be done by the master and crew, in steering, keeping watch, observing and obeying orders and signs ; and, if there be any want of care and skill in the performance of these du- ties, and damage ensue, then the case we have been considering does not exist ; the damage is attributable to the master and crew of the towed ship, and they and their owners must sustain it. The jury were so instructed at the trial, and it was left for them to find whether the damage was caused by the negligence of the one or the other. Then, supposing all duties faithfully performed on board the towed vessel, and the damage to be caused by the negligence or misconduct of the master and crew of the steamboat, there is no difference between the case of the side ship, which is wholly passive, and the ship astern, which is partially so. The case most nearly resembling this, perhaps, is that of a vessel chartered, where, for a certain time, the jrholeuse and benefit of the ship is transferred to the charterers, but the officers are appointed, and the crew engaged and subsisted by the owners ; in which case it is held, that the owners, and not the charterers, are responsible to third persons for any damage occa- sioned by the negligence of the officers and crew. Fletcher u. Braddick, 5 Bos. & Pull. 182. Under the circumstances of this case, the court are of opinion, that the defendant is not responsible for damage arising from the negligence or unskilfulness of the master, officers, and crew of the steamboat ; that the direction, in this respect, at the trial, was correct, and that there must be judg- ment on the verdict." 536 AGENCY. [CH. XYII. whether the same rule applies to cases of different agents, em- ployed by the same principal, where one by his misfeasance, or negligence, or omission of duty, does an injury to the other, as is applied to strangers to that relation. This, like many other questions of an important nature, arising from the complicated business of modern society, has not, until recently, become a sub- ject of judicial examination. Two classes of cases may be sug- gested: (1st.) Where the different agents are employed in the same business or employment by the principal; (2d.) Where different agents are employed in different businesses or employ- ments by the same principal. In respect to the former, the doc- trine at present maintained is, that the principal is not liable for any such injury, done to one agent by another agent, while en- gaged in the same business or employment. The reason assigned is, that the mere relation of master and servant or principal and agent, creates no contract, and therefore no duty, on the part of the principal,, that the servant or agent shall suffer no injury from the negligence of others, employed by him in the same business or service ; and that, in such cases, the servant or agent takes upon himself the hazards of any such injury, which may arise in the course of such business or employment ; and his rem- edy for any such injury, by the misconduct or negligence of a fellow-servant or agent, lies solely against the wrong-doer himself. Any other doctrine (it is said) would lead to mischievous con- sequences, and create responsibilities on the part of principals, the nature and extent of which could scarcely be measured ; and the public policy, upon which the rule itself is founded, would be subverted, instead of being subserved, by giving it such a comprehensive grasp. Thus, for example, where two servants of the same master were employed in conveying goods in a van of the master, in his business, and by negligence, in the overload- ing of the van by one, it broke down upon the road, and thereby the other received a severe injury, for which he brought an action against his master, founded upon such negligence ; it was held, that the action was not maintainable.^ [So, where the defendant ' Priestley v. Fowler, 3 Mees. & Wels. 1. In this case, Lord Abinger, in delivering the opinion of the court, said, " If the master be liable to the ser- vant in this action, the principle, of that liability will be found to carry us to an alarming extent. He who is responsible, by his general duty, or by the terms of his contract, for all the consequences of negligencejin a" matter in § 453 d.} THIRD PERSONS AGAINST PRINCIPALS. 537 employed the plaintiff, a bricklayer, and the defendant's foreman erected a scaffolding with unsound timber, in consequence of which it fell while the plaintiff was at work upon it, it was held which he is the principal, is responsible for the neligence of all his inferior agents. If the owner of the carriage is therefore responsible for the sufficiency of his carriage to his servant, he is responsible for the negligence of his coach- maker, or his harness-maker, or his coachman. The footman, therefore, who rides, behind the carriage, may have an action against his master for a defect in the carriage, owing to the negligence of the coach-maker, or for a defect in the harness, arising from the negligence of the harness-maker, or for drunk- enness, neglect, or for want of skill in the coachman ; nor is there any reason why the principle should not, if applicable in this class of cases, extend to many others. The master, for example, would be liable to the servant for the negligence of the chambermaid, for putting him into a damp bed ; for that of the upholsterer, for sending in a crazy bedstead, whereby he was made to fall down, while asleep, and injure himself; for the negligence of the cook, in not properly cleaning the copper vessels used in the kitchen ; of the butcher, in supplying the family with meat of a quality injurious to health ; of the builder, for a defect in the foundation of the house, whereby it fell, and injured both the master and the servant by the ruins. The inconvenience, not to say the absurdity, of these consequences, affords a sufficient argument against the application of this principle to the present case. But, in truth, the mere rela- tion of the master and the servant never can imply an obligation, on the part of the master, to take more care of the servant than he may reasonably be expected to do of himself. He is, no doubt, bound to provide for the safety of his servant, in the course of his employment, to the best of his judgment, information, and belief. The servant is not bound to risk his safety in the service of his master, and may, if he thinks fit, decline any service, in which he reasonably apprehends injury to himself; and in most of the cases, in which danger may be incurred, if not in all, he is just as likely to be acquainted with the probability and extent of it, as the master. In that sort of employ- ment, especially, which is described in the declaration in this case, the plaintiff must have known, as well as his master, and probably better, whether the van was sufficient, whether it was overloaded, and whether *it was likely to carry him safely. In fact, to allow this sort of action to prevail would be an encour- agement to the servant to omit that diligence and caution, which he is in duty bound to exercise on the behalf of his master, to protect him against the mis- conduct or negligence of others, who serve him, and which diligence and caution, while they protect the master, are a much better security against any injury the servant may sustain by the negligence of others engaged under the same master, than any recourse against his master for damages could possibly afford." See also the late case of Wiggett v. FoJc, 36 Eng. Law ajid Eq. 486 ; 11 Exch. 832. [*But the principal is liable to his servant.for injuries arising from his own negligence. Harrison v. Central R. R. Co. sit. J. 293. But if a servant works with or near machinery which is unsafe, and from which he is liable to sustain injury by reason of its being unsafe, with the knowledge, or means of Knowledge of its condition, he takes the risk incident to the employ^ 538 AGENCY. [CH. XVII, that the defendant was not liable, it not being contended that the defendant's foreman was deficient in skill, or an improper person to be employed for that purpose.^ It might be otherwise if the de- fendant had been negligent in the selection of improper servants.^] § 453 e. A case of quite as novel a character, has recently oc- curred, and is illustrative of the same doctrine. Two persons were employed by a railroad company in their business, the one as an engineer to manage the engines and' cars on the road, the other to tend the management and shifting of certain switches on the railway. The latter, although he was properly selected by the company, as a person of due skill and reasonable dili- gence, negligently put or left a switch across the railway, where- by the engine and cars were thrown off the track, and the engineer was severely injured. He brought an action therefore against the company ; and it was held, upon full argument, that the action was not maintainable ; but that the action should have been against the wrong-doer himself. The ground upon which the court proceeded, was, that neither principle, nor authority, nor public policy, j\istified such an extension of the rule ; and that the perils incident to such a service, were as likely to be known to the agent as to the principal ; and might be distinctly foreseen and provided against by him in his rate of compensation, if he chose ; and he must be presumed, in the absence of any dif- ferent contract, to take them upon himself.^ [And the same rule ment, and cannot maintain an action against his employer for injuries sustained by reason of the defective condition of the machinery. MoGlynn v. Brodie, 31 Cal. 876.] ' Wigmore v. Jay, 5 Exch. 354; Tarrant ». Webb, 18 C. B. 797; Fox v. Sandford, 4 Sneed, 36. " Tarrant v. Webb, 18 C. B. 797 ; Degg v. Midland Railway Co. 1 Hurl. & Nor. 773. ' Farwell v. The Boston & Worcester Railroad Corporation, 4 Met. 49. Mr. Chief Justice Shaw, in delivering the opinion of the court, went into an elab- orate examination of the whole subject, and said, ' ' This is an action of new impression in our courts, and involves a principle of great importance. It presents a case, where two persons are in the service and employment of one company, whose business it is to construct and maintain a railroad, and to employ their trains of cars trf carry persons and merchandise for hire. They are appointed and employed by the same company to perform separate duties and services, all tending to the accomplishment of one and the same purpose, — that of the safe and rapid transmission of the trains ; and they are paid for their respective services, according to the nature of their respective duties,, and the labor and skill required for their proper performance. The question is. §§ 453 d, 453 e.J third persons against principals. 539 was applied to the case of a brakeman on a railroad, who was injured by a collision caused by the negligence of a brakeman on another train.^] In neither of these cases, could there be whether, for damages, sustained by one of the persons so employed, by means of the carelessness and negligence of another, the party injured has a remedy against the common employer. It is an argument against such an action, though certainly not a decisive one, that no such action has before been main- tained. It is laid down by Blackstone, that, if a servant, by his negligence, does any damage to a stranger, the master shall be answerable for his neglect. But the damage must be done while he is actually employed in the master's service ; otherwise, the servant shall answer for his own misbehavior. 1 Bl. Comm. 431 ; M'Manus u. Criekett, 1 East, 106. This rule is obviously founded on the great principle of social duty, that every man, in the management of his own affairs, whether by himself, or by his agents or servants, shall so con- duct them as not to injure another ; and, if he does not, and another thereby sustains damage, he shall answer for it. If done by a servant, in the course of his employment, and acting within the scope of his authority, it is consid- ered, in contemplation of law, so far the act of the master, that the latter shall be answerable cimliter. But this presupposes, that the parties stand to each other in the relation of strangers, between whom there is no privity ; and the action, in such case, is an action sounding in tort. The form is trespass on the case, for the consequential damage. The maxim Respondeat superior, is adopted in that case, from general considerations of policy and security. But this does not apply to the case of a servant bringing his action against his own employer, to recover damages for an injury arising in the course of that em- ployment, where all such risks and perils as the employer and the servant respectively intend to assume and bear, may be regulated by the express or implied contract between them, and which, in contemplation of law, must be presumed to be thus regulated. The same view seems to have been taken by the learned counsel for the plaintiff in the argument ; and it was conceded, that the claim could not be placed on the principle indicated by the maxim. Respondeat superior, which binds the master to indemnify a stranger for the damage caused by the careless, negligent, or unskilful act of his servant in the conduct of his affairs. The claim, therefore, is placed, and must be main- tained, if maintained at all, on the ground of contract. As there is no express contract between the parties, applicable to this point, it is placed on the footing of an implied contract of indemnity, arising out of the relation of master and servant. It would be an implied promise, arising from the duty of the master, to be rsponsible to each person employed by him, in the conduct of every branch of business, where two or more persons are employed, to pay for all damage occasioned by the negligence of every other person employed in the same service. If such a duty were established by law, — like that of a common carrier, to stand to all losses of goods not caused by the act of God or of a ' Hayes v. The Western Railroad Corporation, 3 Gush. 270. See also McDer- mott V. Pacific Railroad, 30 Mo. 116. 540 AGENCY. [CH. XVII. the least doubt, that the principal would have been liable, if the injury had been occasioned by his own personal negligence or omission of duty. [In a still later case in the same court, the public enemy, — or that of an innkeeper, to be responsible, in like manner, for the baggage of his guest ; it would be a rule of frequent and familiar occurrence, and its existence and application, with all its qualifications and restrictions, would be settled by judicial precedents. But we are of opinion, that no such rule has been established, and the authorities, as far as they go, are opposed to the principle. Priestley «. Fowler, 3 Mees. & Wels. 1; Murray v. South Carolina E. R. Co. 1 McMuUan, 385. The general rule, resulting from con- siderations as well of justice as of policy, is, that he, who engages in the employment of another, for the performance of specified duties and services, for compensation, takes upon himself the natural and ordinary risks and perils incident to the performance of such services ; and, in legal presumption, the compensation is adjusted accordingly. And we are not aware of any principle, which should except the perils arising from the carelessness and negligence of those who are in the same employment. These are perils, which the servant is as likely to know, and against which he can as effectually guard, as the master. They are perils incident to the service, and which can be as distinctly foreseen and provided for, in the rate of compensation, as any others. To . say, that the master shall be responsible, because the damage is caused by his agents, is assuming the very point which remains to be proved. They are his agents to some extent, and for some purposes ; but whether he is respon- sible in a particular case, for their negligence, is not decided by the single fact, that they are, for some purposes, his agents. It seems to be now well settled, whatever might have been thought formerly, that underwriters cannot excuse themselves from payment of a loss by one of the perils insured against, on the ground, that the loss was caused by the negligence or unskilfulness of the officers or crew of the vessel, in the performance of their various duties as navigators, although employed and paid by the owners, and, in the navigation of the vessel, their agents. Copeland D. Kew England Marine Ins. Co. 2 Met. 440-443, and cases there cited. I am aware, that the maritime law has its own rules and analogies, and that we cannot always safely rely upon them in apply- ing them to other branches of law. But the rule in question seems to be a good authority for the point, that persons are not to be responsible, in all cases, for the negligence of those employed by them. If we look from considerations of justice to those of policy, they will strongly lead to the same conclusion. In considering the rights and obligations arising out of particular relations, it is competent for courts of justice to regard considerations of policy and general convenience, and to draw from them such rules as will, in their practical appli- cation, best promote the safety and security of all parties concerned. This is, in truth, the basis, on which implied promises are raised, being duties legally inferred from a consideration of what is best adapted to promote the benefit of all persons concerned, under given circumstances. To take the well known and familiar cases already cited : a common carrier, without regard to actual fault or neglect in himself or his servants, is made liable for all losses of goods con- fided to him for carriage, except those caused by the act of God or of a public § 453 e.J THIED PEESONS AGAINST PBINCIPALS. 541 plaintiff was an operative in the defendant's mill ; the defendant's superintendent had the charge of lighting the mill and managing the gas for that purpose. On one occasion he so negligently man- aged the gasometer, that large quantities of gas escaped into the mill and greatly injured the plaintiff at her work. The court held the defendant company not liable.^ And although the ser- enemy, because he can best guard tbem against all minor dangers, and because, in case of actual loss, it would be extremely difficult for the owner to adduce proof of embezzlement, or other actual Jfault or neglect, on the part of the carrier, although it may have been the real cause of the loss. The risk is there- fore thrown upon the carrier, and he receives, in the form of payment for the carriage, a premium for the risk, which he thus assumes. So of an innkeeper; he can best secure the attendance of honest and faithful servants, and guard his house against thieves. Whereas, if he were responsible only upon proof of actual negligence, he might connive at the presence of dishonest inmates and retainers, and even participate in the embezzlement of the property of the guests, during the hours of their necessary sleep ; and yet it would be difficult, and often impossible to prove these facts. The liability of passenger carriers * is founded on similar considerations. They are held to the strictest responsi- 'bility for care, vigilance, and skill, on the part of themselves and all persons employed by them, and they, are paid accordingly. The rule is founded on the expediency of throwing the risk upon those who can best guard against it. Story on Bailm. § 690, et seq. We are of opinion, that these considerations apply strongly to the case in question. Where several persons are employed in the conduct of one common enterprise or undertaking, and the safety of each depends much on the care and skill with which each other shall perform his appropriate duty, each is an observer of the conduct of the others, can give notice of any misconduct, incapacity, or neglect of duty, and leave the service, if the common employer will not take such precautions, and employ such agents as the safety of the whole party may require. By these means, the safety of each will be much more effectually secured, than could be done by a resort to the common employer for indemnity in case of loss by the negligence of each other. Regarding it in this light, it is the ordinary case of one sustaining an injury in the course of his own employment, in which he must bear the loss himself, or seek his remedy, if he have any, against the actual wrong-doer." J [See also Murray v. S. C. R. R. Co. 1 McMuUan, 386 ; McDaniel v. Emanuel, 2 Richardson, 466 ; Hayes v. The Western R. R. 3 Cush. 270 ; Coon v. The Utica, &c., R. R. 6 Barb. 231 ; 1 Seld. 492 ; King v. The Boston & Worcester E. R. 9 Cush. 112 ; Brown v. Maxwell, 6 Hill, 692 ; Skip v. Eastern Counties Railway Co. 24 Eng. Law and Eq. 397 ; 9 Exch. 223 ; Sherman v. The Roch- ester & Syracuse R. R. Co. 16 Barb. 674 ; Ryan v. The Cumberland Valley R. R. 11 Harris, 384 ; Cook v. Parham, 24 Ala. 21 ; Horner v. 111. Central R. R. 15 111. 660 ; Russell v. Hudson River R. R. 17 N. Y. 184. ' [Albro V. Agawam Canal Co. 6 Cush. 76. Fletcher, J., said, " This case cannot be distinguished in principle from the case of Farwell v. Boston & Wor- 542 AGENCY. [CH. XTII. vant guilty of negligence is the superior of the servant injured, and the latter is subject to the control of the former, so that he could not guard against his negligence, their common employer is not liable.^] cester R. R. 4 Met. 49 ; and the same point has been since adjudged in the case of Hayes v. Western R. R. 3 Gush. 270. "The principle of these decisions is, that when one person engages in the service of another, he undertakes, as between him and his employer, to run all the ordinary risks of the service, and this includes the risk of negligence on the part of others in the service of the |anje employer, whenever he, such servant, is acting in the discharge of his duty to his employer, who is the common em- ployer of both. In the present case, the injury of which the plaintiff complains appears to have happened, while she was acting in the discharge of her duty to the defendants, as her employers, in their factory, and to have been occasioned by the negligence of another person, who was also engaged in the defendants' service, in the same factory. " It cannot affect the principle, that the duties of the superintendent may be different, and perhaps may be considered as of a somewhat higher character than those of the plaintiff; inasmuch as they are both the servants of the same mas- ter, have the same employer, are engaged in the accomplishment of the same* general object, are acting in one common service, and derive their compensation from the same source. ' ' The plaintiff and the superintendent Inust be considered as fellow-servants, within the principle and meaning of the cases above referred to, and the other adjudged cases on this subject. There is no allegation, that the superintendent was not a fit and proper person to be employed by the defendants to perform the duties assigned to him, but only that he was chargeable with negligence and unskilfulness, on the particular occasion when the plaintiff was injured in the manner described. It would have presented a very different case, if the de- fendants had employed an unfit and impi'oper person, and in that way the plain- tiff had been exposed to and had suffered injury. " In the decision of the case of Farwell v. Boston & Worcester R. R. the case of Priestley v. Fowler, 8 Mees. & Wels. 1, was referred to as an authority . in point. There have recently been two other English cases (Hutchinson v. York, Newcastle, & Berwick Eailw. 6 W. H. & G. 343 ; Wigmore u. Jay, ib. 354), which fully sustain the doctrine and decision of Priestley v. Fowler. It is very clear, therefore, upon the adjudged cases, that this action cannot be , maintained, and that judgment must be entered for the defendants."] [* Same rule held in Feltham v. England, Law Rep. 2 Q. B. 33. See also Morgan v. Vale of Neath Railw. Co. Law Rep. 1 Q. B. 149, and Tunney v. Midland Railw. Co. Law Rep. 1 C. P. 291.J ' Sherman v. Rochester R. E. Co. 17 N. Y. 153. And see Degg v. Midland Railw. Co. 1 H. & N. 773 ; Seymour v. Maddox, 16 Adolph. & Ellis (n. s.), 326 ; King v. Boston & Worcester Railw. 9 Cush. 113 ; Gillshannon v. Stony Brook R. R. 10 Cush. 228; Keegan v. Western R. R. 4 Seld. 175. See Ormand v. Holland, 1 Ellis, Bl. & Ellis, 102. §§453e-453^.j third persons against peincipals. 543 § 453/. Whether the same rule would apply to a case, where the agents are engaged in different and distinct employments or business by the same principal, is a point upon which there does not seem hitherto to have been any positive adjudication ; and the principles asserted in the other case, where the employment or business is the same, do not necessarily govern it. Suppose two ships, owned by the same person, and engaged in different voyages, and by a collision between them, caused by the negli- gence of the master of one, the master of the other should receive a grievous injury in his person or property, would he have no redress against the principal upon the ground of the maxim. Respondeat superior ? Suppose a commission-merchant, employed by the owner to sell goods for him in Boston, should embark in a steamboat owned by the same person, for New York; on his own private business, and, in the course of the voyage, he should suffer great personal injury from the gross carelessness of the master of the steamboat ; would it be a good answer to an action •'brought by him against the owner, that he was the agent of the latter, as well as the master ? Suppose a foreign factor should embark his own private goods in a ship belonging to the principal, paying therefor the customary freight for the carriage of the like goods, and during the voyage, by the gross negligence of the master of the ship, the goods should be damaged or destroyed ; would the owner be exempted from all liability therefor ? Sup- pose a carpenter, employed to build a house for the owner of a stage-coach, should, in travelling in the coach, paying the usual fare, by the overturning of the coach through the gross negli- gence of the coachman, have his limbs fractured, would the owner be free from all liability,' and the suit lie solely against the wrong-doer ? These questions are propounded for the mere purpose of showing that there are, or may be, intrinsic difficulties and inconveniencies in pressing the doctrine, resulting from the relation of agency, to such a large extent. [§ 453 g. Since the former edition of this work, however, the question suggested in the last section has been directly involved in a recent decision in the court of exchequer. It was there held, that a railway company is not liable for an injury to one of their servants, occasioned by the negligence of other servants in guiding another train, with which the train on which the plain- 544 AGENCY. [CH. XTII. tiff was riding came in collision.^ But the contrary has been held in Ohio, where a brakeman was injured by the carelessness of a conductor on the same train, under whose command and ' [Hutchinson v. York, Newcastle, &c.. Railroad, 5 Exoh. 343. [See also Whoalan v. Mad River Railroad, 8 Ohio St. 249.] Alderson, B., said, "This was an action under Lord Campbell's Act, brought by the plaintiff as adminis- tratrix of her deceased husband, Joseph Hutchinson, to recover compensation from the defendants on the ground that he had met with bis death by reason of the negligence of their servants. [His Lordship stated the pleadings.] On this record the question is, whether the defendants are liable for an injury occa- sioned to one of their own servants by a collision, while he was travelling in one of their carriages, in discharge of his duty as their servant, in respect of which injury they would undoubtedly have been liable, if the party injured had been a stranger travelling as a passenger for hire. We think they are not. This case appears to us to be undistinguishable in principle from that of Priest- ley V. Fowler, 3 Mees. & Wels. 1. In that case the plaintiff was the servant of the defendant, and had sustained an' injury by the defendant having overloaded a van, in which he, the plaintiff, was travelling by direction of defendant in dis- charge of his ordinary duties. That case was fully considered, and the court, after a verdict for the plaintiff, arrested the judgment, on the ground that a master is not in general liable to one servant for damage resulting from the negligence of another; and some of the inconveniences, not to say absurdities, which would result from a contrary doctrine, were there pointed out. The principle, upon which a master is in general liable to answer for accidents result- ing from the negligence or unskilfuluess of his servant, is, that the act of his servant is in truth his own act. If the master is himself driving his carriage, and from want of skill causes injury to a passer-by, he is of course responsible for that want of skill. If, instead of driving the carriage with his own hands, he employs a servant to drive it, the servant is but an instrument set in motion by the master. It was the master's will that the servant should drive, and whatever the servant does in order to give effect to his master's will may be treated by others as the act of the master : ' Qui facit per alium, facit per se.' So far there is no difficulty. Equally clear is it, that though a stranger may treat the act of the servant as the act o'f his master, yet the servant himself, by whose negligence or want of skill the accident has occurred, cannot. And, therefore, he cannot defend himself against the claim of a third person ; nor, if by his unskilfulness he is himself injured, can he claim damages from his master upon an allegation that his own negligence was, in point of law, the negligence of his master. The grounds for these distinctions are so obvious as to need no illustration. The difficulty is as to the principle applicable to the case of sev- eral servants employed by the same master, and injury resulting to one of them from the negligence of another. In such a case, however, we are of opinion that the master is not in general responsible, when he has selected persons of competent care and skill. Put the case of a master employing A. and B., two of his servants, to drive his cattle to market. It is admitted, that if by the unskilfulness of A., a stranger is injured, the master is responsible. Not so, if § 453^.] THIRD PERSONS AGAINST PRINCIPALS. 545 control the brakeman was. They were declared not to be fellow- servants within the meaning of the foregoing cases, and the A., by his unskilfulness, hurts himself; he cannot treat that as the want of skill of his master. Suppose, then, that by the unskilfulness of A., B., the other servant, is injured while they are jointly engaged in the same service, there we think B. has no claim against the master. They have both engaged in a com- mon service, the duties of which impose a certain risk on each of them ; and in case of negligence on the part of the other, the party injured knows that the negligence is that of his fellow-servant and not of his master. He knew, when he engaged in the service, that he was exposed to the risk of injury, not only from his own want of skill or care, but also from the want of it on the part of his fellow-servant ; and he must be supposed to have contracted on the terms that, as between himself and his master, he would run this risk. Now, apply- ing these principles to the present case, it follows that the plaintiff has no title to recover. Hutchinson, in the discharge of his duty as one of the servants of the defendants, had put himself into one of their railway carriages under the guidance of others of their servants, and by the neglect of those other servants, while they were engaged together with him in one common service, the acci- dent occurred. This was a risk which Hutchinson must be taken to have agreed to run when he entered into the defendant's service, and for the consequences of which, therefore, they are not responsible. The declaration, indeed, states the accident to have arisen from the combined neglect of the servants who were managing the carriages in which the deceased was travelling, and of others of their servants who were managing the train with which the plaintiff's carriage came into collision. And Mr. Hill argued, that this allegation is divisible, and that, in order to sustain the declaration, it would not be necessary to prove any negligence on the part of the train in which Hutchinson was travelling ; that it would be sufficient to prove negligence on the part of the other train ; and so he contended that, even admitting the defendants would not be liable for any neglect on the part of those who were managing the train in one of the carriages in which Hutchinson was travelling, yet there could be no principle exempting them from liability for the acts of those who, though equally with Hutchinson servants of the defendants, were not at the time of the accident, engaged in any common act of service with him. But we do not think there is any real distinc- tion between the two cases. The principle is, that a servant, when he engages to serve a master, undertakes, as between him and his master, to run all the ordinary risks of the service, and this includes the risk of negligence on the part of a fellow-servant, whenever he is acting in discharge of his duty as servant of him who is the common master of both. The death of Hutchinson appears on the pleadings to have happened while he was acting in the discharge of his duties to the defendants as his master, and to have been the result of careless- ness on the part of one or more other servant or servants of the same master while engaged in their service ; and whether the death resulted from the mis- management of the one train or of the other, or of both, does not affect the principle ; in any case it arose from carelessness or want of skill, the risk of which the deceased had, as between himself and the defendants, agreed to run. It may, however, be proper with reference to this point to add, that we do not AGENCr. 35 546 AGENCY. [CH. ^ITII, company were held responsible.^ So it has been held, that if a day laborer on a railroad is carried to and from his work by the engine and train of the company, without charge, and receives an think a master is exempt from responsibility to his servant for an injury occa- sioned to him by the act of another servant, where the servant injured was not, at the time of the injury, acting in the service of his master. In such a case the servant injured is substantially a stranger, and entitled to all the privileges he would have had, if he had not been a servant. It was contended that the plea in this case is bad on special demuri-er, as being but an argumentative denial of the cause of action stated in the declaration. But we think Mr. Addison suc- cessfully showed this objection to be unfounded. Though we have said that a master is not in general responsible to one servant for an injury occasioned to him by the negligence of a fellow-servant while they are acting in one common service, yet this must be taken with the qualification that the master shall have taken due care not to expose his servant to unreasonable risks. The servant, when he engages to run the risks of his service, including those arising from the negligence of fellow-servants, has a right to understand that the master has taken reasonable care to protect him from such risks by associating him only with persons of ordinary skill and care ; and the object of the plea in this case is to show that the defendants had discharged this duty, the omission to discharge which might have made them responsible to the deceased. The plea, therefore, appears to us not to be open to the objection insisted on. For these reasons we are of opinion that the plaintiff has shown no ground of action, and so our judgment must be for the defendants.'' See also Sherman v. The Rochester, &c., Railway Co. 15 Barb. 674; Ryan v. Cumberland, Valley R. R. 11 Harris, 884; Gilshannon v. Stony Brook R. R. Co. 10 Cush. 228.] ' [Cleveland, &c., R. R. Co. v. Keary, 3 Ohio St. 201 ; Little Miami R. R. V. Stevens, 20 Ohio, 416 ; Gillenwater v. Madison R. B. 6 Port. (Ind.) 339 ; Fitzpatrick v. New Albany R. R. 7 Port. (Ind.) 436 ; Chamberlain v. M. & M. R. R. 11 Wis. 238. In the 3 Ohio St., Banney, J., said, " But it is very con- fidently claimed that this view of the law is at variance with all the adjudged cases in England and in this country, — not only with the decisions of every court, but with the opinion of every judge of those courts. We are referred, in proof of this position, to the cases of Priestley v. Fowler, 3 M. & W. 1 ; Hutchinson v. The York, N., & B. Railway, 6 Ex. 343, and Wigmore v. Jay, lb. 354, decided by the English Court of Exchequer ; Murray v. The South Carolina R. R. Co. 1 McMuUan, 385, by the Court of Appeals of that State; Farwell v. The Boston & Worcester R. R. Co. 4 Met. 49 ; and Hayes v. The Western R. R. Co. 3 Cush. 270, by the Supreme Court of Massachusetts ; and Coon V. The Utica & Syracuse R. R. Co. 1 Seld. 492, by the Court of Appeals in New York. We entertain the highest respect for these courts, and their undivided opinions upon any question arising upon the principles of the common law, would cause us to hesitate long "before we differed from them. But even upon such a question, we should be compelled to follow the dictates of our own understandings ; and the more especially should we feel at perfect liberty to do so, when they did not profess to base their decisions upon any settled principle of law, but undertook to declare a new rule for their action. K such a rule did § 453^.] THIRD PERSONS AGAINST PRINCIPALS. 547 injury, while on such passage, through the negligence of the engineer of the train, the company are not liable.^ But where a railroad company employ a contractor to repair a bridge for a not seem to us consistent with the analogies of the law, and calculated to pro- mote justice, we should feel bound to reject it. Upon this question, we find no occasion to depart from established principles. It lies upon those who deny the defendant in error the benefit of these principles, to show some good reason for the exclusion. We have carefully examined all these cases, and can find in none of them any such reason, or any denial of the principle upon which we base this decision. While we cannot approve all that is said in some of them, no one of them has determined the question now before us. Priestley v. Fowler was decided in 1837, and is the first case to be found in the English books where the limitation of the liability of the master is even hinted at. The action was brought by a servant against his master, for the negligence of another servant in overloading a van, by which the plaintiff was injured. It was held the action coald not be maintained. Chief Baron Abinger, in delivering the opinion, says, ' There is no precedent for the .action by a servant against a. master. We are therefore, to decide the question upon general principles ; and in doing so we are at liberty to look at the consequences of a decision one way or the other.' He accordingly looked at the consequences, with a view to the actual state of English society, and concluded they would carry him to an ' alarming extent.' After referring to several instances where the liability of the master would at- tach, he concludes 'that ' the inconvenience, not to say absurdity of these con- sequences,' afford a sufficient argument against the action. It can admit of very little doubt, that holding the relation of master and servant to exist between the buyer and seller of a coach or a harness (instances put by his. Lordship), would, indeed, be both inconvenient and absurd. It is unnecessary to examine, at any length, the other cases decided in that court. Upon a similar state of facts, they each follow and affirm the doctrine of Priestley v. Fowler. As these cases were decided upon no settled principle of the common law, but upon gen- eral principles, with a view to consequences, I may be permitted to refer to the opinion of another court equally learned and able, sitting in the same kingdom, and subject to review, if I am not mistaken, in the same ultimate tribunal. In the case of Dixon v. Ranken (1 Am. Railw. Cases, 669), determined by the highest court in Scotland, as late as 1852, the doctrines of the English cases were repudiated, and an exactly contrary decision made. The Lord Justice Clerk, after referring to the English decisions, proceeds to say : ' The master's primary obligation in every contract of service, in which his workmen are em- ployed in a hazardous and dangerous occupation, for his interest and profit, is to provide for, and attend to, the safety of the men. That is his first and lead- ing obligation, paramount even to that of paying for their labor. This obliga- tion includes the duty of furnishing good and sufficient machinery and apparatus, ' Gilshannon v. Stony Brook R. R. 10 Cush. 228. But see Russell v. Hud- son River R. R. 5 Duer, 39 ; 5 Port. (Ind.) 339 ; 7 Port. (Ind.) 436. 548 AGENCY. [CH. XVU. specified sum, and he employs laborers to work thereon by the day, the latter are not the servants of the company ; and if they are injured while at work on the bridge, by the negligence of those and of keeping the same in good condition ; and the more rude and cheap the machinery, and the more liable on that account to cause injury, the greater his obligation to make up for its defects by the attention necessary to prevent such injury. In his obligation is equally included, as he cannot do every thing himself, the duty to have all acts by others whom he employs, done properly and carefully, in order to avoid risk. This obligation is not less than the obli- gation to provide for the ^safety of the lives of his servants by fit machinery. The other servants are employed by him to do acts which, of course, he cannot do himself, but they are acting for him, and instead of himself, as in his hands. For their careful and cautious attention to duty, and for their want of vigilance, and for their neglect of precaution by which danger to life may be caused, he is just as much responsible as he would be for such misconduct on his own part, if he were actually working or present. And this pariicularly holds as to the person he intrusts with the direction and control over any of his workmen, and who represents him in such a matter.'' And he adds : ' There have been many cases in Scotland, at all periods, and during the last fifty years, a very large number, which proceeded on this as a fixed principle of the law as to the con- tract of service.' Lord Cockburn, after stating that ' the plea that the master is not liable, rests solely on the authority of two or three very recent decisions of English courts,' says, ' If this be the law of England, I speak of it with all due respect. But it most certainly is not the law of Scotland. I defy any in- dustry to produce a single decision, or dictum, or institutional indication, or any trace of any authority to this eifect, or of this tendency, from the whole range of our law. If such an idea exists in our system, it has, as yet, lurked undetected. It has never been condemned, because it has never been stated.' After alluding to the fact that the rule had been pressed upon the court, not only on account of the weight of the English authority, but for its own inherent justice, he proceeds : ' This last recommendation fails with me, because I think that the justice of the thing is exactly in the opposite direction. I have rarely come upon any principle that seems less reconcilable to legal reason. I can conceive some reasonings for exempting the employer from liability altogether, but not one for exempting him only when those who act for him injure one of themselves. It rather seems to me that these are the very persons who have the strongest claim upon him for reparation, because they incur danger on his account, and certainly are not understood, by our law, to come under any engagement to take these risks on themselves.' Such is the diversity of opinion, not only as to the existence of the doctrine, but also as to its justice and pro- priety, found to obtain in two of the learned courts in Great Britain ; both un- controlled by any statutory regulation, or other consideration peculiar to the system of law administered by either; but each determining the obligation arising fi:om a relation, founded upon contract, which must be the same in England and Scotland. The case of Murray v. The S. C. R. R. 1 McMuUan, 385, was decided in 1841. The plaintiff was a fireman, and was injured by the carelessness of the engineer. A majority of the court held that he could not § 453^.] THIED PERSONS AGAINST PRINCIPALS. 549 in charge of a passing train, and without fault themselves, they can recover of the company.^ So where A., a servant of J. & Co., who had been employed by R. to carry cotton from a warehouse, recover. Judges O'Neall and Gantt, and Chancellor Johnson dissented. They admit that the plaintiff took upon himself, as a consequence of his contract, all the ordinary risks of the employment, and that he could not claim for injuries, against which the ordinary prudence of his employers could not provide ; but they insist that injuries from negligence do not belong to these ordinary risks ; that the company was bound to carry him safely, while he was bound to serve them faithfully ; and that neither party should be permitted to extend or abridge the contract. ' That the master cannot exact other services than those stipulated for ; nor, by any indirection, subject the servant to any other than the ordinary perils incident to the employment ; and that if he does, by any agency what- ever, or by any means, whether of design or negligence, accumulate upon the servant, while in the performance of his duty, any dangers beyond those in- herent in the service itself, they fall upon the latter, not as a servant (for his contract does not bind him to endure them), but as a man, and the law entitles him to redress.' The next case in order of time, is that of Farwell v. The Boston & W.oroester R. E. 4 Met. 49. The plaintiff, an engineer on the de- fendant's road, was injured by the negligence of a switch tender. His right to recover against the company, was denied in a very ingenious opinion by C. J. Shaw ; in which the general proposition is maintained, that a master who uses due diligence in the selection of competent servants, and furnishes them with suitable means to perform the service in which he employs them, is not liable for the carelessness of one resulting in injury to another, while both are engaged in the same service. Of judicial determinations, he was able to bring to his support only the cases of Priestley v. Fowler, and Murray v. The S. C. E. E. ^ and characterizing it ' as in some measure a nice question,' he says, ' We would add a caution against any hasty conclusion as to the application of this rule to a case not fully within the same principle.' That it was not intended, by this decision, to foreclose the question now before us, is evident from the later case of Hayes v. The Western R. E. 3 Gush. 270, in which the negligence charged, was that of a brakeman, acting, as was claimed, pro tempore, as conductor ; and it was argued, that although the company were not liable to a laborer, for the neglect of another laborer, yet they were answerable for the neglect of an officer, such as the conductor was. The court expressly declined expressing , any opinion upon the soundness of this distinction, and held that it did not properly arise upon the fact's of the case. The case of Coon v. The Syracuse & Utica R. E. 1 Seld. 492, was brought by a trackman, employed by the defend- ants to keep a certain portion of their road in order, who claimed to have been injured by the negligence of the managers of a train running upon the road. The court considered the case governed by the authorities to which I have referred, and especially the one from Metcalf, and gave judgment for the de- fendants; Judges Gardner and Foot only, expressed opinions. The former ' Young V. N. Y. Central E. E. 30 Barb. 229. 550 AGENCY. [CH. XTII. was injured by the negligence of R.'s porters in lowering the bales of cotton from the upper floor of the warehouse into his lorry, it was held that A. had a right of action against R. for such negligence.^ said, the good sense of the principle, when applied to individuals engaged in the same service, was sufficiently obvious ; but that there might be more doubt of its justice in reference to those whose employments are distinct, although both may be necessary to the successful result of a common enterprise. And the latter admits that it ' has been unfolded and brought to view within the last twenty years, and principally by the new business commenced within that period, and now extensively prosecuted, of transporting persons and property by steam on railways.' I have now referred to every decision of a court of last resort, within my knowledge, bearing upon the question under consideration. While the principle of respondeat superior is as old as the law itself, it is everywhere admitted that no such exception to its operation as is now contended for was ever asserted until the case of Priestley u. Fowler was decided. That case, and those made upon its authority in England and America, have all proceeded upon the general ground of exempting the master from responsibility to one servant' for injuries arising from the carelessness of another engaged in the common service, because the servant, by his contract, takes these risks upon himself. None of them have in terms declared that he is not liable for the negligent and careless conduct of him to whom he delegates the power of oon- ' [Abraham v. Keynolds, 5 Hurl. & Norm. 143. A servant in the employ- ment of the E. L. Company, engaged in repairing a carriage in a siding at a station in the joint occupation of the E. L. Company and the L. & Y. Com- pany, was killed by an engine of the L. & Y. Company being shunted into the siding at which he was at work. It appeared that the rules for the regulation of the station' were published, headed in the joint names of the two companies ; and that the servants employed in shunting the engines were the joint servants of the two companies, but the engine drivers and persons employed, as the deceased was, in repairing the carriage, were the separate servants of each company. It was found that the rules as to the precautions to be taken before shunting trains into sidings had been observed, and that there had been no negligence on the part of the deceased, the shuntsman, pointsman, or engine driver ; but that the accident was occasioned by the rules being defective. It was held, that the L. & Y. Company were liable for the injury, being found by the jury guilty of negligence. Vose «. Lancashire & Yorkshire Railway Co. 2 Hurl. & Norm. 728.] [* The plaintiff was a porter at a station of the A. Railway Company. The defendant company also used the station ; and their servants, while there, were subject to the rules of the A. Company, and to the control of their station master. The plaintiff, while at his usual employment, was injured by the negligence of the defendant's engine driver ; held, that the plaintiff and engine driver were not fellow-servants. Warburton «. Great Western Railway Co. Law R. 2 Exeh. 30.] §§ 453^', 453^.] THIRD PERSONS AGAINST PRINCIPALS. 551 [§ 453 h. Whether the same rule prevails, where the injury- arises from defective apparatus, machinery, or tools in the hands of a fellow-servant, may not perhaps be fully settled.^ It has trol and command over them. The court, whose authority has been most relied on in this country, has expressly refused to declare it. Even to this extent the doctrine has been resolutely resisted at every step by distinguished jurists. To speak of it, therefore, as a settled principle of the common law, is to confound ideas. To adopt it without a conviction of its justice and propriety, is to abuse the power with which the law has invested us. Our plain duty is to endeavor to ascertain the true nature of the relation between the parties, and the inherent elements of the contract on which it is founded, and from them deduce the prin- ciple that ought to govern. For, as has been said by an elegant writer, ' If law be a science, and really deserves so sublime a name, it must be founded on principle, and claim an exalted rank in the empire of reason.' And upon a question like this, what is good sense at Westminster is good sense at Edin- burgh, or wherever else parties may contract. Tested in this manner, it seems ' to us clear, in a case like the present, that as between the company and those employed to labor in subordinate situations under the control of a superior, two distinct classes of obligations arise, — the one resting upon the company, and the other upon the servants, — and both founded upon what each, either ex- pressly or impliedly, has agreed to do in execution of the contract. It is the duty of the company to furnish suitable machinery and apparatus, and, as they reserve the government and control of the train to themselves, and intrust no part of it to these servants, to control it and them, with prudence and care. As the necessity for this prudence and care is constant and continuing, the obliga- tion is performed' only when it is constantly exercised, and they cannot rid themselves of it by devolving this power upon the conductor. If they intrust him with its exercise, in the language of Judge Story, they ' in effect warrant his fidelity and good conduct.' It is the duty of the servants to obey the orders of the superior thus placed over them, and to perform as he shall direct. If they fail to dp this, and injure each other, they violate their engagements to the com- pany, and are alone answerable for the wrongs they may do. In such case there is no failure of the company to do, what as between them and these servants, it was understood they should do, when the servants entered the service. But they cannot be made to bear losses arising from carelessness in conducting the train, over which their employer gave them no power or control, either sepa- rately or collectively, until we are prepared to say that justice and public policy require the consequences of duty omitted by one party to be visited upon the other, although stripped of all power to prevent such consequences."] ' [Where a master, who was a contractor and builder, employed the plain- tiff as a mason upon a house he was erecting, and a boarding had been put up to protect the building from carriages passing in the road, which projected far into the street, although there was sufficient room for carts to pass, and a cart, which was being driven along the street by a third person, swung .against the boarding, and knocked down a machine standing between it and the building, which was used for lifting stones for the building, whereby the plaintiff was thrown into the cellar and hurt, it was held, the master was not liable, both 552 AGENCY. • [CH. XTII. been thought in some cases, that the principle of non-liability of a principal for the injury caused to one servant by another, was not applicable to such a case, but only when the injury happened without any fault or misconduct of the principal, either in the act which caused the injury, or in the selection or employment of the agent by whose fault it happened. It has therefore been held, that a fireman engaged on a railroad, might recover for an injury received by the bursting of a boiler of an engine hnovm to the defendants to be defective ; at least, if such defect was not known to the plaintiff, and he himself was without fault.^ And actual notice to the defendant, of the defect, must be averred and proved;^ although it has been held, that if the master's ignorance of the defect was owing to his own gross negligence, he is as much liable as if he had actual notice.^ [W. requested his hired man, G., to assist him in placing certain railroad cars- and trucks, which he had sold and agreed to ship from Cleveland to Toledo, on a vessel ; to do which it was necessary to raise them from the dock by the use of machinery and manual effort. G. consented. While raising one of the trucks, a part of the machinery gave way ; owing to which the truck fell upon G., breaking both his legs. It was held, that if W. had no charge of, or control over, the operation of shipping the cars, &c., but, on the contrary, the duty of shipping them rested solely upon the master of the vessel, and he had the entire control over the operation, and W. was acting merely as his assistant or servant, the action should have been brought against the owner of the vessel, and not against W. But if it was W.'s duty to ship them, or if it was the joint duty of him and the master of the vessel, he was (as between him and G.) liable for the injury, if it resulted from his neglect, or that of the master of the vessel, to provide because the servant, knowing the position of the boarding and the machine, voluntarily continued to work, and because the connection of the master in the accident was too remote. Assop ». Yates, 2 Hurl. & Norm. 768.] ' Keegan u. The Western K. R. Corporation, 4 Seld. 176. And see Wil- liams V. Clough, 3 Hurl. & Norm. 258 ; Roberts v. Smith, 2 Hurl. & Norm. 213 ; Paterson v. Wallace, 1 Macqueen, 748 ; Brydon v. Stewart, 2 Macqueen, SO. See Griffiths v. Gidlow, 3 Plurl. & Norm. 648 ; Byron v. N. Y. State Printing Telegraph Co. 26 Bar^. 89. = McMillan ». The Saratoga & Washington R. R. Co. 20 Barb. 449. ' Noyes v. Smith, 28 Vt. 59. See Perry v. Marsh, 25 Ala. 659 ; Noyes «. Rutland & Burlington R. R. 1 Williams (Vt.), 110. § 453 h.'\ THIRD PERSONS AGAINST PRINCIPALS. 553 suitable machinery, the defect in the machinery being unknown to G. The general rule is, that an employer who provides the machinery, and oversees and controls its operation, must see that it is suitable ; and if an injury to the workman happen by reason of a defect unknown to the latter, and which the employer, by the use of ordinary care, could have cured, such employer is liable for the injury .1] On the other hand, if the defective character of the machinery or apparatus is not known to the principal, and the servant sustains an injury thereby, he would not, it seems, have any cause of action against his principal.^ [In a recent ' McGatrick v. Wason, 4 Ohio St. 566. ' [Strange v. McCormack, in Dist. Ct. of Penn., Boston Law Rep., April, 1851, p. 619; Lowrie, J., there said, "Where a person undertakes to work, hy means of machinery that is dangerous in its operation, and receives an injury from it, in its ordinary operation, is the employer liable ? The answer is plain, — he is not. But as the question involved in this cause seems to have never been decided by our courts, it will not be out of place to refer to the reasons and principles upon which the solution of the question depends. It has been said, that the liability of the employer can arise only in cases of breach of contract, or of a public duty. But this proposition does not fully present the difficulty of this case ; for wherever the law imposes a private duty from one man to another, it implies a contract to perform that duty, and the question still remains. Does not the law impose on the employer the duty to have his machinery constructed in such a manner that it will operate with reasonable safety to the persons working at it? This, it must be observed, is a question of legal, not of moral, duty. The moral duty, which every man owes to those in his employment to consult their safety, will not be disputed. This is a duty prompted by the ordinary feelings of human charity, and may be of no more perfect obligation than the duty which one owes to another to warn him of approaching danger, — a duty enforced by no sanctions but those of the moral law. It will not be pretended, if the defendant had warned the plaintiff that the machinery was dangerous, and then the plaintiff had agreed to risk it, that in such case the defendant would be liable for the unfortunate result of the experiment. But the law very properly presumes that every man who undertakes a business understands the character of the business, and of the tools and machinery with which it is to be done ; and on this account it is a fair presumption, that he undertakes the risk for what he considers a sufficient compensation. If he ignorantly and presumptuously undertakes the work, it is not wrong that he should himself bear the natural consequences. If the machinery is dangerous, in its character or by reason of its want of repair, a proper workman is presumed to know it at least as well as his employer, and has a right to decline the work ; and if he does not, he takes the risk. It is not necessary to say how the law would be, where one is induced by false representations to work with unsafe machinery. If the duty claimed to exist here is founded on any other principle than kindness, it must be a principle 554 AGENCY. [CH. XVII. case the master was a sugar refiner, and employed a servant to fill the sugar moulds and hoist them up to higher floors in the ■warehouse, by means of machinery; and the usual mode of attaching the moulds to the machine was by placing them in net bags, which effectually prevented any accident ; which mode had been adopted by the master until, from motives of economy, he substituted a kind of clip, which laid hold of the rim of the mould ; and the servant used this mode, until on a certain occa- sion, when he himself had filled the mould, and fastened it to the clip, the clip by some jerk in raising the mould, slipt off, and the mould fell on the servant's head and killed him, it was held, that involving the legal duty of protection. But where the law imposes this duty, it requires the correlative duty of subjection, a relation which would be repu- diated with scorn in the present instance. There is one illustrious instance, wherein the law protects the weak and ignorant from the exactions of the more powerful, and even from his own ignorance ; and this is by the laws forbidding all worldly employment on the Lord's day. Looking at this in a merely legal point of view (and here we can no otherwise view it), it is easy to see that thousands of people, even in a Christian land, would have no day of physical rest were it not for these laws. But this protection is afforded by the law, not required of the employers. There is another large class of cases, wherein the law affords its protection to persons who are indiscreetly seduced into engage- ments by those who stand in a relation towards them by which an undue influence may be exercised. But the relation of employer and employee has never been supposed to be of this character. There is no relation of confidence or de- pendence between them. Both are equal before the law, and considered equally competent to take care of themselves. No protection is legally due by one, nor subjection by the other ; and of course no action lies for failure of pro- tection. As a general rule, the law leaves all men free to make their own bargains, and decides between them according to their contracts, without diminishing the freedom of either in order to protect him against the other. Suppose there was actual carelessness on the part of the manager in the arrange- ment of the cards, so that their operation was defective ; this is only another way of saying that the plaintiff was set to work with imperfect instruments. If he had been set to cut wood with the defendant's axe, and it had become detached from the handle, I suppose it would not have been claimed that the defendant was liable for an injury thus occasioned to the plaintiff. Yet I do not perceive the difference between that case and this ; for if the machinery, in this instance, is more complicated, the person using it is presumed to have more skill and care. Even the manager himself is (as far as concerns the plaintiff) but one of the instruments by which the defendant carries on his business ; an instrument just as likely to be defective as any of the unintelli- gent instruments by which the business is effected, and the persons employed are all subject to the risk of his occasional negligence and unskilfuluess, and cannot transfer the risk to the employer."] §§ 453 h, 453 iJ] third persons against principals. 555 was no evidence to go to the jury of the master's liability ; inas- much as assuming it was not the servant's own negligence in fixing the clip, yet if the clip was itself dangerous, the servant knew it as well as the master, and ought not to have used it.^ And in a still later case it was held, that an employee cannot recover for an injury suffered in the course of his employment from a defect in the machinery used by his employer, unless the employer knew, or ought to have known, of the defect, and the employee did not know it, or had not the means of knowledge.^] And, in another case, a fireman on a railroad locomotive, who had been injured, as he contended, by the breaking of a defective switch managed by another servant, sought to recover of the railroad company, on the ground that the latter Was liable for the defective character of their apparatus ; but, as the company were expressly acquitted of the gross negligence, the court held, that the company would be responsible only for want of ordinary care and diligence.^ [A master is, however, responsible for the. result of not employing servants of ordinary skill and care in the work upon which they are engaged, and if an injury arises to one servant from the incompetency or want of ordinary skill in a fellow-servant, while both are engaged about their master's busi- ness, it has been said that the master is liable.*] [§ 453 i. The rule of law that a master is not in general re- sponsible to his servant for injury occasioned by the negligence of a fellow-servant in the course of their common employment, applies to the case of a person injured while gratuitously assist- ing the servants in their work. Therefore, where the servants of a railway company were turning a truck on a turn-table, and a person not in the employment of the company volunteered to assist, and while so engaged, other servants of the company negli- gently propelled a steam-engine and thereby caused the death of the person who had so volunteered ; but the other servants were persons of competent skill, and the company did not authorize ' Dyman «. Leach, 40 Eng. Law and Eq. 491, in the Court of Exchequer, April, 18, 1857. This case does appear to be in the regular Exchequer Re- ports. ' Hayden v. Smithville Man. Co. 29 Conn. 648. " King V. Boston & Worcester Railroad Corporation, 9 Cush. 112. See Sullivan ». M. & M. Railroad, 11 Iowa, 421. * Wiggett V. Fox, 36 Eng. Law and Eq. 486. And see Tarrant v. Webb, 38 id. 281 ; Wright v. New York Central Railroad, 28 Barb. 80. 556 AGENCT. [CH. XTII. the negligence, it was held that they were not liable to the ad- ministrator of tlie person so injured.^] § 454. This liability of the principal for the misfeasances, and ' [Degg V. Midland Railway Co. 1 Hurl. & Norm. 773 ; 40 Eng. Law and Eq. 376. Bramwell, B., there said, " The facts stated by the declaration and the plea demurred to may be thus summed up. The defendants were possessed of a railway, and carriages and engines ; their servants were at work on the railway in their service with those carriages and engines ; the deceased volun- tarily assisted some of them in their work ; other of the defendants' servants were negligent about their work, and by reason thereof the deceased was killed ; the defendants' servants were persons competent to do the work ; the defendants did not authorize the negligence. " We are of opinion that, under these circumstances, the action is not main- tainable. The cases show that if the deceased had been a servant of the defend- ants, and injured under such circumstances as occurred here, no action would be maintainable, and it might be enough for us to say that those cases govern this, for it seems impossible to suppose that the deceased, by volunteering his services, can have any greater rights or impose any greater duty on the defend- ants than would have existed had he been a hired servant. But we were pressed by an expression, to be found in those cases, to the effect that ' a servant undertakes as between him and the master, to run all ordinary risks of the service, including the negligence of a fellow-servant ; Wiggett v. Fox, 11 Exch. 832 ; s. c. 36 Eng. Rep. 486 ; and it was said there was no such under- taking here. But in truth there is as much in the one case as in the other; the consideration may not be as obvious, but it is as competent for a man to agree, and as reasonable to hold that he does agree, that if allowed to assist in the work, though not paid, he will take care of himself from the negligence of his fellow-workmen, as it would be if he were paid for his services. "But we were also told that there was and could be no agreement; that Degg was a wrong-doer, and therefore the action was maintainable. It cer- tainly would be strange that the case should be better, if he were a wrong-doer, than if he had not been. We are of opinion that this argument cannot be sup- ported. We desire not to be understood as laying down any general propo- sition, that a wrong-doer never can maintain an action. If a man commits a trespass to land, the occupier is not justified in shooting him, and probably if the occupier were sporting or firing at a mark on his land, and saw a trespasser, and fired carelessly and hurt him, an action would lie. Nor do we desire to give any opinion on the cases cited of Bird v. Holbrook, 4 Bing. 628, and Lynch v. Nurdin, 1 Q. B. 29. But it is obvious, and a truism, to say that a wrong-doer cannot, any more than one who is not a wrong-doer, maintain an action, unless he has a right to complain of the act causing the injury, and complain thereof against the person he has made defendant in the action. Now it may be that, had the mischief here resulted from the personal act of the master, he knowing that the deceased was there, the master would have been liable; and that, as the defendants' servants knew the deceased was on the railway, and because they knew that, were guilty of a wrong to him, they are liable to an action ; but on what reason or principle should the defendants be ? § 453 i, 454.] third persons, against principals. 557 negligences, and torts of his agents and servants, extends not only to the injuries and wrongs of the agent, who is immediately employed by the principal in a particular business, but also to If a servant is driving his master in a carriage, and a person gets up behind, and the servant, knowing it, drives carelessly and injures that person, the servant may be liable, but why the master? The law for reasons of supposed convenience, more than on principle, makes a master liable in certain cases for the acts of his servants — not only in cases in the nature of contract, which depend on different considerations, but in cases independent of contract, such as negligent driving in the public streets when damage is thereby done. This is a responsibility the law has put on them ; there is a duty on them, to take care that their servants do no damage to others by negligence in their work for their master, or to compensate the suiFerer where such damage is done. The public interest may require this for the public benefit ; but why should a wrong- doer have power to create such a responsibility, and such a duty ? No reason can be assigned. Some acts are absolutely and intrinsically wrong, where they directly and necessarily do an injury, as a blow ; others only so from their probable consequences. There is no absolute or intrinsic negligence ; it is always relative to some circumstances of time, place, or person. It is not negligent or wrong for a man to fire at a mark in his own grounds at a distance from others, or to ride very rapidly in his own park ; but it is wrong so to fire near to, and so to ride on, the public highway ; and, though the quality of the act is not altered, it is wrong in whoever does it, and so far it is as though it were intrinsically wrong. So the act of firing, or riding fast in an enclosure, becomes wrong if the person doing it sees there is some one near whom it may damage. But the act is wrong in him only for the personal reason that he knows of its danger ; it would not be wrong in any one else who did not know that. Now, for a wilful act intrinsically wrong by a servant, the master is not liable. By a parity of reason he ought not to be where the act, not wrong in itself, is only so for reasons personal to the servant, and his wilful disregard of them. The master's liability ought to be limited to that which he may antici- pate and guard against ; namely, the middle class of cases we have put. How- ever this may be, it seems to us there can be no action except in respect of a duty infringed, and that no man by his wrongful act can impose a duty ; and as a direction by the master to drive furiously, or in the way called carelessly, in his park, would not be wrong in the master, it cannot be made so by a tres- passer getting there and being hurt, so that, quoad the master, it is damnum absque injuria ; and, if not a wrong in the master when expressly ordered, it cannot be if done by the servant against his orders. The defendants might, if they had thought fit, have directed their servants to move and propel trucks against other trucks without any notice or precaution ; in short, to do what the plaintiff complains of, and if their servants chose to work on those terms, al- though it might be a wasteful way of using their engines, and carriages, no one could say it was wrongful ; then the deceased cannot make it so by coming there himself. Upon these grounds, then, whether he is considered a wrong- doer or not, we are of opinion the action cannot be maintained, and that the plea is good."] 558 AGENCY. [CH. XTII. the injuries and wrongs done by others, who are employed by that agent imder him, or with whom he contracts for the perform- ance of the business ; for the liability reaches through all the stages of the service.^ Thus, for example, where the owner of a house employed an agent to repair the house for a stipulated sum ; and the latter contracted with 0. to do the work, and with D. to furnish the materials ; and D.'s servant, by negligently leav- ing the materials in the road, occasioned an injury to the plain- tiff; he was held entitled to maintain an action for damages therefor against the owner. ^ So, where a warehouseman em- ' See Reeves v. State Bant, 8 Ohio St. 476. " Bush V. Steinman, 1 Bos. & Pull. 409 ; Ante, § 322, note (1). [But the authority of Bush v. Steinman has been, in the modem cases, entirely denied. See Knight v. Fox, 5 Exch. 721 ; 1 Eng. Law and Eq. 477, and Bennett's note ; Qverton v. Freeman, 8 Eng. Law and Eq. 479 ; Hilliard v. Richardson, 3 Gray, 349 ;] Nicholson v. Mdunsey, 16 East, 384 ; Paley on Agency, by Lloyd, 296, 297 ; Weyland v. Elkins, Holt's N. P. 227 ; s. c. 1 Starlde, 272 ; Smith on Merc. Law, 69 (2d ed.) ; Id. pp. 127, 128 (3d ed. 1843). Lord Chief Justice Eyre's opinion, in Bush v. Steinman, shows the difficulty of this doctrine, and the grounds on which it is founded. "At the trial," said he, "I entertained great doubts with respect to the defendant's liability in this action. He appeared to be so far removed from the immediate author of the nuisance, and so far re- moved even from the person connected with the immediate author in the relation of master, that to allow him to be charged for the injury sustained by the plain- tiff, seemed to render a circuity of action necessary. Upon the plaintiff's recov- ery, the defendant would be entitled to an action against the surveyor ; the surveyor, and each of the sub-contracting parties in succession, to actions against the persons with whom they immediately contracted ; and, last of all, the lime- burner would be entitled to the common action against his own servant. I hesitated, therefore, in carrying the responsibility beyond the immediate master of the person who committed the injury, and I retained my doubts upon the sub- ject, till I heard the argument on the part of the plaintiff, and had an opportunity of conferring with my brothers. They, including Mr. Justice BuUer, are satis- fied that the action will lie ; and, upon reflection, I am disposed to concur with them, though I am ready to confess, that I find great difficulty in stating with accuracy the grounds on which it is to be supported. The relation between master and servant, as commonly exemplified in actions brought against the master, is not sufficient ; and the general proposition that a person shall be answerable for any injury which arises in carrying into execution that which he has employed another to do, seems to be too large and loose. The prin- ciple of Stone V. Cartwright, with the decision of which I am well satisfied, is certainly applicable to this case ; but that of Littledale v. Lord Lonsdale comes much nearer. Lord Lonsdale's colliery was worked in such a manner by his agents and servants (or possibly by hia contractors, for that would have made no difference), that an injury was done to the plaintiff's house ; and his Lord- § 454.J THIRD PERSONS AGAINST PRINCIPALS. 559 ployed a master porter to remove some barrels of flour from his warehouse, and the master porter used his own tackle, and brought and paid his own men, and an injury was done to the ship was held responsible. Why ? Because the injury was done in the course of his working the colliery ; whether he worked it by agents, by servants, or by contractors, still it was his work ; and, though another person might have con- tracted with him for the management of the whole concern, without his interfer- ence, yet, the work being carried on for his benefit, and on his property, all the persons employed must have been considered as his agents and servants, not- withstanding any such arrangement ; and he must have been responsible to all the world, on the principle of sic utere tuo, ut alienum non Icedas. Lord Lons- dale having empowered the contractor to appoint such persons under him, as he should think fit, the persons appointed would, in contemplation of law, have been the agents and servants of Lord Lonsdale. Nor can I think that it would -have made any difference, if the injury complained of had arisen from his Lord- ship's coals having been placed' by the workmen on the premises of Mr. Little- dale ; since it would have been impossible to distinguish such an act from the general course of business in which they were engaged, the whole of which business was carried on, either by the express direction of Lord Lonsdale, or under a presumed authority from him. The principle of this case, therefore, seems to afford a ground which may be satisfactory for the present action, though I do not say that it is exactly in point. According to the doctrine cited from Blackstone's Commentaries, if one of a family ' layeth or casteth ' any thing out of the house, which constitutes a nuisance, the owner is chargeable. Suppose, then, that the owner of a house, with a view to rebuild or repair, em- ploy his own servants to erect a hord in the street (which being for the benefit of the public, they may lawfully do), and they carry it out so far as to encroach unreasonably on- the highway ; it is clear that the owner would be guilty of a nuisance ; and, I apprehend, there can be but little doubt, that he would be equally guilty, if he had contracted with a person to do it for a certain sum of money, instead of employing his own servants for the purpose ; for, in contem- plation of law, the erection of the hord would equally be his act. If that be established, we come one step nearer to this case. Here the defendant, by a contractor, and by agents under him, was repairing his house ; the repairs were done at his expense, and the repairing was his act. If, then, the injury com- plained of by the plaintiff was committed in the course of making those repairs, I am unable to distinguish the case from that of erecting the hord, or from Little- dale V. Lonsdale, unless, indeed, a distinction could be maintained (which, however, I do not think possible) , on the ground of the lime not having been delivered on the defendant's premises, but only at a place close to them, with a view to being carried on to the premises and consumed there. My brother Buller recollects a case, which he would have stated more particularly, had he been able to attend. It was this. A master having employed his servant to do some act, the servant, out of idleness, employed another to do it ; and that per- son, in carrying into execution the orders, which had been given to the servant, committed an injury to the plaintiff, for which the master was held liable. The responsibility was thrown on the principal, from whom the authority originally 560 AGENCY. [CH. XVII. plaintiff by the falling of a barrel on him, in consequence of the tackle failing, while it was used by the porter's men ; it was held, that the warehouseman was liable therefor, and that the men moved. This determination is certainly highly convenient and beneficial to the public. Where a civil injury of the kind now complained of, has been sustained, the remedy ought to be obvious, and the persons injured should have only to discover the owner of the house, which was the occasion of the mischief; not be compelled to enter into the concerns between that owner and other persons, the inconvenience of which would be more heavily felt, than any which can arise from a circuity of action. Upon the whole case, therefore, though I still feel difficulty in stating the precise principle on which the action is founded, I am satisfied with the opinion of my brothers." See this case commented on in Duncan v. Findlater, 6 Clark & Finnell, 894, 903, 909, 913, by Lord Cotting- ham, and Lord Brougham, where it seems to have been thought to push the doctrine of the liability of the principal to its fullest extent. Mr. Holt has appended a very able note (p. 229) on this subject, to the case of Weyland ti. Elkins. The following extract contains some striking illustrations and com- ments on the doctrine: "The responsibility of the master," says he, "for the acts of his servant, has been extended by recent oases to a length beyond the ordinary course of practice, and which, unless the principle be duly understood, may appear contrary both to reason and the principles of general equity. The question is of very general concern, and the cases rest upon some nice distinc- tions, which, however subtle and remote, are perfectly consonant with the prin- ciples of legal liability ; a very diiferent thing from moral criminality. The foundation of this branch of our law, is avowedly, in the maxim of the Roman Code (4 Inst. tit. 5), Qui facit per alium, facit per se ; namely, that the agency of a servant is but an instrument; and that any man, having authority over the actions of another, who either expressly commands him to do an act, or puts him in a condition of which such act is a result, or by the absence of a due care and control (either previously in the choice of his servant, or immediately in the act itself) , negligentlj' suffers him to do an injury, shall be responsible for the act of his servant, as if it were the act of himself All the cases rest upon the de- velopment of this principle. We shall here subjoin some of those main divisions, into which it seems to distribute itself. 1. The first case of such responsibility is the express command of the master ; and here the principle is too obvious to need an explanation. 2. The second head is that of reasonable presumption, or, in legal terms, a general command. Whatever a servant is permitted to do, in the ordinary course of his business, is equivalent to this reasonable presump- tion and general command. Thus, if an innkeeper employ a drawer who serves his guests with wine injurious to their health, the party injured may bring an action against the master. 1 Roll. Abridg. 95. Upon the same principle, by the common law (till altered by the statute of Anne), if a servant keep his master's fire negligently, so that his neighbor's house be burnt down thereby, an action lies against the master, because this negligence occurred in his ser- vice. Otherwise, if the servant, going along the street with a torch, by negligence set fire to the house of a neighbor ; for there he is not in his mas- ter's immediate service, and must answer the damage personally. Noy's § 454.] THIRD PERSONS AGAINST PRINCIPALS. 561 were in point of law to be deemed his servants.^ So, the owner of a ship, who appoints the master, and desires him to appoint, and select, and employ, a proper crew, will be responsible for the Max. ch. 44. In all such cases, the term in our law books, general com- mand, is equivalent to the words, the general deputation, or voluntary substftution, of the servant for the master, within the line of his particular employ; and, therefore, all the acts of the servant, within such particular line, are very properly regarded as the acts of the master. 3. The third head of such responsibility is, where the absence of a due care and control by a master, either in the previous choice of a servant, or in the immediate act itself, has occasioned an injury to another. In all such cases, the master is legally as well as morally criminal for the act of his servant, and, therefore, becomes a subject of legal as well as of moral imputation. Thus, a chemist, who employs an unskilful apprentice to mix up drugs and vend in his shop, and the master of a stage-coach, employing a negligent driver, are responsible for the acts of their respective servants. Nor does it make any distinction in these cases, whether such injury be the effect of negligence or wilfulness in the servant, so long as it is within the scope of the master's employ. The reason of this is twofold ; in the first place, because the master, who alone could know his servant, is bound to make choice of a proper one in every respect, both as to good character, which would exclude such wilfulness, and as to skill, which would exclude such negligence. 4. According to the above definition (that the servant is the deputy of the master only within the limits in which he is employed), the master is not responsible for any act of his servant, which makes no part or connection with his service, and which he might or would have committed without such service, such acts being contemporary only with his service, but not any result from it. For example, if my coachman drive over the leg of another man, I am responsible for the injury ; but, if he get off his coach-box and horsewhip a man in the street, it is his act, and not mine. It is nothing which I could foresee or prevent ; it is not the result of character, or the absence of any proper quality which I ought, acting with ordinary dis- cretion, to have required in a driver. All the cases under this exception rest upon the same distinction. The injurious act, for which the master is made responsible, must be something growing out of the particular service, and be committed, quatemus in serviUo. 5. To instance a few more cases. In Bro. Abridg. tit. Trespass, pi. 435, it is said, ' If my servant, without my notice, put my beasts in another's land, my servant is the trespasser, and not I ; because, by the voluntary putting of the beasts there, without my assent, he gains a special property for the time, and so, to this purpose, they are his beasts.' The reason here given, is an example of the subtlety of our old law-writers, who preferred a reason, however technical and remote, to one more obvious and familiar. In Middleton v. Fowler, Salk. 282, Holt, C. J., places the law upon its proper foundation, when he states it, as a general position, ' that no ' Randleson v. Murray, 8 Adolph. & Ellis, 109. See also Witte v. Hague, 2 Dowl. & Ryl. 33. 562 AGENCY. [CH. XTII. negligent acts of the crew, for they are to be deemed his servants for the management and government of the ship.^ [But the own- ers of a vessel are not liable for the negligence of stevedores em- master is chargeable with the acts of his servant, but when he acts in the execution of the authority given him.' In other words, when a servant quits sight of the object for which he was employed, and without reference ft) his master's business or orders, commits, from his own malice, some wilful and independent act, he is no longer presumed to be acting in pursuance of his general authority as a servant ; and, according to the doctrine of Lord Holt, his master is not responsible for the act which he does. Thus, in McManus v. Cricket, 1 East, 106, the Court of King's Bench determined, that a master was not liable in trespass for the wilful act of his servant in driving his inaster's carriage against another ; such act being done without the direction or assent of the master ; admitting, at the same time, that the master would be liable for any damage occasioned by the negligence and unskilfulness of his servant, whilst in his employ. In the same manner, although the master of a ship is not discharged of his responsibility for the acts of his crew, notwithstanding they are done under the direction of a pilot, who, by the regulations of a statute, supersedes the master, for the time, in the government of the ship ; yet, if one of the ship's crew does a wilful act of injury to another ship, without any direction from, or privity with, the master, trespass cannot be maintained against the master, although he was on board at the time. Bowcher v. Noid- strom, 1 Taunt. 568 ; and see the cases referred to in the argument. So, in a later case, Nicholson v. Mounsey, 16 East, 384, it was determined, that the captain of a sloop-of-war was not responsible in an action on the case, which is a material distinction, for damages done by running down another vessel ; the mischief appearing to have been committed during the watch of the lieutenant, ■ who was upon deck, and had the actual management of the sloop at the time ; and when the captain was not upon deck, and was not called by his duty to be there. That case, however, was determined upon this principle : 1st. That the defendant and the lieutenant were equally the servants of a superior, and stationed on board by the same authority. 2d. That the defendant had no power either to appoint or dismiss his officers and crew. 6. With respect to the description of agents and servants, for whose acts the master may be respon- sible, there is a peculiarity in the English law, which embraces a very wide and extensive relation. In the civil law, the liability was narrowed to the person standing in the relation of a paterfamilias to the wrong-doer. Dig. Lib. 9, tit. 3. Our law extends not only to cases where the agent is a domestic, but it throws the responsibility upon the principal, from whom the authority, of which the injury is a consequence, originally moved. Thus, where a master, having employed his servant to do some act, and the servant, out of idleness, employed another to do it, and that person, in carrying into execution the orders, which had been given to the servant, committed an injury to the plaintiff, the master ' Per Littledale, J., in Laugher v. Pointer, 6 B. & Cressw. 547, 664, per Lord Tenterden ; Id. pp. 674-676. § 454.] THIRD PERSONS AGAINST PRINCIPALS. 563 ployed to unload the cargo by the consignees of the charterers of the vessel, for a gross sum.i] The same principle prevails, where the owner of a farm has it in his own hands, and he does was held responsible. Reported from Buller, J., by Eyre, C. J., in Bush v. Steinman, 1 Bos. & Pull. 404. 7. The general proposition, that a person shall be answerable for an injury, which arises in carrying into execution that which he has employed another to do, is perhaps too large and loose ; but in the case of Littledale v. Lord Lonsdale, 2 H. Bl. 267-269 ; and in Bush v. Steinman, 1 Bos. & Pull. 404, the principle was carried to a great extent. In the former case, the defendant was held responsible for an injury to the plain- tiff's horse, done by persons with whom he had contracted (and not merely employed as agents or servants) to work a tolliery, on the ground that the colliery was the defendant's property; that it was upon his land; and that the description of persons working it could make no diiFerence in his respon- sibility. Li Bush V. Steinman, the decision was this : A., having a house by the road-side, contracted with B. to repair it for a stipulated sum ; B. con- tracted with C. to do the work ; and C. with D. to furnish the materials. The servant of D. brought a quantity of lime to the house and placed it in the road, by which the plaintiff's carriage was overturned; it was held, that A. was answerable for the damage sustained. In this case, the court principally relied upon the ease of Littledale v. Lonsdale. See likewise Stone v. Cartwright, 6 T. R. 411; Flower v. Adam, 2 Taunt. 314; Payne v. Rogers, 2 H. Bl. 360; Leshe v. Pounds, 4 Taunt. 649." See also Laugher v. Pointer, 6 B. &Cressw. 647, where most of the cases are reviewed ; Hughs v. Boyer, 9 Watts, 669 ; MilHgan v. Wedge, 12 Adolph. & Ellis, 787, 742 ; Brown v. Lent, 20 Vt. 638. [The authority of Bush v. Steinman seems to be shaken in a recent English case, Reedie v. London & Northwestern Railway Co. 4 Wels., Hurl. & Gor. 244.] ' [Linton v. Smith, 8 Gray, 147. Thomas, J., there said, "The defendants were the owners of an English vessel called The Syphax. They entered into a charter-party to take a cargo from London, and deliver it alongside of the vessel to the owners in a port of Boston. The consignees of the vessel in Boston, with the consent of the master, made a contract with John and Daniel Hurley, stevedores, to discharge the cargo on to the walk. By this contract, the stevedores were to unload the entire cargo for a certain gross sum, to find all that was necessary therefor, and to make good all damage to the cargo in unloading ; the master and crew having nothing to do with it. The business of stevedores is a separate, distinct, well-recognized business in Boston, which the Hurleys had followed for many years. While, under this contract, the stevedores were unloading the vessel, the plaintiff's leg was broken, through negligence of the stevedores or the men in their employ. " The question is, whether the owners of the vessel are liable for that in- jury? This question, stated in another form, is, whether the relation existing between the owners of the vessel and the stevedores was that of master and servant, or contractor and contractee. (The word is a bad one, but there is no substitute.) " The general rule is, that he who does the injury must respond. The well- 564 AGENCY. [CH. XVII. not personally interfere in the management, but appoints a bailiff or hind, who hires other persons under him, all of them being paid out of the funds of the owner, and selected by himself, or known exception is, that the master shall be responsible for the doings of the servant whom he selects, and through whom, in legal contemplation, he acts. " But when the person employed is in the exercise of a distinct and inde- pendent employment, and not under the immediate supervision and control of. the employer, the relation of master and servant does not exist, and the liability' of a master for his servant does not attach. ' ' Such, we think, is the case at bar. The Hurleys were exercising a distinct business, under an entire contract for a gross sum. The relation is that of contractor and contractee. ' ' The law upon this subject has been so recently considered by us in Hilliard I). Richardson, 3 Gray, 849, that we content ourselves with referring to two or three cases quite directly in point. " In the well-known case of Laugher v. Pointer, 5 B. & Cressw. 547, the owner of a carriage hired of a stable-keeper a pair of horses to draw it for a day, the owner of the horses providing a driver, through whose negligent driving an injury was done to the horse of a third person. It was held by Lord Tenterden and Littledale, J., that the owner of the carriage was not liable. Bayley and Holroyd, JJ., dissenting. " The case of Quarman v. Burnett arose in the Exchequer upon the same state of facts as in Laugher v. Pointer. The Court of Exchequer adopted and aflSrmed the view of the law before taken by Lord Tenterden and Mr. Justice Littledale, and held that the owner was not liable ; a very elaborate opinion being delivered by Mr. Baron Parke. 6 Mees. & Wels. 499. " In Milligan v. Wedge, 12 Adolph. & Ellis, 737, and 4 P. & Dav. 714, the buyer of a bullock at Smithfield Market employed a licensed drover to drive it from Smithfield. The drover employed a boy to drive. Mischief was occa- sioned by the bullock through the careless driving of the boy. It was held by all the judges of the Queen's Bench that the owner of the bullock was not liable. " There is also a well considered case in Michigan to the same point. De Forrest v. Wright, 2 Mich. 368. A public licensed drayman was employed to haul a quantity of salt from a warehouse, and deliver it at the store of the employer at so much a barrel. While in the act of delivering it, one of the barrels, through the carelessness of the drayman, rolled against and injured a person on the sidewalk. The court held, that the employer was not liable for the injury ; the drayman exercising a distinct and independent employ- ment, and not being under the immediate control and supervision of the employer. " The case of Randleson v. Murray, 8 Adolph. & Ellis, 109, and 8 Nev. & P. 239, would seem at first to conflict with the cases before referred to. A warehouseman employed a porter to remove a barrel from his warehouse. The master-porter employed his own men and tackle. Through the neg- ligence of the men the tackle failed, and the barrel fell and injured the § 454.J THIRD PERSONS AGAINST PRINCIPALS. 565 by a person specially deputed by him ; for the owner will be an- swerable for any damage, which happens through their default, because their neglect or default is his, as they are appointed by and through him.^ So, in the case of a mine, if the owner employs a steward or manager to superintend the working of the mine, and to hire under-workmen, and he pays them on behalf of the owner ; these under-workmen become the immediate ser- vants of the owner, and the owner will be answerable for their default in doing any acts on account of their employer .^ So, where a corn-factor was absent from hjs shop, and during his ab- ■ sence, his sister managed his business ; and she, wanting to send out some corn to a customer, for this purpose employed a person, who occasionally worked for her brother, and who, at the time of such employment, was in a state of inebriety ; and the man so employed, contrary to the practice in the corn-factor's shop, took out the corn on a small warehouse truck, which he negligently left in the road, whereby a person, driving along in a chaise, was injured ; it was held that the corn-factor was liable in an action at the suit of the person injured, for this negligent act of the drunken man, upon the ground, that the employment of a drunken man was in itself an act of negligence, and that, by such employment through his agent, the corn-factor set the whole thing in motion, and must, therefore, be liable for the conse- quences.3 So, where the owner of land employed a mechanic to plaintiff. The warehouseman was held liable. The report does not show whether the porter was acting upon a contract to do the job for a specific sum, or on wages. The case is put, in the decision, on the relation of master and servant. See remarks of Lord Denman, C. J., and Williams, J., in Milligan V. Wedge, 12 Adolph. & Ellis, 741, 742, and 4 P. & Dav. 717. " The distinction upon which these cases and many others referred to and examined in Hilliard v. Richardson turns, is, whether the relation of master and servant exists, or that of contractor and contractee. The line of separa- tion may be sometimes indistinct and shadowy, but in the case before us it is sufficiently clear. " We are of opinion, upon the facts stated, that the owners of the vessel were not liable, and that the exceptions must be sustained." See also Blakie ». Stenbridge, 24 Boston Law Kep. 428.] ' Ibid. ' Ibid. ; Stone v. Cartwright, 6 T. R. 416 ; Littledale v. Lord Lonsdale, 2 H. BI. 267, 269 ; Bush v. Steinman, 1 Bos. & Pull. 404. 'Wanstall v. Pooley, Mich. Term, 1841, Q. B., cited 6 Clark & Finnell, 910, note. See also Dunlap v. Findlater, 6 Clark & Finnell, 894, 903, 909, 910. 566 AGENCY. [CH. XTII. make a drain for him on the land, and to extend it therefrom to a public drain, the mechanic procuring the necessary materials, hiring laborers, and charging a compensation for his services and disbursements ; it was held, that the mechanic was to be deemed in the service of his employer, so as to make the employer responsible to a third person, who sustained damage in his prop- erty by reason of the want of skill, or want of due care and diligence, on the part of the mechanic, and those employed under him in digging the drain.^ [So where A. employed B. at a stipu- lated sum, to remove a house from one side of the street to the other, and B. hired all the hands, A. having nothing to do with • the operations in moving the building, A. was nevertheless held liable for the negligence of B., in leaving a hole open in the street, whereby the plaintiff's horse was killed.^ The simple fact, however, that the person who did the work was employed by the job, and not by the day, cannot be decisive upon the question of the employer's liability. For if the relationship of master and servant exists at the time ; if the employer had the power to con- trol the manner in which the work is done, he is responsible for the negligence of the servant who executes it.^ So in Burgess v. Gray,* the defendant had employed one Palmer to make a drain from his house to the street sewer, and Palmer's men left a pile of dirt in the street, whereby the plaintiff was injured ; but the jury having found upon the evidence that the defendant had not completely parted with the control over the work, the court of common pleas held him legally liable for the injury, although ' Stone V. Codman, 15 Pick. 297. It does not appear, that in this case the work was undertaken to be done by the mechanic by the' job, or as an inde- pendent employment. If it had been, it mi^ht have admitted of a very different consideration. [And see Peachey v. Rowland, 16 Eng. Law and Eq. 442, and Bennett's note.] See post, § 454 a. " Wiswall V. Brinson, 10 Ired. 664; Bed qucere, and Ruffin, C. J., dis- sented, in an able judgment. In Stone v. Cheshire R. R. Corporation, 19 N. H. 100, where a railroad corporation contracted with certain persons to build a section of the road, and while the contractors, or their servants, were blast- ing rocks upon the road, a stone fell upon the plaintiff and injured him, it was held, that he had his remedy against the railroad corporation ; and the cases of Bush V. Steinman, and Lowell v. Boston & Lowell R. R. 23 Pick. 24, were fully approved.] 3 Sadler v. Henlock, 4 El. & Bl. 670 ; 30 Eng. L. and Eq. 167. See the case stated, post, § 454 c, in the judgment to Hilliard v. Richardson. * 1 Com. B. Rep. 678 ; See post, opinion in Hilliard v. Richardson. §§ 454, 454 a.] third persons against principals. 567 Palmer was doing the work by contract, and was himself a master- builder. [The liability of one person for damages arising from the negligence or misfeasance of another, on the principle of re- spondeat superior, is confined in its application to the relation of master and servant, or principal and agent, and does not extend to cases of independent contracts not creating those relations, and where the employer does not retain the control over the mode and manner of the performance of the work under the contract. But where the employer retains the control and direction over the mode and manner of doing the work, and an injury results from the negligence or misconduct of the contractor or his ser- vant or agent, the employer is placed under a liability equal and similar to that which exists in the ordinary case of principal and agent.^] § 454 a. But here again nice questions have arisen in the ap- plication of this last doctrine to cases of sub-agency, where the facts presented the inquiry, when, and under what circumstances, the parties employed are to be deemed the servants or sub-agents of the principal employer, and when only the sub-agents of the immediate person, by whom they are actually employed. In the former case, the principal employer is liable for their negli- gent acts ; in the latter, not. Some cases may be put to illustrate the embarrassments which occasionally surround the subject, and perhaps make it difficult to lay down any positive rule of distinc- tion, applicable to all the varieties of human transactions. In one case, a builder was employed by a committee of a club to make extensive alterations and improvements in the club-house, and, ^mong other things, to prepare and fix the necessary gas- fittings. The builder made a sub-contract with a gas-fitter, to execute the latter portion of the work, by whom, or whose ser- vants, it was performed in such a negligent manner, that the gas exploded, and seriously injured the plaintiff and his wife. A suit was brought against the builder; and the question arose whether he was responsible for the injury. It was held, that he was not, because the gas-fitter did not stand to him in the rela- ' [Cincinnati v. Stone, 5*tDhio St. 38. See Clark v. Vermont & Canada Railroad, 28 Vt. 103 ; Pawlet v. Rutland & Wash. Railroad, id. 297. See Blackwell v. Wiswall, 24 Barb. 365 ; Ladd e. Chotard, 1 Ala. 366 ; Felton v Deall, 22 Vt. 170.] 568 AGENCY. [CH. XTII. tiou of a servant, but was a mere sub-contractor.^ In another case, where the buyer of a bullock employed a licensed drover to drive it from Smithfield, in London, to his slaughter-house, with- out the city ; and, by the by-laws of the city, no person but a licensed drover can drive cattle for hire from Smithfield, though the owner may drive them himself; the drover employed a boy to drive the bullock to the slaughter-house ; and the bullock did the mischief complained of, while the boy was driving him ; it was held, that the boy was not the servant of the butcher, and, therefore, he was not liable for the negligent acts of the boy.^ [In another case, a railroad company contracted tmder seal with certain persons, to make a portion of the line, and, by the con- tract, reserved to themselves the power of dismissing any of the workmen of the contractors ; the workmen in constructing a bridge over a public highway, negligently caused the death of a person passing along the highway beneath, by allowing a stone to fall upon him ; after elaborate argument, it was decided, in an action against the company, by the administratrix of the deceased, that they were not liable, and that the terms of the contract did not make any difference.^] The ground of these decisions seems to have been, that, where the party employed by the principal ex- ercises a distinct and independent employment, he, and the per- sons whom he employs under him, are not to be deemed the servants of the principal, but he stands in the relation of a sub- contractor only, and the persons employed by him are his own servants.* [§ 454 h. Thus, where the defendants contracted to pave a cer- tain highway district, but sub-contracted with B. to pave a par- ' Rapson v. Cubitt, 9 Mees. & Wels. 710. See also Winterbottom v. Wright, 10 Mees. &Wels. 109, 111. ' Milligan v. Wedge, 12 Adolph. & El. 739. [This case is explained in Sadler v. Hancock, 30 Eng. L. and Eq. 169 ; 4 El. & B1..670.] = Reedie ». London & Northwestern Railw. Co. 4 Welsby, Hurlstone, & Gordon, 244. See Cuthbertson v. Parsons, 10 Eng. Law and Eq. 462 ; Buffalo V. HoUoway, 3 Seld. 493 ; Hickcock e. Plattsburgh, 16 N. Y. 161 ; Kelly v. New York, 1 Kernan, 432 ; Storrs ». Utica, 17 N. Y. 107 ; Blake v. Ferris, 1 Seld. 48 ; Pack v. Mayor of New York, 4 Seld. 222. * See Milligan v. Wedge, 12 Adolph. & Ellis,-?37, and particularly what was said by Lord Denman, and by Mr. J. Williams. See also Martin u. Temper- ley, 4 Q. B. 298 ; The Jurist, Feb. 25, 1843, No. 320, p. 150. See The Agri- cola, id. pp. 157, 159. §§ 454a, 4546.] third persons against principals. 569 ticular street therein, and B.'s men negligently left a pile of paving-stones in the street, over which the plaintiff fell and broke his leg, it was held that the defendants were not liable, although they furnished all the stones, and sent them to the street in their carts.i So, where the defendant employed A. to fill in the earth over a drain leading from the defendant's house to the main sewer in the highway, and A.'s men, after filling up the drain, left the earth piled up so high above the level of the road, that the plaintiff drove against it. and was injured, it was held that the defendant was not liable, A. doing the work as a contractor, and the defendant not having any thing to do with the manner in which the work was done, and the negligent manner not being necessary to the execution of the work.^ So in Knight v. Pox,^ a railway company entered into a contract with A. to construct a branch line ; A. contracted with the defendant to erect a tubular bridge, part of the works ; the defendant had a surveyor, C, whom he paid by a yearly salary of £250, to attend to his general busi- ness ; and after obtaining the contract for the bridge, he con- tracted with C. to provide the necessary scaffolding, for which he was to receive .£40 irrespective of his salary, the defendant to furnish the requisite materials including lights. One of the poles of the scaffolding rested on a highway ; and, from the want of sufficient light, the plaintiff fell over the pole at night, and broke her leg. It was held that the defendant was not liable for the injury ; C. being at the time in the relation of a sub-contractor to the defendant, and not a servant or agent. In like manner where a railway company contracted with B. to excavate a road in order to lay an embankment for the railway, and the work was done under the general superintendence of the company's sur- veyor, who furnished the plans ; but the foreman of B. was the person to decide in what manner the directions of the surveyor should be carried out, and the surveyor directed the foreman to cut through only the half of a certain rog,d at once ; but B.'s men, notwithstanding this direction, cut through the whole, ■ Overton v. Freeman, 8 Eng. Law and Eq. 479 ; 11 Com. B. 867. See Hilliard v. Ri^ardson, post,,§ 454 c. ' Peachey'«. Rowland, 13 Com. B. 182; 16 Eng. Law and Eq. 442, and Bennett's note. ' 1 Eng. Law and Eq. 477, and Bennett's note ; 5 Exch. 721. 570 AGENCY. [CH. XVII. ■whereby the plaintiff's adjoining land was inundated, it was held that the railway company was not liable for the injury. i] [§ 454 c. This whole subject of the law of Respondeat superior was fully examined in a late case in Massachusetts, in which the authorities were very elaborately and critically examined by Judge Thomas, and the true principle of the law on this subject clearly stated. In that case the evidence tended to prove the following facts : Between the hours of five and six in the after- noon of December 5th, 1851, the plaintiff was driving in a wagon in and through a highway, when the horse suddenly took fright at a pile of boards lying by the side of the way, but within its limits, bolted from his course, and carried the wheel of the wagon violently against a post neair the edge of the sidewalk, whereby the plaintiff was thrown violently from the wagon, and seriously injured. The boards were placed there the same afternoon, and not long before the occurrence of the accident, by a teamster, acting under the direction of Lewis Shaw, with the intention of allowing them to remain till the morning of the next day, and then removing them to the land adjoining the highway. This land, and the buildings upon it, belonged to the defendant, and were in his possession, except so far as they were occupied by Shaw in the execution of a written contract with the defendant, and under license from him. By that contract, Shaw agreed, for a specific price, and before a day named, to alter a certain paper factory into two dwelling-houses, according to a plan and specifi- cations annexed to the contract, and to make certain repairs thereon, and to furnish all the requisite materials. The defend- ant also gave Shaw license to use, while he should be engaged ' [Steel V. The Southeastern Railw. Co. 82 Eng. Law and Eq. 366. Cress- well, J., said, "I also am of opinion that there was no evidence in this case that could properly have been left to the jury to show that the defendants or their servants had been guilty of any such negligence as to make them respon- sible. The person who did the work proved that he was employed by Furness. If it could have been shown that the plaintiff's land was flooded in consequence of something done by the orders of Mr. Phillips, the company's surveyor, it might have been said that it was the same as if Phillips had done it with his own hands, and then the company would have been responsible. But, it seems that the order given by Phillips was, to do the work in a different manner from that adopted by Furness's men. This was work done under a contract, — whether parol or otherwise, is immaterial, — and there is nothing to show negli- gence in any one for whose acts the company are responsible."] §§ 454 J, 454 c.] THIRD PERSONS AGAINST PRINCIPALS. 571 in the execution of the contract, one of tlie buildings upon the land to shape and finish work for buildings of his own, in which " the defendant had no interest. Shaw procured the boards and brought them to the place, chiefly for the purpose of using them in the alteration of the defendant's buildings, under the written contract, and was, at the time of the accident, actually engaged in the execution of that contract. The presiding judge instructed the jury, among other things, that " the act of laying and leaving the boards in the highway by Shaw, must, for the purposes of this action, be deemed the act of the defendant ; " and that, " as the boards at which it was alleged that the horse took fright, were procured by Shaw, to be used, in whole or in part, in performance and execution of the written contract between him and the defendant, and were materials necessary therefor, the defendant was responsible for the acts of Shaw in placing the boards in the highway, and suffering them to remain there ; and that his liability in relation thereto was in all respects the same as the liability of Shaw." But this ruling was reversed by the whole court.i But where a person is employed to do an unlawful act, ' [Hilliard v. Richardson, 3 Gray, 349. In a very elaborate judgment, Thomas, J., said, "The questions raised by the report are upon the instruc- tions given by the presiding judge to the jury. The material question, that upon which the case hinges, is whether, upon the facts reported, the defendant is liable for the acts and for the negligence and carelessness of Shaw. In look- ing upon the case reported, it is to be observed, 1st. That the acts done by Shaw, and which are charged as negligence, were not done by any specific direction, or order, or request of the defendant. 2dly. That between the defendant and Shaw the ordinary relation of master and servant did not exist. 3dly. That the acts done, and which are charged as negligence, were not done upon the land of the defendant. They did not consist in the creating or suffer- ing of a nuisance upon his own land, to the injury of another. 4thly. That the boards placed in the highway were not the property of the defendant ; that he had no interest in them, and could exercise no control over them. 5thly. That the defendant did not assume to exercise any control over them. 6thly. That there is no evidence of any purpose on the part of the defendant to injure the plaintiff, or anybody else, or so to use his property, or suffer it to be so used, as to occasion an injury. Was the defendant liable for the negligent acts of Shaw in the use of the highway ? As a matter of reason and justice, if the question were a new one, it would be difficult to see on what solid ground the claim of the plaintiff could rest. But he says that such is the settled law of this Commonwealth, and that the question is now no longer open for discus- sion. Three cases are especially relied upon by the plaintiff, as settling the rule in Massachusetts. They are Stone v. Codman, 16 Pick. 297 ; Lowell v. 572 AGENCY. [CH. ZVII. by -which an injury is occasioned to a third person, the employer is liable for the injury, although the person employed be a con- tractor, and the act be that of his servants. In such case it is Boston and Lowell Railroad, 23 Pick. 24; and Earle v.'Hall, 2 Met. 353. Stone V. Codman -was this : The defendant employed one Lincoln, a mason, to dig and lay a drain from the defendant's stores, in the city of Boston, to the common sewer. By reason of the opening made by Lincoln and the laborers in his employment, water was let into the plaintiff's cellar, and his goods were wet. 1. Lincoln procured the materials and hired the laborers, charging a compensation for his services and disbursements. 2. The acts causing the injury to the plaintiff's goods were done upon the defendant's land, and in the use of it for the defendant's benefit. 3. There was no contract, written or oral, by which the work was to be done for a specific price, or as a job. 4. The case is expressly put upon the ground that between the defendant and Lincoln the relation of master and servant existed. The Chief Justice, in delivering the opinion of the court, said : ' Without reviewing the authorities, and taking the general rule of law to be well settled, that a master or principal is respon- sible to third persons for the negligence of a servant, by which damage has been done, we are of opinion, that, if Lincoln was employed by the defendant to make and lay a drain for him, on his own land, and extending thence to the public drain, he (Lincoln) procuring the necessary materials, employing labor- ers, and charging a compensation for his own services and his disbursements, he must be deemed, in a legal sense, to have been in the service of the defendant, to the effect of rendering his employer responsible for want of skill, or want of due diligence and care ; so that, if the plaintiff sustained damage by reason of such negligence, the defendant was responsible for such damage.' The case well stands on the relation of master and servant. The work was under the control of the defendant. He could change, suspend, or terminate it, at his pleasure. Lincoln was upon the land with only an implied license, which the defendant could at any moment revoke. The work was done by Lincoln, not on his own account, but on the defendant's. The defendant was indeed acting throughout by his servants. The injury was done by the escape of water from land of the defendant to that of the plaintiff, which the defendant could have and was bound to have prevented l The second case relied upon by the plain- tiff is that of Lowell v. Boston and Lowell Railroad, 23 Pick. 24. In a pre- vious suit (Currier v. Lowell, 16 Pick. 170), the town of Lowell had been compelled to pay damages sustained by Currier by reason of a defect in one of the highways of the town. That defect was caused in the construction of the railroad of the Boston and Lowell Company. It consisted in a deep cut through the highway, made in the construction of the railroad. Barriers had been placed across the highway, to prevent travellers from falling into the chasm. It became, in the construction of the railroad, necessary to remove the bar- riers, for the purpose of carrying out stone and rubbish from the deep cut. They were removed by persons in the employ of the corporation, who neg- lected to replace them. Currier and another person, driving along the high- way in the night-time, were precipitated into the deep cut, and seriously injured. Currier brought his action against the town of Lowell, and recovered damages. § 454 C.J THIRD PERSONS AGAINST PRINCIPALS. 573 not material that the -workmen were not under the immediate direction of the person souglit to be charged ; for if the whole work itself be illegal, and cannot be done at all except by a wrongful act, the original employer is responsible.^] This action was to recover of the railroad corporation the amount the town had been so compelled to pay. The railroad corporation denied their responsibility for the negligence of the persons employed in the construction of that part of the railroad where the accident took place, because that section of the road had been let out to one Noonan, who had contracted to make the same for a stipu- lated sum, and had employed the workmen. This defence was not sustained ; nor should it have been. The defendants had been authorized by their charter to construct a railroad from Boston to LoweU, four rods wide through the whole length. They were authorized to cross turnpikes or other highways, with power to raise or lower such turnpikes or highways, so that the railroad, if necessary, might pass conveniently over or under the same. St. 1830, c. 4, §§ 1, H. Now, it is plain that it is the corporation that are intrusted by the legislature with the execution of these public works, and that they are bound, in the construction of them, to protect the public against danger. It is equally plain that they cannot escape this responsibility by a delegation of this power to others. The work was done on land appropriated to the purpose of the rail- road, and under authority of the corporation, vested in them by law for the purpose. The barriers, the omission to replace which was the occasion of the accident, were put up and maintained by a servant of the corporation, and by their express orders ; and that servant had the care and supervision of them. The accident occurred from the negligence of a servant of the railroad corpora- tion, acting under their express orders. The case, then, of Lowell v. Boston and LoweU Kailroad stands perfectly well upon its own principles, and is clearly distinguishable from the case at bar. The court might well say, that the fact of Noonan being a contractor for this section did not relieve the corporation from the duties or responsibility imposed on them by their charter and the law, especially as the failure to replace the barriers was the act of their immediate servant, acting under their orders. The only respect, it seems to us, in which this case aids the doctrine of the plaintiff, is that the learned judge who delivered the opinion of the court cites with approbation the case of Bush v. Steinman, 1 Bos. & PuU. 404, as ' fully supported by the authorities and well- established pruiciples.' It is sufficient to remark, in passing, that the decision of the case before the court did not involve the correctness of the rule in Bush ■ V. Steinman. The case of Earle v. Hall, 2 Met. 363, is the third case cited by the plaintiff as affirming the doctrine upon which he relies. Hall agreed to sell land to one Gilbert. Gilbert agreed to build a house upon and pay for the land. While the agreement was in force, Gilbert, in preparing to build the house on his own account, by workmen employed by him alone, undermined the wall of the adjoining house of the plaintiff. It was held that Hall was not answerable for the injury, although the title to the land was in him at the tune the injury Ellis V. The Sheffield Gas Co. 2 El. & Bl. 767 ; 22 Eng. Law and Eq. 198. 574 AGENCY. [CH. XVII. § 455. The liability of the principal to third persons, for the misfeasances, negligences, and torts of their agents and servants, may also arise, although the act is not done, or the wrong is was committed. The general doctrine is stated to be, that we are not merely to inquire who is the general owner of the estate, in ascertaining who is respon- sible for acts done upon it injurious to another ; but who has the efficient control, for whose account, at whose expense, under whose orders is the business carried on, the conduct of which has occasioned the injury. The case of Bushu. Stein- man is cited as a leading case, ' very peculiar, and much discussed ; ' but we do not perceive that the point it decides is affirmed. The general scope of the reasoning in Earle u. Hall, as well as the express point decided, are adverse to it. These cases, neither in the points decided, nor the principles which they involve, support the rule contended for by the plaintiff. But the plaintiff says that the well-known case of Bush v. Steinman is directly in point, and that that case is still the settled law of Westminster Hall. If so, as authority, it would not conclude us ; though, as evidence of the law, it would be entitled to high consideration. Upon this- case of Bush v. Steinman three questions arise: 1. What does it decide.'' 2. Does it stand well upon authority or reason? 3. Has its authority been overthrown or substantially shaken and impaired by subsequent decisions ? 1. The case was this : A., having a house by the road- side, contracted with B. to repair it for a stipulated sum ; B. contracted with C. to do the work; C. with D. to furnish the materials; the servant of D. brought a quantity of lime to the house, and placed it in the road, by which the plaintiff's carriage was overturned. Held, that A. was answerable for the damage sustained. 2. At the trial, Chief Justice Eyre was of opinion that the defendant was not answerable for the injury. In giving his opinion at the hearing in banc, he says he found great difficulty in stating with accuracy the grounds on which the action was to be supported ; the relation of master and servant was not suf- ficient ; the general proposition, that a person shall be answerable for any injury which arises in carrying into execution that which he has employed another to do, seemed to be too large and loose. He relied, as authorities, upon three cases only : Stone u. Cartwright, 6 T. K. 411 ; Littledale v. Lonsdale, 2 H. Bl. 267 ; and a case stated upon the recollection of Mr. Justice BuUer. " Stone V. Cartwright lays no foundation for the rule in Bush v. Steinman. The decision was but negative in its character. It was that no action would lie against a steward, manager, or agent for the damage of those employed by him in the service of his principal. This is the entire point decided. Lord Kenyon said, ' I have ever understood that the action must be brought against the hand committing the injury, or against the owner for whom the act was done.' The injury complained of was done upon the land of the defendant, and by his servants. It consisted in so negligently working the defendant's mine as to undermine the plaintiff's ground and buildings above it, so that the surface gave way. The mine was in the possession and occupation of the de- fendant ; the injury was direct and immediate ; the workmen were the servants of the owner. The. case of Littledale v. Lonsdale, in its main facts, cannot be distinguished from Stone v. Cartwright. It stands upon the same grounds. The defendant's steward employed the under-workmen. They were paid out § 455.J THIRD PERSONS AGAINST PRINCIPALS. 575 not committed, within the scope of the ordinary business of the principal, if it is not done or committed by the previous com- mand, or with the subsequent assent, adoption, or ratification of of the defendant's funds. The machinery and utensils belonged to the defend- ant, and all the persons employed were his immediate servants. The third case was but this : A master having employed his servant to do some act, this servant, out of idleness, employed another to do it; and that person, in carrying into execution the orders which had been given to the servant, committed an injury to the plaintiff, for which the master was held liable. What was the nature of the acts done does not appear. And whether the case was rightly decided or not, it is difficult to see any analogy between it and the case the Lord Chief Justice was considering. Mr. Justice Heath referred to the action for defama- tion, brought against Tattersall, who was the proprietor of a newspaper with sixteen others. The libel was inserted by the persons whom the proprietors had employed by contract to collect the news and compose the paper ; yet the defendant was held liable. It would seem to be not very material who com- posed the paper, but who owned and' published it. Mr. Justice Heath also cited, as in point, the case of Eosewell v. Prior, 2 Salk. 460, which was an action upon the case for obstructing ancient lights. The defendant had erected upon his land the obstruction complained of. There had been a former recov- ery for the erection ; this suit was for the continuance. The premises of the defendant had been leased. The question was, whether the action would lie for the continuance after his lease. ' Et per curiam. It lies; for he trans- ferred it with the original wrong, and his demise affirms the continuance of it ; he hath also rent as a consideration for the continuance, and therefore ought to answer the damage it occasions.' Mr. Justice Kooke, in addition to the cases of Stone V. Cartwright, and Littledale v. Lonsdale, alluded also to the case of Michael v. Alestree, 2 Lev. 172, in which it was held that an action might be maintained against a master for damage done by his servant to the plaintiff in exercising his horses in an improper place, though he was absent, because it should be intended that the master sent the servant to exercise the horses there. See Parsons v. Winchell, 5 Cush. 595. The examination of these cases justifies the remark that Bush v. Steinman does not stand well upon the authorities, and is not a recognition of principles before that time settled. The rule it adopts is apparently for the first time announced. Does it stand well upon the reason- ing of the court ? We think all the opinions given in it lose sight of these two important distinctions : In the cases cited and relied upon, the acts done, which were the subjects of complaint, were either acts done by servants or agents, under the efficient control of the defendants, or were nuisances created upon the premises of the defendants to the direct injury of the estate of the plaintiffs. The servant of the lime-burner was not the servant of the defendant ; over him the defendant had no control whatsoever ; to the defendant he was not respon- sible. There was no nuisance created on the delendant's land. It does not appear that the defendant owned the fee of the highway. The case is put on the ground that the lime was put near the premises of the defendant, and with a view of being carried upon them. The lime was not on the defendant's land ; he did not direct it to be put there ; he had not the control of the man who put 576 AGENCY. [CH. XVII. the principal. Thus, if the principal should direct his agent to commit a trespass, or to make a conversion of the property of a third person, or he sliould subsequently ratify or adopt the act, it there. Mr. Justice Heath said, ' I found my opinion on this single point ; viz., that all the sub-contracting parties were in the employ of the defendant.' This is not so, unless it be true that a man who contracts with a mason to build a house employs the servant of the man who burns the lime. Mr. Justice Eooke said, ' The person, from whom the whole authority is originally derived, is the person who ought to be answerable ; and great inconvenience would follow if it were otherwise.' It cannot be meant that one who builds a house is to be respon- sible for the negligence of every man and his servants who undertakes to furnish materials for the same. Such a rule would render him liable for the most re- mote and inconsequential damages. But the act complained of did not result from the authority of the defendant. The authority under which the servant of the lime-burner acted, was that of his master. And neither the lime-burner nor his servant was acting under the authority of the defendant, or subject to his control. The defendant might, with the same reason, have been held liable for the carelessness of the servant who burnt the lime, and of the servant of the man who furnished the coals to burn the lime. 8. Has the doctrine of the case of Bush V. Steinman been affirmed in England, or has it been overruled and its authority impaired ? The plaintiff cites the case of Sly «. Edgley, at nisi pnus, 6 Esp. 6. The defendant, with others, then owning several houses, the kitchens of which were subject to be overflowed, employed a bricklayer to sink a large sewer in the street. The bricklayer opened the sewer and left it open, and the plaintiff fell in. It was contended that the bricklayer was not the servant of the defendant. He was employed to do a certain act, and the mode of doing it, which had caused the injury, was certainly his own. Lord Ellenborough is reported as saying, ' It is the rule of respondeat supei'ior, what the bricklayer did, was by the defendant's direction.' It does not appear how the bricklayer was employed. If not by independent contract, the case stands very well on the relation of master and servant. A case at nisi prius, so imperfectly reported, can have but little weight. Another case at nisi prius was that of Matthews V. West London Waterworks, 3 Campb. 403, in which the defendants, con- tracting with pipe-layers to lay down pipes for the conveyance of water through the streets of the city, were held liable for the negligence of workmen employed by the pipe-layers. The case is. very briefly stated, and no reasons, given by Lord Ellenborough for his opinion, reported. It may stand on the ground that the defendants, having a public duty to discharge, as well as right given, could not delegate this trust, so as to exempt themselves from responsibility. This case is alluded to in Overton v. Freeman, 11 Com. B. 872, hereafter to be examined, where Maule, J., makes the following remarks concerning it : That is, but a nisi prius case ; the report is short and unsatisfactory ; and the particular circumstances are not detailed.' In Harris v. Baker, 4 M. & Selw. 27, and in Hall «. Smith, 2 Bing. 156, it was held that trustees or commissioners, intrusted with the conduct of public works, were not liable for injuries occasioned by the negligence of the workmen employed under their authority. These cases stand upon the ground that an action cannot be maintained against a man, acting § 455.] THIRD PERSONS AGAINST PRINCIPALS. 577 when done for his own use or benefit, he will be liable as an original trespasser or wrong-doer.^ [So, if the principal directs his servant to do some act, as to " go and get " a neighbor's gratuitously for the public, for the consequences of acts which he is authorized to do, and which on his part are done with due care and attention. They give no sanction whatever to the doctrine of Bush u. Steinman. In Randleson v. Murray, 8 Adolph. & Ellis, 109, a warehouseman in Liverpool employed a master porter to remove a barrel from his warehouse. Through the negligence of his men the tackle failed, and the barrel fell and injured the plaintiff. Held, that the warehouseman was liable. The case is put distinctly on the relation of master and servant. Lord Denman said, ' Had the jury been asked whether the porters, whose negligence occasioned the accident, were the servants of the defendant, there can be no doubt they would have found in the affirmative.' The injury occurred also in the direct use of the defendant's estate. In Burgess V. Gray, 1 Com. B. 578, the defendant, owning and occupying premises adjoin- ing the highway, employed one Palmer to make a drain from his land to the common sewer. In doing the work, the men employed by Palmer placed gravel on the highway, in consequence of which the plaintiff, in driving along the road, sustained a personal injury. There was evidence that, upon the defendant's attention being called to the gravel, he promised to remove it. The matter left to the jury was, whether the defendant wrongfully put, or caused to be put, the gravel on the highway. ' I think,' says Tindal, C. J., ' there was evidence to leave to the jury in support of that charge. If, indeed, this had been the simple case of a contract entered into between Gray and Palmer, that the latter should make the drain and remove the earth and rubbish, and there had been no personal superintendence or interference on the part of the former, I should have said it fell within the principle contended for by my brother Byles, and that the damage should be made good by the contractor, and not by the indi- vidual for whom the work was done.' After adverting to the evidence that the soil was placed upon the road with the defendant's consent, if not by his express direction, he says, ' I therefore think the case is taken out of the rule in Bush V. Steinman, which is supposed to be inconsistent with the later authorities.' Coltman, J., said, ' I think there was evidence enough to satisfy the jury that the entire control of the work had not been abandoned to Palmer.' Cresswell, J., said, ' No precise contract for the work was proved; nor was it shown that Palmer was employed to do the work personally, the mode of doing it being left to his judgment and discretion. I think there was abundant evidence to show ' Ante, §§ 244, 312, 313 ; Paley on Agency, by Lloyd, 305-307 ; Com. Dig. Trespass, C. 1 ; Bates «. Pilling, 6 B. & Cressw. 38 ; Story on Bailm. §§ 400, 402-404; Co. Litt. 207 a. Lord Coke, in 4 Inst. 317, says, that, by' "'the common law, he that receiveth a trespasser and agreeth to a trespass after it is done, is no trespasser, unless the trespass was done to his use or for his benefit, and then his agreement subsequent amounteth to a commandment ; for, in that case, Omnis ratihabitio retrotrahitur et mandate sequiparatur." AGENCY. 37 578 AGENCY. [CH. ZVII. horse, expecting that the servant will obtain the owner's per- mission, but the servant, misunderstanding the direction, takes him without leave, the master is liable for any injury to the horse, that the defendant at least sanctioned the placing of the nuisance on the road.' Erie, J., said, ' The work was done with the knowledge of the defendant,' and under his superintendence, and for his benefit.' This well-considered case, it is plain, so far from affirming the rule in Bush v. Steinman, is carefully and anxiously taken out of it by the counsel and by the court, with the strongest intimation by the latter, that, but for the difference, the action could not be maintained. The latest case in England, referred to- in the learned argument of the plaintiff's counsel, as affirming the doctrine of Bush v. Steinman, is Sadler V. Henlock, in the Queen's Bench (1856), 4 El. & Bl. 570. The defendant, with the consent of' the owner of the soil and the surveyor of the district, employed one Pearson, a laborer, but skilled in the construction of drains, to cleanse a drain running from the defendant's garden under the public road, and paid five shillings for the job. Held, that the defendant was liable for an injury occasioned to the plaintiff by reason of the negligent manner in which Pearson had left the soil of the road over the drain. The case is put by all the judges distinctly on the relation of master and servant. And Crorapton, J., said, ' The test here is, whether the defendant retained the power of controlling the work. No distinction can be drawn from the circumstance of the man being employed at so much a day or by the job. I think that here the relation -sfas that of master and servant, not of contractor and contraotee. It is only on the ground of a contractor not being a servant, that I can understand the authori- ties.' The case of Bush v. Steinman is not refeiTcd to by either of the justices ; but the distinction of servant and contractor runs through the whole case, — a distinction which is wholly inconsistent with the doctrine. of Bush v. Steinman. In Laugher v. Pointer, 5 B. & Cressw. 547, and 8 D. & R. 556 (1826), where the owner of a carriage hired of a stable-keeper a pair of horses to draw it for a day, and the owner of the horses provided a driver, through whose negligent driving an injury was done to the horse of a third person, it was held by Lord Tenterden, C. J., and Littledale, J., that the owner of the (jarriage was not liable for such injury; Bayley and Holroyd, Justices, dissenting. This case, is, in substance, the one put by Mr, Justice Heath, in illustration and support of the judgment in Bush v. Steinman. In the opinions of Lord Tenterden and of Littledale, J., the doctrines of Bush v. Steinman, in their application to personal property, are examined, and their soundness questioned. In Quar- man v. Burnett, 6 Mees. & Wels. 499 (1840), the same question arose in the Exchequer as in Laugher v. Pointer in the King's Bench, and the opinions of Lord Tenterden and Littledale, J., were affirmed, in a careful opinion pro- nounced by Baron Parke. In the course of it, he says, ' Upon the principle that qui fadt per .alium facit per se, the master is responsible for the acts of his servant ; and that person is undoubtedly liable who stood in the relation of mastej to the wrong-doer, — he who had selected him as his servant, from the knowledge of or belief in his skill and care, and who could remove him for misconduct, and whose orders he was bound to receive and obey ; and whether such servant has been appointed by the master directly, or intermediately § 455.] THIRD PERSONS AGAINST PRINCIPALS. 579 while used by the servant in his master's business.^ So, where the master directs his servant to cut timber on his land in a designated direction, and the servant, not knowing where the through the intervention of an agent authorized by him to appoint servants for him, can make no difference. But the liability, by virtue of the principle of relation of master and servant, must cease where the relation itself ceases to exist.' These cases, however, do not overrule Bush v. Steinman, as to the liability of owners of real estate. The case of Milligan v. Wedge, 12 Adolph. & Ellis, 737, and 4 P. & Dav. 714 (1840), is also in relation to the use of personal property, and rests upon the rule settled in Quarman v. Burnett. But in this case Lord Denman suggests a doubt whether the distinction as to the law in cases of fixed and movable property can be relied on. The case of Rapson v. Cubitt, 9 Mees. & Wels. 710 (1842), was this : The defendant, a builder, em- ployed by the committee of a club to make certain alterations at the club-house, employed a gas-fitter, by a sub-contract, to do that part of the work. In the course of doing it, by the negligence of the gas-fitter, the gas exploded and injured the plaintiff'. Held, that the defendant was not li^le. The reasons upon which this decision is based do not well consist with the rule in Bush v. Steinman. The case of Allen v. Hay ward, 7 Adolph. & Ellis, N. B,. 960 (1845), is still more di- rectly adverse. But we pass from these to cases directly in point. In the cases of Eeedie and Hobbit v. London and Northwestern Railway, 4 Exch. 244, 254 (1849,) the defendants, empowered by act of parliament to construct a railway, contracted under seal with certain persons to make a portion of the line, and, by the contract, reserved to themselves the power of dismissing any of the contractor's workmen for incompetence. The workmen, in constructing a bridge over a public highway, negligently caused the death of a person passing beneath, along the highway, by allowing a stone to fall upon him. In an action against the company, it was held, that they were not liable, the terms of the contract making no difference. In the judgment of the court, given by Baron Rolfe (now Lord Chancellor Cran worth), alluding to the supposed distinction as to real property, the court say, ' On full consideration, we have come to the conclusion th^t there is no such distinction, unless, perhaps, in cases where the act complained of is such as to amount to. a nuisance ; and, in fact, that, according to the modern decisions, Bush v. Steinman must be taken not to be law, or, at all events, that it cannot be supported on the ground on which the judgment of the court proceeded.' Without, sanctioning this doctrine, as it affects a public trust, it is very plain that it directly overrules the doctrine of Bush V. Steinman. The case of Knight v. Fox, 6 Exch. 721 (1850), is, if possible, a stronger case in the same direction — a decision which it is plain could not have been made if the doctrines of Bush v. Steinman were the law of Westminster Hall. There are three cases remaining. In Overton v. Freeman, 11 Com. B. 867 (1861), A. contracted to pave a district, and B. en- tered into a sub-contract with him to pave a particular street. A. supplied the ' Moir V. Hopkins, 16 111. 313. And see May v. Bliss, 22 Vt. 477 ; Fuller V. Voght, 13 lU. 283. 580 AGENCY. [CH. XTII. lines were, cut on the land of an adjoining owner, the master was held liable.!] So, although the relation bf master and servant should not exist in a particular case; yet a party may, by his stones, and his carts were used to carry them. B.'s men, in the course of the work, negligently left a heap of stones in the street. The plaintiff fell over them and broke his leg. It was held, that A. was not liable, even though the act complained of amounted to a public nuisance. And Maule, J., said, that the case of Bush v. Steinman 'has been considered as having laid down the law erroneously.' " In Peachey v. Eowlaud, 13 Com. B. 182 (1853), the defendants contracted with A. to fill in the earth over a drain which was being made for them across a portion of the highway from their house to the common sewer. A., after having filled it in, left the earth so heaped above tlje level of the highway as to consti- tute a public nuisance, whereby the plaintiff, in driving along the road, sustained an injury. The case had this other feature : A few days before the accident, and before the work was finished, one of the defendants had seen the earth so heaped over a portion of the drain ; but beyond this there was no evidence that either defendant had interfered with or exercised any control over the work. It was held, there was no evidence to go to thte jury of the defendants' liability. Bush V. Steinman appears not to have been cited by counsel or alluded to by the court. The still more recent case of Ellis v. Sheffield Gas Consumers' Co. 2 El. & Bl. 767 (1853), cited by the counsel for the plaintiff, only determmed that a party employing another to do an act unlawful in itself will be liable for an injury such act may occasion — very familiar and well settled law. Bush u. Steinman is no longer law in England. If ever a case can be said to have been overruled, indirectly and directly, by reasoning and by authority, this has been. No one can have examined the case without feeling the difficulty of that clear- headed Judge, Chief-Justice Eyre, of knowing on what ground its decision was put. It could not stand on the relation of master and servant. That relation did not exist. It could not stand upon the ground of the defendant having created or suffered a nuisance upon his own land to the injury of his neighbor's property. The lime was on the highway. There is no rule to include it but the indefinitely broad and loose one that a person shall be answerable for any injury which arises in carrying into execution that which he has employed another to do — a rule which ought to have been and was expressly repudiated. The case of Leslie v. Pounds, 4 Taunt. 649, not cited in the argument, has some resem- blance to the cases before referred to. This was an action against the landlord of a house leased, who, under contract with the tenant, who was bound to re- pair, employed workmen to repair the house, and superintended the work. Be- ing remonstrated with by the commissioners of pavements as to the dangerous state of the cellar, he promised to take care of it, and had put up some boards temporarily as a protection to the public. They proved insufficient, and the plain- tiff falling through, the landlord was held liable. The case was decided on the ground that the landlord was making the repairs, and that the workmen were ' Luttrell V. Hazen, 8 Sneed (Tenn.), 20. § 455.] THIRD PERSONS AGAINST PRINCIPALS. 581 own conductj make himself responsible for the neglect or im- proper act of the servant. Thus, although the hirer of job^iorses and servants will not ordinarily be liable for the negligent acts of employed by him, and were his servants. The suggestion is made that, whatever may be the result of the later cases in England, the doctrine of Bush v. Stein- man has been affirmed in this country. The cases in this court we have already examined. The case of Bailey v. Mayor, &c., of New York, 3 Hill, 631", and 2 Denio, 433, was an action brought against the corporation of New York, for the negligent and unskilful construction of the dam for the waterworks at Croton River, by the destruction of which, injury was occasioned to the mills of the plaintiff. The city was held responsible. This case rests well upon the ground that where persons are invested by law with authority to execute a work involv- ing ordinarily the exercise of the right of e'minent domain, and always affecting rights of third persons, they are to be liable for the faithful execution of the . power, and cannot escape responsibility by delegating to others the power with which they have been intrusted. Blake v. Ferris, 1 Seld. 48, seems to conflict with Bailey v. Mayor, &c. , of New York, Certain persons were permitted to con- struct a public sewer at their own expense ; they employed another person to do it at an agreed price for the whole work ; the plaintiffs received an injury from the negligent manner in which the sewer was left at night. It was held, that the persons who were authorized to make the sewer were not responsible for the negligence of the servants of the contractor. This case utterly rejects the rule of Bush v. Steinman. The case of Stevens v. Armstrong, 2 Seld. 435, was this : A. bought a heavy article of B., and sent a porter to get it; by per- mission of A., the porter used his tackle and fall; through negligence, the porter suffered the article to drop, by which C. was injured. It was held, that the porter acted as the servant of B., and that A. was not answerable. Yet this was an injury done on A.'s estate, by his permission, and in the use of his property. This case also rejects the rule of Bush v. Steinman. In Lesher v. Wabash Navigation Co. 14 Dl. 85, where a corporation was authorized to take materials to construct public works, and contracted with others to do the work and find the materials, and the contractors nevertheless took the materials under the authority granted to the corporation, the corporation were held liable there- for. If the Court could find that the materials were taken under the authority of the corporation, the ca^e will stand perfectly well under the rule of Lowell v. Boston & Lowell Railroad, and Bailey v. Mayor, &c. of New York. The cases of Willard v. Newbury, 22 Vt. 468, and Batty u. Duxbury, 24 Vt. 156, rest on the same principles. In the case of Wiswall ». Brinson, 10 Ired. 564, the court held an owner of real estate responsible for the negligence of the servants of a carpenter with whom the defendant had contracted, for a stipulated price, to remove a barn on to his premises. This case (in which, however, there was a divided judgment, Ruffin, C. J., dissenting, in a very able opinion) certainly sustains the doctrine of Bush v. Steinman. De Forrest v. Wright, 2 Mich. 368, not cited, is in direct conflict with the rule of Bush v. Steinman. A pub- lic, licensed drayman was employed to haul a quantity of salt from a ware- house, and deliver it at the store of the employer, at so much a barrel. While in the act of delivering it, one of the barrels, through the carelessness of the 582 AGENCY. [CH. XTII. the servants, since the relation of master and servant is now held not to exist between them ; yet the hirer may become so respon- sible by his own conduct, by taking the actual management of the horses, or ordering the servant to drive in a particular manner, which occasions the damage complained of, or by ordering his absence at the particular moment when the damage occurs.^ § 456. Bat, although the principal is thus liable for the torts drayman, rolled against and injured a person on the sidewalk. It was held, that the employer was not liable for the injury, the drayman exercising a dis- tinct and independent employment, and not being under the immediate control and direction or supervision of the employer. This is a well-considered case, rejecting the rule of Bush v. Steinillan, and sanctioning the result to which we have been brought in the case at bar. We have thus, at the risk of.tedious- ness, examined the case at bar as one of authority and precedent. The clear weight and preponderance of the authorities at common law is against the rule given to the jury. The rule of the civil law seems to have limited the liability to him who stood in the relation o{ paterfamilias to the person doing the injury. Inst. lib. 4, tit. 5 ; §§ 1, 2 ; 1 Domat, 2, tit. 8, sec. 1 ; Dig. lib. 9, tit. 2, § 1. Viewing this as a question, not of authority, but to be determined by the application to these facts of settled principles of law, upon what prin- ciple can the defendant be held responsible for this injury ? He did not himself do the act which caused the injury to the plaintiff. It was not done by one acting by his command or request. It was not done by one whom he had the right to command, over whose conduct he had the efficient control, whose operations he might direct, whose negligence he might restrain. It was not an act done for the benefit of the defendant, and from the doing of which an implied obligation for compensation would arise. It was not an act done in the occupation of land by the defendant, or upon land to which, upon t!ie facts, he had any title. To say that a man shall be liable for injuries resulting from acts done near to his land, is to establish a rule as uncertain and indefinite as it is manifestly unjust. It is to make him liable for that which he cannot forbid, prevent, or remove. The case cannot stand on the relation of master and servant. It cannot stand upon the ground of nuisance erected by the owner of land, or by his license, to the injury of another. It cannot stand. upon the ground of an act done in the execution of a work under the public authority, as the construction of a railroad or canal, and from the responsibility for the careful and just execution of which public policy will not permit the corporation to escape by delegating their power to others. It can only stand, where Bush V. Steinman, when carefully examined, stands, upon the general proposition that a person shall be answerable for any injury which arises in carrying into execution that which he has employed another to do, — to adopt which would be to ignore all limitations of legal responsibility." See, farther, Pawlet v. Rut- land Railroad, 28 Vt. 297. ' Per Baron Parke, in delivei-ing the opinion of the Court, in Quarman v. Burnett, 6 Mees. & Wels. 499, 607. See Laugher v. Pointer, 5 B. & Cressw. 647 ; Story on Bailm. § 403 a. §§ 455, 456.] THIRD PERSONS AGAINST PRINCIPALS. 583 and negligences of his agent ; yet we are to understand the doc- trine "with its just limitations, that the tort or negligence occurs in the course of the agency. For the principal is not liable for the torts or negligences of his agent in any matters beyond the scope of the agency, unless he has expressly authorized them to be done, or he has subsequently adopted them for his own use or benefit.^ Hence it is, that the principal is never liable for the unauthorized, the wilful, or the malicious act or trespass of his agent.^ Thus, if a servant, while driving the carriage of his master, should wilfully ot maliciously run against or upset another carriage, or run down and injure a person in the road, or should jump from his box, and beat a person, — in all these cases, he, and not his master, would be liable for this wanton wrong and mischief.^ [So, if a man's carman, after finishing his ' Ante, §§ 319, 454, 455, and note ; Paley on Agency, by Lloyd, 305-307 ; 4 Inst. 317 ; Mr. Holt's remarks, ante, 454, note ; Croft u. Alison, 4 B. & Aid. 590 ; Story on Bailm. §§ 400, 402, 403 ; Bac. Abridg. Master and Servant, L. ' Harris v. Nicholas, 5 Mundford, 483 ; Brown v. Purriance, 2 Harris & Gill, 316 ; Puryear v. Thompson, 5 Humphreys, 397 ; Kerns v. Piper, 4 Watts, 222; Richmond S. Co. v. Vanderbilt, 1 Hill, 480; Weed v. Panama Railroad, 3 Smith (N. Y.), 367. ' McManus v. Crickett, 1 East, 106 ; Smith on Merc. Law, 69, 70 (2d ed.) ; Id. B. 1, ch. 5, § 3, pp. 127-130 (3d ed. 1843) ; Croft v. Alison, 4 B. & Aid. 590 ; Bacon's Abridg. Master and Servant, L. The judgment of Lord Ken- yon, in McManus v. Crickett, 1 East, 106, may be considered as the leading judgment on this subject, and states the distinctions -with fulness and accu- racy. I have, therefore, cited it at large. "This (said his lordship) is an action of trespass, in which the declaration charges, that the defendant with force and arms drove a certain chariot against a chaise, in which the plaintiff was driving in the king's highway, by which the plaintiff was thrown from his chaise and greatly hurt. At the trial, it appeared in evidence that one Brown, a ser- vant of the defendant, wilfiilly drove the chariot against the plaintiff's chaise, but that the defendant was not himself present, nor did he in any manner direct or assent to the act of the servant ; and the question is, if, for this wilful and designed act of the servant, an action of trespass lies against the defendant, his master ? As this is a question of very general extent, and as cases were cited at the bar, where verdicts had been obtained against masters for the misconduct of their servants under similar circumstances, we were desirous of looking into the authorities on the subject, before we gave our, opinion; and after an examination of aU, that we could find, as to this point, we think, that this action cannot be maintained. It is a question of very general concern, and has been often canvassed ; but I hope at last it will be at rest. It is said in Bro. Abridg. tit. Trespass, pi. 435 : 'If my servant, contrary to my will, chase my beasts into the soil of another, I shall not be punished.' And in 2 Roll. 684 AGENCY. [CH. XVII. work for the day, instead of putting up his horse and cart, as it was his duty to do, drives a fellow-servant to his home, without his master's leave, and in returning runs over a traveller, the Abridg. 553 : ' If my servant, without my notice, put my beasts into another's land, my servant is the trespasser, and not I ; because, by the voluntary putting of the beasts there, without my assent, he gains a special property for the time, and so to this purpose they are his beasts.' I have looked into the correspondent part in Vin. Abridg., and as he has not produced any case con- trary to this, I am satisfied with the authority of it. And in Noy's Maxims, ch. 44 : ' If I command my servant to distrain, and he ride on the distress, he shall be punished, not I. And it is laid down by Holt, C. J., in Middleton «. Fowler, Salk. 282, as a general position, ' that no master is chargeable with the acts of his servant, but when he acts in the execution of the authority given him.' N'ow, when a servant quits sight of the object for which he is employed, and without having in view his master's orders, pursues that which his own malice suggests, he no longer acts in pursuance of the authority given him, and, according to the doctrine of Lord Holt, his master will not be answerable for such act. Such, upon the evidence, was the present case ; and the technical reason, in 2 Roll. Abridg. with respect to the sheep, applies here ; and it maybe said, that the servant, by wilfully driving the chariot against the plaintiff's chaise, without his master's assent, gained a special property for the time, and so to that purpose the chariot was the servant's. This doctrine does not at all militate with the cases, in which a master has been holden liable for the mischief arising from the negligence or unskilfulness of his servant, who had no purpose but the exe- cution of his master's orders. But the form of those actions proves, that this action of trespass cannot be maintained ; for, if it can be supported, it must be upon the ground, that, in trespass, all are principals. But the form of those actions shows, that, where the servant is in point of law a trespasser, the master is not chargeable as such, though liable to make a compensation for the damage consequential from his employing of an unskilful or negligent servant. The act of the master is the employment of the servant ; but from that no immediate prejudice arises to those who may suffer from some subsequent act of the servant. If this were otherwise, the plaintiffs, in the cases mentioned in 1 Ld. Rayra. 739 (one, where the servants of 'a carman, through negligence, ran over a boy in the streets and maimed him; and the other, where the servants of A., with his cart, ran against the cart of B., and overturned it, by which a pipe of wine was spilled), must have been nonsuited from their mistaking the proper form of action, in bringing an action upon the case, instead of an action of trespass; for there is no doubt of the servants in those cases being liable as trespassers ; even though they intended no mischief; for which, if it were necessary, Weaver V. Ward, in Hobart, 134, and Dickenson u. Watson, in Sir Thomas Jones, 205, are authprities. But it, must not be infeiTed from this, that in all cases, where an action is brought against the servant for improperly conducting his master's carriage, by which mischief happens to another, the action must be trespass. Michael v. AUestree, in 2 Levinz, 172, where an action on the case was brought against ?, man and his servant, for breaking a pair of horses in Lincoln's Inn Fields, 'where, being unmanageable, they ran away with the carriage and hurt § 456.] THIRD PEESONS AGAINST PRINCIPALS. 585 master is not responsible.^ So where a servant kindled a fire on his master's land, and by his direction, but afterwards, during his master's absence, and without his orders, carried some fire to tlie plaintiff's wife, is an instance to show, that trespass on the case may be the proper form of action. And, upon a distinction between those cases, where the mischief immediately proceeds from something in which the defendant is himself active, and where it may arise from the neglect or other misconduct of the party, but not immediately, and which, perhaps, may amount only to a non- feasance, we held, in Ogle v. Barnes, 8 T. R. 188, that the plaintiff was entitled to recover. The case of Savignac and Roome, 6 T. R. 126, which was much pressed, as supporting this action, came before the court on a motion in arrest of judgment; and the only question decided by the court was, that the plaintiff could not have judgment, as it appeared that he had brought an action on the case for that which in law was a trespass ; for the declaration there stated, that the defendant, by his servant, wilfully drove his coach against the plaintiff's chaise. Day v. Edwards, 5 T. R. 648, was also mentioned, which was an action on the case, in which the declaration charged the defendant personally with furiously and negligently driving his cart ; that, by, and through the furious, negligent, and improper conduct of the defendant, the said cart was driven and struck against the plaintiff's carriage; and, on demurrer, the court were of opinion, that the fact complained of was a trespass. And, in the last case that was mentioned, of Brucker v. Fromont, 6 T. R. 669, the only point agitated was, whether evidence of the defendant's servant having negligently managed a cart supported the declaration, which imputed that negligence to the defend- ant; and the court with reluctance held, that it did, on the authority of a precedent in Lord Raymond's Reports, 264, of Tuberville and Stamp. In none of these cases was the point now in question decided ; and those determinations do not contradict the opinion we now entertain, which is, that the plaintiff cannot recover, and that a nonsuit must be entered." ' [Mitchell V. Crassweller, 18 Com. B. 287 ; 16 Eng. Law and Eq. 448, and see Bennett's note. The true principle was well and clearly laid down in the late case of Church v. Mansfield, 20 Conn. 284 (1850). In that case, it was said, " In order to render a master liable for a trespass committed by his ser- vant, it is necessary to show, that the acts constituting such trespass were done while the servant was acting under the authority of the master. If the master was ignorant of such acts, no presumption of his having authorized them will arise from their having been done for his benefit, and from his silence regarding them. Therefore where A. employed B. to make coal on A.'s land, and trans- port it with A.'s teams and carts, to A.'s furnace, for his benefit ; and C. brought trespass against A. for B.'s unnecessarily making roads on C.'s land, and pass- ing thereon, with teams and carts, to A.'s furnace ; on the trial, there was no evidence that A. authorized the acts complained of, or knew that B. had com- mitted, or intended to commit, them, unless this might be inferred from the facts above stated ; and the court instructed the jury, that if B. had done these acts, under these circumstances, the presumption was, that they were done by the authority and under the direction of A. ; it was held, that this was a njis- direction, for which a new trial should be granted."] [* A master hais been 586 AGENCY. [CH. XVII.< another field, to kindle a fire there, and by_ so doing burnt the ' plaintiff's grass, the master was held not liable.^] So, the master of a ship is not liable for a wilful act of injury done to another ship by his crew, although he would be for such an injury, done by their negligence.^ [And where the drivers of an omnibus, contrary to the orders of the owners, repeatedly surrounded the omnibus of another line, and thus prevented passengers from held liable where the servant, after setting his master down, drove round to deliver a parcel of his own, and did not drive directly where he was ordered to go. Heath v. Wilson, 2 M. &B,. 181. Where servants, in distinct disobedience to orders, went home and left a horse and cart standing in the street. Whatman V. Pearson, 16 W. R. 649 ; L. R. 3 C. P. 422. Where damage was caused by the negligent driving of the master's cart in the city, though the servant ought not, in carrying out his master's orders, to have been in the city at all. Joel V. Morrison, 6 C. & P. 601. On the other hand, a master has been held not liable where a servant, ordered to do an act which was legal, did a totally different act which was illegal. Lynes v. Martin, 8 Adolph. & Ellis, 612. Where a servant, sent on an errand, met a friend, who allowed him to ride his horse, and an injury happened in consequence. Goodman v. Kennell, 3 C. & P. 167. " A curious consequence of the rule that the master is not responsible for acts beyond the scope of his servant's employment, is, that a master is respon- sible for a wrongful act of his servant which arises from a mistake of facts on the servant's part, but not for a wrongful act which arises from a servant's mistake of law. Thus, where the servant of a railway company arrested the plaintiff under circumstances which, if his view of the facts had been correct, would have justified the. arrest, the company was held liable. Goff v. Great Northern Railway, 30 L. J. Q. B. 148. But where the servant of a company did a similar act under a mistaken view of the law, the company was held not liable. Poulton v. London & Southwestern R. Co. L. R. 2 Q. B: 634. It seems now settled that no sensible distinction can be drawn between the case of fraud and any other wrong. Barwick v. English Joint Stock Company, 16 W. R. Ex. Ch. 877." Solicitor's Journal and Reporter, 1868, p. 981.] ' [Wilson V. Peverly, 2 JT. H. 648. But if the injury happens as a conse- quence resulting from acts done by the master's commands, he cannot shield himself from responsibility by showing that his instructions were not strictly pursued by his servant in doing the act. Thus, in Armstrong v. Cooley, 6 Gil- man, 509 (1849), where the plaintiff's grain and hay were destroyed, by reason of a fire on the prairie, set by a servant of the defendant by his directions, he was not permitted to avoid responsibility, by showing that he directed the fire to be set only when the wind was in a particular direction, but that it was in fact set when the wind was in a different direction. See Simons v. Monier, 29 Barb. 419.] ' Bowcher v. Noidstrom, 1 Taunt. 668. See, as to how far ship-owners are liable in cases of pilots, Lucy v. Ingram, 6 Mees. & Wels. 302 ; The Maria, 1 Rob. New. 95 ; Martin v. Temperley, 4 Q. B. 298 ; The (Eng.) Jurist, Feb. 26, 1843, No. 320, p. 160 ; The Agricola, id. p. 167 ; Post, § 666 a, and note. ' §§ 456,456 a.] third persons against principals. 587 entering, their principals were held not liable, although in one sense the acts were done for their benefit.^ So, where a person employed by a railway company wrongfully arrests a traveller for the non-payment of his passage-money, but without any instruc- tions from the company so to do, and without any authority in the company to order such arrest, or any ratification by them,^ the company are not liable.^ But where an omnibus conductor . dragged a drunken passenger out of the omnibus with unnecessary violence, and threw him down in the middle of the street, and another vehicle passing at the same moment injured him, without any fault in the driver of the latter vehicle, the proprietor of the omnibus was held liable.*] § 456 a. From what has been already stated, the master of a ship, and the owner also, is liable for any injury done by the negligence of the crew employed in the ship.^ The same doc- trine will apply to the case of a pilot employed by the master or owner, by whose negligence any injury happens to a third person or his property ; as, for example, by a collision with another ship, occasioned by his negligence. And it will make no difference in the case, that the pilot, if any is employed, is required to be a licensed pilot ; provided the master is at liberty to take a pilot or not at his pleasure ; for, in such a case, the master acts volun- tarily, although he is necessarily required to select from a par- ticular class. ^ On the other hand, if it is compulsive upon the ^ Green v. Macnamara, 1 Law Times (n. s.), 9; 8 J. Scott (sr. s.), 880. This case is not in the English edition. ^ Eastern Counties Railway Co. v. Brown, 2 Eng. Law and Eq. 406. ' Roe u.The Birkenhead, &c. Railway Co. 7 Eng. Law andEq. 546 ; 7 Exch. 36. * [Seymour v. Greenwood, Court of Exchequer, 24 Bost. Law Rep. 123. Pollock, C. B., said, "The state of the law upon this subject has been much expanded since the case of Scott v. Shepherd, 2 Bl. 892, and M'Manus v. Crickett, 1 East, 106. Any one who reads those cases cannot fail to see that the principle was not then so considered as to work out all the legal consid- erations attending it."] * Ante, §§ 316-317, 463. [* A consignee, who has made advances on account of a shipment of iron, may hold the owner of the vessel liable in admiralty for a loss of the iron, caused by the act of the master in unloading on an insufficient wharf. Vose v. Allen, 3 Blatchf. C. C. 289.] » The Neptune 2d, 1 Dods. Adm. 467 ; The Maria, 1 Rob. New Adm. 95 ; Att'y-Gen'l v. Cafe, 3 Price, 302 ; Abbott on Shipp. Pt. 2. ch. 7, §§ 8, 9, and cases there cited (5th ed. by Serg. Shee) ; Id. Addenda, p. 599 ; Lucey v. Ingram, 6 Mees. & Wels. 302. 588 AGENCY. [CH. XTII. master to take a pilot, and, a fortiori, if he is bound to do so under a penalty, then, and in such case, neither he nor the owner will be liable for injuries occasioned by the negligence of the pilot ; '^ for, in such a case, the pilot cannot be deemed prop- erly the servant of the master or the owner, but is forced upon them ; and the maxim, " Qui facit per alium facit per se," does not apply .^ In short, the rule of the common law seems to be, that, wherever a man is absolutely compellable by law to employ a particular individual in a given matter, the law, which compels him to employ that individual, takes away his responsibility arising from any act of that individual.^ But, if he is only com- pellable to select from a class of privileged persons, there he will be responsible for the acts of the persons whom he selects and employs. Therefore it has been held, that, where a barge-owner in London employed persons as watermen to navigate on the Thames, none being allowed by law to act as such, except freemen of the city, or apprentices of freemen or of their widows ; there, if he selects or employs .any watermen, they are to be deemed his servants, and he is responsible for their negligence, although he must select from the class, if he employs any in the business ; and, even if he is not at liberty to employ his own servants to navigate the river and carry his own goods, unless they are free- men, or apprentices of freemen or of their widows, belonging to their class.* The distinction between this case and the case of the pilot is certainly a very nice one ; but it turns apparently upon this ground, that, in the case of the pilot, the master is bound to take one, and, in the other case, the barge-owner is only restricted as to the class of persons whom he shall employ, not being compellable to employ any. Unless the distinction were allowed to prevail, the owner or master of a British ship would ' Abbott on Shipp. Ft. 2, ch. 7, § 8 (6th ed. by Shee, 1840) ; Atfy-Geri'l u. Case, S Price, 302 ; Carruthers v. Sidebottom, 4 M. & Selw. 77 ; The Maria, 1 Kob. Xew Adm. 96 ; Luoey v. Ingram, 6 Mees. & Wels. 302 ; The Agri- cola, The (Eng.) Jurist, Feb. 25, 1843, No. 320, p. 157 ; Smith «. Condry, 1 How. Sup. Ct. 28 ; s. c. 17 Pet. 20 ; The Protector, 1 W. Rob. New. Adm. 45 ; Bennet u. Moira, 7 Taunt. 258 ; Mcintosh v. Slade, 6 B. & Cressw. 667 ; The Ship Duke of Sussex, 3 W. Rob. New Adm. 270, 272. ^ Ibid. 3 lyj * Martin u. Temperley, 4 Q. B. 298 ; The (Eng.) Jurist, Feb. 26, 1842, No. 320, p. 150: But see The Agricola, ib. p. 157, 158 ; Milligan v. Wedge, 12 Adolph. & Ellis, 737. § 456 a.] THIRD PERSONS AGAINST PRINCIPALS. 589 not be responsible for the negligence of the crew, since they are compellable to select the crew from a particular class ; that is, three fourths at least of the crew must be British seamen.^ ' Ibid. It is observable that the cases above cited generally turn upon the distinction, whether the master or employer is absolutely compellable or not to take a pilot, or to employ a particular person (not merely one of a class, from which he may select) or not. The British Pilot Acts generally, but not univer- sally, make it compulsive, under a penalty, upon the master of a ship to take a pilot, and in such cases exempt the master and owner from responsibility for the negligence of the pilot. But, in some ciises, the master has an option to employ a pilot or not ; and, in case he elects not to employ one, he is by law required to pay the pilotage fee, or a part thereof, to any pilot who oifers himself, and whose services are declined. In these latter cases, the question has arisen, whether the master and owners are responsible for the negligence of the pilot, if one is taken by the election of the master. The present learned Judge of the high court of admiralty (Dr. Lushington) has held, that there is no differ- ence in principle, whether the master or owner is compellable, under a penalty, to take a pilot, and whefher he has an election to take or not, but if he declines to take one, then he is to pay pilotage ; and he deems the pilotage, so paid, as in the nature o^a penalty. But there seems great reason to doubt the correctness of this doctrine. In the first place, the penalty is properly and strictly designed, as a punishment for an offence, in neglecting or refusing to comply with .a posi- tive duty imposed by law ; and the penalty is in no just sense to be treated as a commutation for liberty to commit the offence, and to omit the duty. In the other case no such positive duty exists, and it is left to the choice of the master to take a pilot or not, according to his own discretion. The taking of the pilot is, then, a voluntary act, and not a compulsive act. In the next place, the com- pensation to be paid to the pilot, or the pilotage allowed him, in case of the master's declining to employ him, is not a penalty, or in the nature of a penalty, to compel the party to take a pilot, but is more properly to be treated as a re- muneration of the pilot for keeping himself at all times ready to perform the duty of a pilot, when required, and to encourage him to encounter the hazards and perils incident to such a service, and to secure adequate skill and ability for the safety and protection of vessels navigating the coasts and harbors of the country. It is, therefore, a compensation, pro opera et Za6ore, founded in a sound public policy, to secure protection, and prompt assistance, and ready skill, to aU per- sons who may require them in navigation, rather than a punishment for a dere- liction of duty. See the ship Duke of Sussex, 3 W. Robins. New. Adm. 270, 272. In America, certainly, no such doctrine has ever been inculcated ; and the own- ers and masters of ships are held liable for the negligence of pilots, in cases where they are not compellable to take them ; although, if not taken, half pilot- age, or some other proportion of pilotage, is required to be paid to the pilot who offers. Williamson v. Price, 16 Martin, 399 ; Yates v. Brown, 8 Pick. 23. See also the opinion of Sir John NichoU in The Girolamo, 8 Hagg. Adm. 169, 172. Indeed, in the case of Williamson v. Price, 16 Martin, 399, the Supreme Court of Louisiana went much further, and seems to have held, that, even if the taking of a pilot on board was a compulsive duty, and not optional, still the 590 AGENCY. [CH. XVII, § 457. We have already had occasion, also, to notice another exception, or, more properly speaking, another limitation of the doctrine of the responsibility of principals for the malfeasances, and negligences, and torts, of their agents and servants, in the course of their employments, and that is in the case of public agents.^ The latter are responsible for their own personal mal- feasances and negligences only, and not for the malfeasances and negligences of the persons who are employed under them, if they are persons of reasonable skill and discretion, and the agents themselves have not directed or co-operated in the wfong.^ This doctrine is founded partly upon considerations of public policy, and partly results from the fact, that these subordinates are often appointed by another independent authority, and are not control- lable by, or immediately responsible to, the public agents.^ § 458. The Roman law, in like manner, in many cases, made the principal liable for the torts and negligences of his agents and servants.* It has been supposed, that the Roman law never was as extensive in its reach as our law ; in other words, that it never, did create a general liability of principals for the wrongs and negligences of their agents, but limited it to particular classes of cases ; and that the liability of principals, so, far as it is rec- ognized in that law, is mainly dependent upon the pr^tor's edict, and was not worked out of the original materials of the Roman jurisprudence. Whether this supposition be correct or not, it is owners were liable for the negligence of the pilot actually employed. See also Bussy V. Donaldson, 4 Dall. 206, which seems to have adopted the same doc- trine. And this seems also to have been the opinion entertained by Lord Stowell, upon general principles ; The Neptune 2d, 1 Dodson, Adm. 467 ; and by Sir John NichoU in The Girolamo, 8 Hagg. 169. But see the able note of Mr. Curtis, on this subject, in his work on Merchant Seamen, pp. 195, 196, note. Even under the British Pilot Acts, in order to exempt the owner from responsibility, the collision, or other act, occasioning the damage, should be exclusively caused by the negligence, unskilfulness, or misconduct of the pilot alone ; for, if it be in part caused by the unskilfulness, misconduct, or negli- gence of the master or mariners, the owner will stiU remain liable therefor. The Protector, 1 Rob. Adm. 45 ; The Diana, 1 W. Rob. New Adm. 131 ; Smith V. Cowdry, 17 Peters, 20 ; S. C. 1 Howard's Sup. Ct. 28. > Ante, §§ 320-322. " Ante, §§ 320-322, 455. See Lord Abinger's remarks in Winterbottom v. Wright, 10 Mees. & Wels. 109, 114, 116. ' Ante, §§ 321, 322, and notes. * Ante, § 318. §§457,458.] THIRD PERSONS AGAINST PRINCIPALS. 591 clear, that, in certain classes of cases, the prsetor, by his edict, either introduced a new and more rigid liability, or he gave to that, which previously existed, an additional force, and in some respects, a more onerous obligation. Thus, masters and employ- ers of ships, innkeepers, and stable-keepers, were made respon- sible for the safety and due delivery of the goods committed to their charge ; and, of course, if the loss or damage were occa- sioned by the negligences or wrongs of their servants, and not by themselves, their responsibility was not varied.^ " Ait praetor ; > Ante, § 318 ; Story on Bailm. §§ 464, 565 ; Dig. Lib. 4, tit. 9, 1. 1, § 3 ; Heinecc. Pand. Lib. 4, tit. 8, §§ 546-648; Pothier, Pand. Lib. 4, tit. 9, n. 1, 2, 8; 1 Domat, B. 1, tit. 16, § 1, arts. 3, 5; Id. § 2, art. 2; Id. § 3, art. 1. Lord Stair, in his Institutes (B. 1, tit. IS, § 3), seems manifestly to have con- sidered this edict, as introducing, for the first time, the liability of principals for the acts and defaults of their agents, and of making that liability more rigid, in many cases, upon the ground of public policy. His language is : "In the civil law there is a depositation of a special nature, introduced by the edict ; nautse, caupones, stabularii, ' quod cujusque salvum fore receperint, nisi restituent, in eos judicium dabo.' By this edict, positive law, for utility's sake, hath ap- pointed, that the custody of the goods of passengers in ships, or strangers in inns, or in stables, shall be far extended beyond the nature of depositation, which obliges only for fraud, or supine negligence, them who have expressly contracted for their own fact. But this edict, for public utility's sake, extends it ; first, to the restitution of the goods of passengers and voyagers, and repara- tion of any loss or injury done by the mariners, or servants of the inn or stable. Whereas, by the common law, before that edict, in this and such other cases, there was no such obligement ; much less are persons now obliged for their hired servant's fact or fault, except facts wherein they are specially intrusted by them. But, because the theft and loss of goods is very ordinary in ships, inns, and stables, therefore this edict was introduced for the security of travel- lers. Secondly, the edict extends this obligement, even to the damage sustained by (the act of) other passengers or strangers in the ship, inn, or stable, for the which, the master of the ship, innkeeper, or keeper of the stable, could be no ways obliged but by virtue of this edict. Thirdly, they were made liable for the loss or theft of such things absolutely from which they were free by no diligence, but were not liable for accident or force ; that is, sea-hazard must always be excepted." See also 1 Bell, Comm. §§ 398-402, 600, 605 (4th ed.) ; Id. pp. 463-476 (5th ed.). See Story on Bailm. §§ 400-402, 458, 464-466. There are certainly passages in the Digest, which make principals responsible for the faults and negligences of their agents and servants, beyond those specially pointed out.in the Prsetor's edict. This responsibility seems, however, to have been limited to cases where the principal was guilty of some negligence in employing negligent and improper agents and servants. Thus, in the Digest, the opinion of Pomponius is approved : "Videamus, an et servorum culpam, et quoscunque induxerit, prsestare conductor debeat ? Et quatenus prsestat ? Utrum, ut servos noxse dedat, an vero suo nomine teneatur? Et adversus eos 592 AGENCY. [CH. XVII. nautae, caupones, stabularii, quod cujusque salvum fore receperint, nisi restituent, in eos judicium dabo." ^ The reason assigned is, tliat the rule is well founded in public policy and convenience, and is the only means to prevent losses by fraud or connivance.^ ^'' A fortiori, \i the act was done with the consent of the principal, he was liable. " Quamquam, si ipse alicui e nautis committi jussit, sine dubio debeat obligari." ^ The liability of the principal for the acts and negligences of the agents, as well as for his own, is fully proclaimed in the comments of the Roman law. Thus, for example, it is said, as to the owners or employers of ships ; " Bt sunt quidam in navibus, qui custodise gratiS, navibus prapdnuntur, vav(pila.y.eg, id est, navium custodes et dietarii. Si quis igitur ex his receperit, puto in exercitorem dandam actionem ; quia is, qui eos hujusmodi oflQ.cio praeponit, committi eis permittit." * Th^ same doctrine is also applied to innkeepers. " Oaupo prsestat factum eorum, qui in e& caupon§,, ejus cauponse exercendse causa, ibi sunt. Item eorum, qui habitandi causS, ibi sunt. Viatorum autem factum non praestat." ^ The same doctrine is also applied to stable-keepers. " Caupones autem et stabularios seque eos accipie- mus, qui cauponam vel stabulum exercent, institoresve eorum. ^ quos induxerit, utrum praestabit tantum actiohes, an quasi ob propriam culpam tenebitur? Mihi ita placet, ut culpam etiam eorum, quos induxit, prasstet suo nomine, etsi nihil convenit, si tamen culpam in inducendis admittit, quod tales habuerit, vel suos, vel hospites." Digest, Lib. 19, tit. 2, 1. 11 ; Pothier, Pand. Lib. 19, tit. 2, u. 30, 31. See also Dig. Lib. 9, tit. 2, 1. 29, §§ 9, 11 ; Pothier, Pand. Lib. 19, tit. 2, n. 81. See Story on Bailm. § 401 ; 1 Domat, B. 1, tit. 4, § 2, arts. 5, 6 ; Id. B. 2, tit. 8, § 1, arts. 1-9 ; Id. § 4, art. 8. Again: Qui " columnatn transportandam conduxit, si ea dum toUitur, aut portatur, aut reponitur, fracta sit, ita id periculum praestat, si qua ipsius, eorumque, quorum opera uteretur, culpa acciderit. Culpa autem abest, si omnia facta sunt quse diligentissimus quisque observaturus fuisset." Dig. Lib. 19, tit. 2, 1. 25, § 7 ; Pothier, Pand. Lib. 19, tit. 2, n. 32. ' Dig. Lib. 4, tit. 9, 1. 1. Pothier, Pand. Lib. 4, tit. 9, n. 1, 2 ; 1 Domat, B. 1, tit. 16, § 1, arts. 2, 4, 6 ; Id. § 2, art. 2 ; Id. § 3, arts. 1-3 ; Heinecc. ad Pand. Lib. 4, tit. 8, §§ 646-548, 561 ; Ante, § 318. = Ante, § 318, and note ; 1 Domat, B. 1, tit. 16, § 1, art. 7. ' Dig. Lib. 4, tit. 9, 1. 1, § 2 ; Pothier, Pand. Lib. 4, tit. 9, n. 2 ; Ante, § 318, note (2) ; 1 Domat, B. 1, tit. 16, § 1, art. 5. ■• Dig. Lib. 4, tit. 9, 1. 1, § 3; Pothier, Pand. Lib. 4, tit. 9, n. 2; 1 Domat, B. 1, tit. 16, § 2, arts. 1-4. ' Dig. Lib. 4, tit. 5, 1. 1, § 6 ; Pothier, Pand. Lib. 47, tit. 5, n. 3 ; 1 Domat, B. 1, tit. 16, § 1, arts. 3, 6. « Dig. Lib. 4, tit. 9, 1. 1, § 6 ; Pothier, Pand. Lib. 4, tit. 9, n. 2 ; 1 Domat, B. 1, tit. 16, § 1, art. 3. §§ 458, 459.] THIRD PERSONS AGAINST PRINCIPALS. 593 Bodem modo tenentur caupones et stabularii, quo exercentes negotium siium recipiunt. Caeterum, si extra negotium rece- perint, non tenebuntur." ^ And the whole doctrine is summed up in another passage, where it treats of the liability of such principals for the frauds, deceits, and thefts of their agents or ser- vants, without their knowledge. " Item exercitor navis, aut cau- ponae, aut stabxili, de dolo aut furto, quod in navi, aut caxipon^, aut stabulo, factum erit quasi ex maleficio teneri videtur, si modo ipsius nullum est maleficium, sed alicujus eorum, quorum operS. navem aut cauponam aut stabulum exercet. Cum enim neque ex maleficio, neque ex contractu, sit adversus eum constituta hsec actio, et aliquatenus culpse reus est, quod operS, malorum hominum uteretur ; ideo, quasi ex maleficio, teneri videtur." ^ Here .we have the rule of the liability of owners and employers of ships and stable-keepers, and the reason for it. They are responsible for the tort and fraud of their agents and servants, although they are not parties to it, quasi ex maleficio, as if they themselves were wrong-doers, because they have made use of the services of such bad agents and servants, in their employment. § 459. And here, again, the like limitations to this liability were recognized in the Roman law, as exist in ours. The prin- cipal was not liable for the torts or negligences of his agents or servants, except in cases within the scope of their employment. Thus, for example, the innkeeper was liable only for the torts or thefts, or damages of his servants, done or committed in his inn, ' Dig. Lib. 4, tit. 9, 1. 3, § 2 ; Pothier, Pand. Lib. 4, tit. 9, n. 3 ; Post, § 459. ' Inst. Lib. 4, tit. 6, § 3 ; 1 Domat, B. 1, tit. 16, § 1, art. 7 ; Id. § 2, arts. 1-4. The same rule is laid down in the Digest. " In eos, qui naves, cauponas, stabula exercebunt, si quid a quoquo eorum, quosve ibi habebunt, furtum fac- tum esse dicetur, judicium datur ; sive furtum ope, consilio exercitoris factum sit ; sive eorum cujus, qui in ea navi navigandi causa esset. Navigandi autem causa accipere debemus eos, qui adhibentur, ut navis naviget, hoc est, nautas." Dig. Lib, 47, tit. 5, Introd. and I. 1 ; Pothier in Pand. Lib. 47, tit. 5, n. 1, 3. " Qusecunque de furto diximus, eadem et de damno debent intelligi. Non enim dubitari oportet, quin is, qui salvum fore recipit, non solum a furto, sed etiam a damno recipere videatur." Dig. Lib. 4, tit. 9, 1. 5, § 1 ; Potbier, Pand. Lib. 4, tit. 9, n. 8 ; Dig. Lib. 14, tit. 1, 1. 1, § 2 ; Pothier, Pand. Lib. 14, tit. 1, n. 6 ; Heinecc. Pand. Ps. 1, Lib. 4, tit. 8, §§ 551-564 ; Story on Bailm. §§ 464- 468; Ersk. Inst. B. 3, tit. 1, §§,28, 29; Id. B. 3, tit. 3, §§ 43-45; 1 Bell, Comm. §§ 398-406 (4th ed.) ; Id. pp. 466-476 (6th ed.) ; 1 Domat, B. 1, tit. 16, Introd. ; Story on Bailm. § 401. AOENOT. 88 694 AGENCY. [CH. XVII. or about the business thereof; and not for such torts or thefts committed in other places. " Eodem modo tenentur caupones et stabularii, quo exercentes negotium suum recipiunt. Cseterum, si extra negotium receperint, non tenebuntur." ^ So, tlie owner or employer of a ship was not liable for the torts or thefts, or dam- ages of the mariner, unless they were done or committed in the ship, or about the business thereof. " Debet exercitor omnium nautarum suorum, sive liberi, sive servi, factum pr^stare. Nee immerito factum eorum prsestat, cum ipse eos suo periculo ad- hibuerit. Sed non alias prasstat, quam si in ips§, nave damnum datum sit. Cseterum, si extra navem, licet a nautis, non prae- stabit." 2 § 460. Similar principles were applied in the Roman law to the ordinary agents employed in the common business of trade and commerce, called Institores ; ^ and also to the cases of domes- tic servants and persons belonging to the family. " Prsetor ait de his, qui dejecerint, vel effuderint ; Unde in eum locum, quo vulgo iter fiet, vel in quo consistetur, dejectum vel effusum quid erit, quantum ex ei, re damnum datum factumve erit, in eum, qui ibi habitaverit, in duplum judicium dabo.* Si servus, insciente do- mino, fecisse dicetur, in judicio adjiciam, aut noxam dedere." ^ These seem to be the most important cases, specially and posi- tively provided for in the Roman law. Tliat law does not seem to have recognized, to the full extent, the general maxim, Respon- deat superior, inculcated by our law.^ 1 Dig. Lib. 4, tit. 9, 1. 3, § 2 ; Pothier, Pand. Lib. 4, tit. 9, n. 3 ; Ante, § 458. "^ Dig. Lib. 4, tit. 9, 1. 7 ; Pothier, Pand. Lib. 47, tit. 5, n. 1 ; 1 Domat, B. 1, tit. 16, § 1, art. 7 ; Id. § 2, arts. 1-4. = Ante, § 8 ; 1 Domat, B. 1, tit. 16, § 3, art. 1 ; Dig. Lib. 14, tit. 3, 1. 5, §§ 1-9; Pothier on Oblig. n. 121, 463, by Evans; Id. in French ed. n. 121, 489. ' Dig. Lib. 9, tit. 3, 1. 1 ; Id. 1. 27, § 11 ; 1 Bl. Comm. 431 ; Inst. Lib. 4, tit. 5, § 1 ; Ersk. Inst. B. 3, tit. 3, § 46 ; Dig. Lib. 19, tit. 2, 1. 11 ; 1 Domat, B. 2, tit. 8, § 1, arts. 1-9. '■ Dig. Lib. 9, tit. 3, 1. 1 ; Pothier; Pand. Lib. 9, tit. 3, n. 1 ; Inst. Lib. 4, tit. 5,1§ 1, 2. « See 1 Stair's Inst. B. 1, tit. 13, § 3 ; Ante, 454, note. Mr. Holt, in the note already cited in § 454, note 1, says, that,. " In the civil law the liability was narrowed to the person standing in the relation of a paterfamilias to the wrong-doer." It is also observable, that Mr. Le Blanc and Mr. Marshall, in arguing the case of Bush «. Steinman, 1 Bos. & Pull. 405, assert, that "The §§ 459-461.] THIRD PERSONS AGAINST PRINCIPALS. § 461. The modern nations of continental Europe have adopted the doctrine of the Roman law to its full extent, and some of them ^t least seem to have carried it further. Pothier lays down the rule in the following broad terms : " Not only is the person who has committed the injury, or been guilty of the negligence, obliged to repair the damage which it has occasioned ; those who have any person under their authority, such as fathers, mothers, tutors, preceptors, are subject to this obligation in respect of the acts of those who are under them, when committed in their presence, and generally when they could prevent such acts, and have not done so. But, if they could not prevent it, then they are not liable ; " Nullum crimen patitur is, qui non prohibet, quum prohibere non potest" (I. 109, ff. de reg. jur.).^ Even when the act is committed in their sight, and with their knowl- edge ; " Culpa caret, qui scit, sed prohibere non potest "* (I. 50, ff. d. tit.'y? Masters are also answerable for the injury occasioned by the wrongs and negligence of their servants. Tliey are even so, when they have no power to prevent them, provided such wrongs or injuries are committed in the exercise of the functions, in which the servants are employed by their masters, although in the master's absence. Tliis has been established, to render masters careful in the choice of those whom they employ. With regard to their wrongs or neglects, not committed in these func- liability of the principal to answer for his agents is founded in the superintend- ence and control, which he is supposed to have over them, citing 1 Bl. Comm. 431). In the civil law, that liability was confined to the person standing in the relation oi paterfamiUas to the person doing the injury." For which they cite Inst. Lib. 4, tit. 6, § 1, and Dig. Lib. 9, tit. 3. These citations clearly prove, that the paterfamilias is liable for the wrongful acts and negligences of his . domestics ; but they do not prove, negatively, that other persons were not liable, as principals, in any other cases, for the wrongs and faults of their agents. The text shows, that, in many other cases, besides that of a pater- familias, the principal was, in the civil law, liable for such wrongs and faults. The learned counsel seem to have misunderstood the true meaning of the text of Blaekstone's Commentaries, which by no means insists upon any such limita- tions. Mr. Justice Heath, in the same case, seems to have entertained the notion, that the Roman law was, or might be, as limited as the learned counsel supposed. But he added, " Whatever may be the doctrine of the civil law, it is perfectly clear, that our law carries such liability much further." s. c. 1 Bos. & Pull. 409. See also Story on Bailm. §§ 464-469. ^ ' Dig. Lib. 50, tit. 17, 1. 109. « Dig. Lib. 50, tit. 17, 1. 60._ 596 AGENCY. [CH. XVIII. tions, the masters are not responsible." ^ The doctrine of the Roman law seems to be followed with more scrupulous exactness in the laws of Spain ^ and of Scotland,^ where, in treating t)f the liability of principals for the acts of their agents, the specific enumerations of the Roman law are to be found followed out. CHAPTER XVIII. DISSOLUTION, OR DETERMINATION, OP AGENCY. [* § 462. Agency may be dissolved by act of principal or agent, and also by operation of law. 463. Brincipal may revoke agent's authority at his own mere pleasure, in general. 464. Roman law and law of modem Europe, the same. 465. General rule strictly applies where the authority has not been actually exercised by agent, or not so as to become obligatory between the parties. 466. 467. When authority is partly executed, how far it may be revoked, considered. Reason for doctrine advanced. 468. Doctrine as laid down by Domat and Erskine. 469. Revocation of power of agent, revokes that of substitute. Exceptions. 470. Revocation takes effect from time when it is made known to party to be affected. 471. Reason of the rule as stated by Pothier. 472. Same doctrine in the Roman law. 473. Domat's statement of the law. 474. Modes of revocation. 475. Revocation by implication. ■ Illustration. 476. Authority not revocable when principal has so stipulated, and agent has an inter- est in the execution. 477. Power coupled with an interest or given for valuable consideration, unless specially made revocable, is irrevocable. 478. Agency may be determined by renunciation of agent. 479. Roman law differed in some respects from our law. 480. Agency terminates by expiration of the period, during which it is to exist and have effect. 481. A revocation by operation of law may be by a change of condition, or of state, producing an incapacity of either party. 482. Bankruptcy of principal revokes authority of his agent touching any rights of property, of which he is devested by the bankruptcy. 483. The doctrine of revocation from incapacity does not apply to the case of an authority coupled with an interest. > Pothier on Oblig. by Evans, n. 121, 463 (in the French ed. n. 121, 489). " 2 Moreau & Carlt. Partidas, 6, tit." 8, 1. 26, p. 743 ; Story on Bailm. §§ 465-468. " Ersk. Inst. B. 3, tit. 3, §§ 43-46 ; 2 Bell, Comm. §§ 398-406 (4th ed.) ; Id. pp. 465-476 (5th ed.) ; 1 Stair, Inst. B. 1, tit. 18, § 3. §§ 461, 462.] DISSOLUTION OP AGENCY. 597 484. Principles very similar are adopted in the jurisprudence of foreign countries. 485. Agent incapacitated to act for himself, not necessarily incapacitated to act for another. 486. Bankruptcy of agent does not necessarily revoke his authority. 487. Insanity of an agent, necessarily a revocation of his authority. 488. EevocaUon may be, by operation of law, or by the death, either of the principal or of the agent. 489. Exception, where the authority is coupled with an interest in the thing, actually vested in the agent. 489 a. Recent case illustrating this exception. 490. General principle applies a fortiori to the death of the agent. 491. These doctrines were fully recognized in the Eoman law. But if the business was in part executed by agent at his death, the remainder might be executed by his heir. 492. Modern nations of continental Europe have adopted from Eoman law similar principles. 493. Exceptions mentioned by Pothier. 494. Principles of the Scottish law. 495. How far law of England and America conforms to these principles. 496. It seems that agencj' is not necessarily revoked by death of principal, when the act may be done in sole name of principal. 497. Sajue doctrine seems to be understood to apply to cases of policies of insurance, procured by insurance brokers in their own name, but on beHalf of their prin- cipals. 498. Subject of implied revocation from the death of principal may require' further con- sideration and examination than it has hitherto received. 499. Agency is dissolved by execution of the power or extinction of subject-matter of agency or principal's power over it. 500. Indebted to England for most comprehensive exposition of the law of agency.] § 462. We come, in the next place, to the consideration of the manner in which an agency may be dissolved or determined, and the effect thereof. And a dissolution of the agency may take place in two different ways : firstj by the act of the principal or agent ; and, secondly, by operation of law. The former takes place, wherever there is a revocation by the principal, or a renunciation by the agent. The latter may take place in various ways : first, by the termination of the agency, by the mere efflux of time, or by the expiration of the period, or by the occurrence of the event to which and by which it was originally limited ; secondly, by the change of the state or condition of the principal or of the agent ; thirdly, by the death of either party ; and, fourthly, by the natural cessation of the power, in consequence of the extinction of the subject-matter, or of the principal's power over it, or by the complete execution of the power.^ ' See Pothier, de Mandat, n. 100 ; 2 Kent, Comm. Lect. 41, p. 643 (4th ed.) . Pothier, in his edition of the Pandects (Lib. 17, tit. 1, teiiia pars, Introd. to n. 76). " Potissimae causae, ex quibus mandatum solvitur, hse sunt ; mors man- 598 AGENCY. [CH. XTIII. § 463. First. Let us consider the dissolution of an agency by the revocation of the principal. In general, the principal has a right to determine or revoke the authority given to his agent at hi^ own mere pleasure ; for, since the authority is conferred by his mere will, and is to be executed for his own benefit and his own purposes, the agent cannot insist upon acting, when the principal has withdrawn his confidence, and no longer desires his aid.i This 'is so plain a doctrine of common sense and common justice, that it requires no illustration or reasoning to support it. [And although the agent is appointed under seal, it has been held that his authority may be revoked by parol.^] At what time the revocation will take effect, and the modes by which it is accomplished, will presently come under our consideration.* § 464. The civil law contained an equally broad doctrine. " Si mandavero exigendam pecuniam, deinde vohintatem muta- vero, an sit mandati actio vel mihi, vel hseredi meo,? Et ait Marcellus ; Cessare mandati actionem, quia extinctum est man- datum, finitS, voluntate."* The same principle has infused itself into the jurisprudence of modern Europe ; as indeed it could not' fail to do, since it is but an application of a maxim founded upon the natural rights of men in all ages in regard to their own private concerns, when the law has not interfered to prohibit the exercise of them.^ datarii ; mors mandatoris ; si mandator revooaverit mandatum ; si mandatarius mandato renuntiaverit.'' Mr. Thomson, in speaking of the law of Scotland, says, " Mandates terminate, in general, by the death of the mandant or man- datary ; by the insanity of the latter ; by revocation ; by renunciation ; or by the sequestration of the mandant, which vests his estate, and all the rights con- nected with it, in his creditors. The mandatary's bankruptcy does not appear to be inconsistent with the continuance of his mandate." Thomson on Bills of Exchange, pp. 224, 225 (2d ed. 1836). \ Paley on Agency, by Lloyd, 170, 184-188 ; 2 Liverm. on Agency, 308 (ed..l818) ; Story on Bailm. §§ 202, 207-209 ; United States «. Jarvis, Daveis, 289. " Brookshire v. Brookshire, 8 Ired. 74. ' Post, §§ 470-475. • Dig. Lib. 17, tit. 1, 1. 12, § 16; Pothier, Pand. Lib. 17, tit. 1, n. 79; 1 Domat, B. 1, tit. 15, § 4, art. 1; Heinecc. Elem. Pand. Lib. 17, tit. 1, § 238; Inst. Lib. 3, tit. 27, § 9. * Pothier on Oblig. by Evans, n. 474 (in French ed. n. 510) ; 1 Bell, Comm. § 413 (4th ed.) ; Id. pp. 488-490 (5th ed.) ; Ersk. Inst. B. 3, tit. 3, § 40 ; 1 Stair, Inst. B. 1, tit. 12, § 8. §§ 463-466.] DISSOLUTION op agency. 599 § 465. Such is the general rule ; and it strictly applies in all cases where the authority has not been actually exercised at all by the agent.^ For, in such a case, the principal .may exercise his power of revocation at any moment. So, if it has been in part put in the course of execution, but not to such an extent as to become obligatory between the parties ; as, if preliminary pro- ceedings only have been instituted.^ Thus, for example, if a broker should enter into a verbal agreement to sell goods for his principal, and the sale is within the reach of the statute of frauds (which requires the agreement to be in writing), and, before the broker signs the written agreement of sale, the principal should revoke his authority, the revocation will have full validity .^ So, if the sale respects lands, and is within the statute of frauds, the same rule will, under the like circumstances, apply. So, if an insurance broker should negotiate a policy of insurance for his principal, and before it is completed, the principal should dissent, and repudiate the transaction, the revocation will be complete and operative.* Upon a similar ground, if a broker should deliver money or goods to a bailee, to be delivered to a third person, he may countermand the order at any time before the delivery thereof to the third person, or his assent thereto.^ But after the third iperson has assented thereto, the bailment is not countermandable, if there is a valuable consideration for the bailment.^ § 466. But let us suppose that the authority has been in part actually executed by the agent ; in that case the question will arise, whether the principal can revoke the authority, either in the whole or as to the part which remains unexecuted. The true principle would seem to be, that if the authority admits of severance, or of being revoked, as to the part which is unexe- cuted, either as to the agent or as to third persons, then, and in ' 2 Liverm. on Agency, 309 (ed. 1818). « Post, §§ 466, 467. " Paley on Agency, by Lloyd, 1€5 ; Farmer v. Robinson, 2 Campb. 339, n. ' Paley on Agency, by Lloyd, 185; Warwick v. Slade, 3 Campb. 127; Bristow e. Porter, 2 Stark. 60. ' Story on Bailm. §§ 207-210 ; Scotthorn v. South Staffordshire Railway, 8 Exch. 341; 3 Chitty on Com. & Manuf. 223, 224; Lewis ». Sawyer, 44 Maine, 332. » Hodgson V. Anderson, 3 B. & Cressw. 842 ; Creager v. Link, 7 Md. 267 ; 2 Story on Eq. Jurisp. §§ 1041-1047 ; Post, § 477. 600 AGENCY, [CH. XTIII. such case, the revocation will be good as to the part unexecuted, but not as to the part already executed. But if the authority be not thus severable, and damage will thereby happen to the agent on account of the execution of the authority pro tanto, there the principal will not be allowed to revoke the unexecuted part, or, at least, not without fully indemnifying the agent.^ As to the rights of the other contracting party in this last case, they are not affected by the revocation ; but he will retain them all, as well as all the remedies consequent upon any violation of them, in the same manner as if no revocation has taken place.^ § 467. Perhaps there is no direct authority in our law for .the support of this proposition. ^ But it stands so clearly approved by natural justice, as well as by the principles of the Roman law and the jurisprudence of modern commercial nations, that it is difficult to resist it. Thus, it is laid down in the Roman law, as a principle of broad and general justice : " Nemo potest mutare consilium suum in alterius injuriam."* And the very case is put of a purchase authorized and afterwards revoked. " Si man- d§.ssem tibi, ut fundum emeres, postea scripsissem, ne emeres ; tu antequam scias me vetuisse, emisses ; mandati tibi obligatus ero, ne damno officiatur is, qui suscipit mandatum." ^ The reason here assigned for making the sale obligatory has great force ; for damage might otherwise happen to the agent. Pothier says, that if the agent, when he receives knowledge of the revoca- tion of his authority, has already commenced executing the busi- ness, he is nevertheless authorized to do whatever may be a necessary duty or consequence of that which he has commenced (" faire ce, qui est une suite n^cessaire de ce qu'il avoit com- mence "), and the principal will be bound thereby. ^ § 468. Domat lays down the doctrine in the following terms : ' 1 Bell, Comm. § 413 (4th ed.) ; Id. p. 489 (5th ed.) ; Post, § 483, note 494 ; United States v. Jarvis, Daveis, 274. ' 2 See 3 Chitty on Com. & Manuf. 223, 224 ; 2 Story on Eq. Jurisp. §§ 1041- 1047; Hodgson ». Anderson, 3 B. & Cressw. 842; 1 Domat, B. 1, tit. 16, § 3, art. 9. ' 3 Chitty on Com. & Manuf. 223, 224; 2 Kent, Comm. Lect. 41, p. 643 (4th ed) ; Story on Bailm. §§ 208, 209 ; 1 Bell, Comm. § 413 (4th ed.) ; Id. p. 489 (5th ed.). But See United States v. Jarvis, Davies, 274. * Dig. Lib. 50, tit. 17, 1. 76. * Dig. Lib. 17, tit, 1, I. 15 ; Pothier, Band. Lib. 17, tit. 1, n. 89. « Pothier, de Mandat, n. 121. §§ 466-469.] DISSOLUTION op agency. 601 " The power and charge of a proxy, or other agent, expire by the change of the -will of the person who made choice of him. For this choice is free, and he may revoke his order whenever he thinks fit ; provided he makes known his revocation to tlae person whom he revokes, and that all things be still entire. But if the proxy or other agent had already executed the order, or begun to execute it, before he knew any thing of the revocation, it would be without effect, as to what had been ah-eady executed ; and he will be indemnified as to any obligation into which the said order may have engaged him." i So, Erskine lays it down as the law of Scotland, that to justify a revocation, matters must remain entire. "For (says he), if the mandatary has executed apart of his commission, and thereby becomes concerned that it should not be revoked ; if, for instance, he should, on the faith thereof, have obliged himself to purchase goods from a third party, the mandant cannot effectually revoke his commission till he relieve the mandatary from such engagements." ^ § 469. It follows from what has been said, that, when the power of an agent is revoked or terminated, that also of any sub- stitute appointed by and under him, it being a dependent po\^er, is ordinarily also revoked. This is a natural result from the presumed intention of the principal, who, in withdrawing or terminating the authority of his agent, withdraws, by implication, the derivative authority of liis substitute, whether it is expressly provided for in the original delegation or not.^ It is also a result of law ; for, as the agent could not after the revocation do the act personally, neither could the substitute acting in his stead, since the source of the authority has ceased to exist. And, accordingly, Pothier assigns this as the reason of the rule.* Exceptions may exist ; as where, from the express terms, or from the nature of the power, it is a just inference that the principal intends that the substitute shall continue to act for him, notwith- standing the revocation of the authority of his immediate agent.^ ' 1 Domat, B. 1, tit. 15, § 4, art. 1, by Strahan. « Ersk. Inst. B. 3 tit. 3, § 40 ; 1 Bell, Coram. § 413 (4tli ed.); Id. pp. 488-490, (6th ed.). ' Pothier, de Mandat, n. 112 ; 2 Liverm. on Agency, 307, 308 (ed. 1818) ; Post, § 496. * Pothier, de Mandat, u. 112. ° Post, § 490. 602 AGENCY. [CH. XTIII. In many cases of the appointment of public officers, it is expressly provided that their deputies shall continue to act, notwithstanding the removal or death or incapacity of the superior officer who appointed them. The same presumption may arise in some cases of a private agency. Thus, for example, the removal or death qr incapacity of the master of a ship, who has appointed the mate, will not be understood to revoke the appointment of the latter ; for it is ordinarily the duty of the mate to act as master, when- ever the place of the master is vacant from any cause whatsoever, and no other substitute is provided by the owner. § 470. In the next place, let us consider at what time and under what circumstances the revocation, by the act of the prin- cipal, takes effect. And here the rule of our law is equally clear and comprehensive, and just. As to the agent himself, subject to what has been already stated, it takes effect from the time when the revocation is made known to him ; and as to third per- sons when it is made known to them, and not before. Until therefore the revocation is. so made known, it is inoperative. If known to the agent, as against his principal, his rights are gone ; but, as to third persons who are ignorant of the revocation, his acts bind both himself and his principal.^ [Thus, where an agency constituted, by writing was revoked, but the written authority was left in the hands of the agent, and he subsequently exhibited it to a third person, who dealt with him as agent on the faith of it, without any notice of the revocation, the act of the agent, within the scope of the authority, was held to bind the principal.^] Hence it is that, if a clerk or agent is employed to sign, indorse, or accept bills and notes for his principal, and he is discharged by the principal, if the discharge is not known by persons dealing with him, notes and bills subsequently signed, indorsed, or accepted by the clerk or agent, will be binding upon the principal.^ Indeed, this is but another application of the • Beard v. Kirk, 11 N. H. 397. " Salte V. Field, 6 T. R. 215, per BuUer, J. ; Anon v. Harrison, 12 Mod. 346 ; Paley on Agency, by Lloyd, 188 ; Id. 570 ; Hazard v. Treadwell, 1 Str. 506 ; 2 Liverm. on Agency, 306, 310 (ed. 1818) ; 2 Kent, Comm. Lect. 41, p. 644 (4th ed.); Morgan v. Stell, 5 Binn. 305; Story on Bailm. § 208; 1 Bell, Comm. 413 (4th ed.) ; Id. pp. 488-490 (6th ed.) ; Bowerbank v. Morris, Wallace, 126 ; Beard v. Kirk, 11 N. H. 397. ' 3 Chitty on Com. & Manuf. 197. §§ 469-472.] DISSOLUTION op agency. 603 known maxim, of law and equity, that, where one of two innocent persons must suffer, he shall suffer who, by his confidence or silence or conduct, has misled the other.i § 471. Pothier has stated the reason in succinct but accurate tej-ms, illustrating it by referring to the case of payments, made in ignorance of the revocation, where the principal is clearly bound. "The reason (says he), is, that the mistake of the debtor, who pays after the revocation of the procuration, arises rather from the fault of the creditor who ought to apprise him of the revocation than of the debtor himself, who, seeing an au- thority to receive, and having no reason to suppose that it has been revoked, has a sufficient ground for making the payment accordingly. Therefore it is not just that he should suffer from this mistake, and be liable to a second payment; the creditor, who alone is in fault, is the only person who should suffer." ^ § 472. The same persuasive doctrine is fully recognized in the Eoman law. " Sed, si quis mandaverit, ut Titio solvam, deinde vetuerit eum accipere, si ignorans prohibitum eum accipere solvam, liberabor. Sed si sciero, non liberabor.^ Si Titium omnibus negotiis meis prsposuero, deinde vetuero eum, igno- rantibus debitoribus, administrare negotia mea ; debitores ei sol- vendo, liberabuntur. Nam is qui omnibus negotiis suis aliquem proponit, intelligitur etiam debitoribus mandare, ut procurator! solvant.* Dispensatox'i, qui, ignorante debitore, remotus est ab actu, recte solvitur. Ex voluntate enim Domini ei solvitur ; quam si nescit mutatam, qui solvit, liberatur." ^ The converse proposi- tion, that a payment to an agent who has no authority, or whose authority is exceeded or known to be revoked, is invalid, is as clearly maintained.^ " De quo palam proscriptum fuerit, Ne cum eo contrahatur, is prsepositi loco non habetur. Non enim permit- tendum erit cum Institore contrahere. Sed, si quis nolit contrahi, prohibeat ; cseterum, qui praeposuit, tenebitur ipsa prsepositione." "^ • Ante, §§ 127, 443. " Pothier on Oblig. by Etans, n. 80, n. 474 (in French edition, n. 80, 510). 3 Dig. Lib. 46. tit. 8, 1. 12,.§ 2 ; Pothier, Pand. Lib. 46, tit. 8, n. 31 ; 1 Domat, B. 1, tit. 16, § 3, art. 9. * Dig. Lib. 46, tit 3, I. 84, § 8 ; Pothier, Pand. Lib. 46, tit. 8, u. 31. ' Dig. Lib. 46, tit. 3, 1. 61 ; Pothier, Pand. Lib. 46. tit. 3, n. 31 ; Inst. Lib. 3, tit. 27, § 10. « Dig. Lib. 46, tit. 8, 1. 34, § 4 ; Pothier, Pand. Lib. 46, tit. 3, n. 33 ; Dig. Lib. 14, tit; 3, 1.11, § 2; Pothier, Pand. Lib. 14, tit. 3, n. 7. ' Dig. Lib. 14, tit. 3, I. 11, § 2 ; Pothier, Pand. Lib. 14, tit. 3, n. 7. 604 AGENCY. [CH. XTIII. § 473. Domat sums up the doctrine in the following language : " The power of factors and agents is determined by their revoca- tion. But if, after they are recalled, they treat with persons, who knew nothing of their being recalled, what they shall have transacted will oblige the master, unless the revocation has been published, if it was the custom so to do, or that by other circumstances the person who treated with the factor might have known, that he ought not to. have treated with him." ^ Indeed, this may be said to be the universal rule laid down in all modern jurisprudence.^ § 474. In the next place, as to the modes by which an au- thority may be revoked. It may be express, as by a direct and formal declaration, publicly made known, or by an informal writing, or by parol ; or it may be implied from circumstances.^ What circumstances will or will not amount to a revocation, or to notice of a revocation, by implication, cannot be stated with any definite certainty. But there are some acts which admit of little or no doubt. Thus, for example, if the principal appoints another person to do the same act, this will ordinarily be con- strued to be a revocation of the power of the former agent.* The same presumption existed in the civil law. " Julianus ait ; Eum, qui dedit diversis temporibus procuratores duos, posteriorem dando priorem prohibuisse videri." ^ The same doctrine is recognized in the French law.^ This presumption, however, ' 1 Domat, B. 1, tit. 16, § 3, art. 9, by Stralian. " Pothier, de Mandat, n. 121 ; 1 Bell, Comm. § 413 (4th ed.) ; Id. pp. 488-490 (Sthed.). ' Story on Bailm. §§ 207, 208; Morgan v. Stell, 6 Binn. 305; Copeland v. Merc. Ins. Co. 6 Pick. 198 ; Smith on Merc. Law, pp. 131, 132 (3d ed. 1843). " Morgan v. Stell, 5 Binn. 305; Copeland «. Merc. Ins. Co. 6 Pick. 198; Story on Bailm. § 208. [* But this depends on circumstances and the nature of the agency. The object of the agency may be more eflfectually accomplished by the appointment of a second agent with the same authority as the first, without revoking such authority. It was held in Davol v. Quimby, 11 Allen, 208, that an agent's authority to collect money for his principal is not revoked by the mere appointment of another agent with like authority ; and a pay- ment by the debtor to the first agent, after receiving notice of the appoint- ment of the second, was held to discharge the debt, when there was no other evidence of a revocation of the first agent's authority.] 5 Dig. Lib. 3, tit. 3, 1. 31, § 2 ; Pothier, Pand. Lib. 3, tit. 3, n. 27 ; 1 Domat, B. 1, tit. 15, § 4, art. 2. " Pothier, de Mandat, n. 114, 115. §§ 473-477.] DISSOLUTION of agency. 605 arises only in cases where there is an incompatibility in the exer- cise of the authority by both ; for, if the original agent has a general authority, and the second agent is appointed only for a special object or purpose, there the revocation will operate only p-o tanto, and not as a total revocation. The maxim of the Eo- man law is as follows : " In toto jure generi per speciem derogatur, et illud potissimum habetur, quod ad speciem directum est." ^ On the other hand, if the first authority is special and the second authority is general, it seems to have been thought that tlie pre- sumption ought to be the other way ; namely, that the second is not designed to operate as a revocation of the first.^ But this may probably depend upon very nice considerations. § 475. A revocation may also arise by implication or pre- sumption from varioiis other circumstances. Thus, if the prin- cipal should intrust another with authority to collect certain debts for him, and should deliver him at the time the vouchers or instruments, negotiable or otherwise, by which such debts are evidenced, and which are to be delivered to tlie debtors when paid ; and afterwards the principal should take back the vouchers or other instruments, that will be an implied revocation of the authority of the agent.^ So, if the principal should himself col- lect the debts, that also will be an implied revocation. § 476. We have already stated, that the general rule is, that the principal may revoke the authority of his agent at his mere pleasure.* But this is open to some exceptions, which, however, are entirely consistent with the reason upon which the general rule is founded. One exception is, when the principal has expressly stipulated that the authority shall be irrevocable, and the agent has an interest in its execution. Both of these circumstances must concur; for, although in its terms an authority may be expressly declared to be irrevocable, yet, if the agent has no interest in its execution, and there is no valid consideration for it, it is treated as a mere nude pact, and is deemed in law to be rev- ocable upon the general principle, that he who alone has an inter- est in the execution of an act is also entitled to control it. § 477. But, where an authority or power is coupled with an » Dig. Lib. 60, tit. 17, 1. 80; Pothier, de Mandat, n. 115-117. " Pothier, de Mandat, n. 16. ' Ibid. 118. ♦ Ante, § 462. 606 AGENCY. [CH. 2TIII. interest, or where it is givea for a valuable consideration, or where it is a part of a security, there, unless there is an express stipulation, that it shall be revocable, it is, from its own nature and character, in contemplation of law, irrevocable, whether it is expressed to be so upon the face of the instrument, conferring the authority, or not.^ Thus, for example, if a power of attorney to levy a fine is executed, as a part of a security to a creditor, the power is irrevocable.^ So, if a letter of attorney to sell a ship is taken as a security upon a loan of money, it is irrevocable.s > Smith on Merc. Law, 71, 72 (2d ed.) ; Id. B. 1, ch. 6, § 4, pp. 131, 132 (3d ed. 1843) ; 2 Liverm. on Agency, 308, 309 (ed. 1818) ; Paley on Agency, by Lloyd, 184, 185 ; 3 Chitty on Com. & Manuf. 223, 224 ; Hunt v. Rousma- nier's Adm'r, 2 Mason, 244 ; Id. 342 ; s. c. 8 Wheat. 177 ; 1 Peters, 1 ; Bromley v. Holland, 7 Ves. 28 ; Lepard v. Vernoni, 2 V. & Beam. 61 ; Wat- son V. King, 4 Campb. 227, 273 ; 2 Kent, Comm. Lect. 41, pp. 643, 644 (4th ed.) ; G-aussen v. Blorton, 10 B. & Cressw. 731 ; Story on Bailm. § 209. See also Metcalf u. Clough, 2 Mann. & Ryl. 178 ; Smyth v. Craig, 3 Watts & Serg. 14 ; Smart v. Sanders, 6 Mann. Gr. & Scott, 895 ; Knapp v. Alvord, 10 Paige, 205; Marfield «. Douglas, 1 Sandf. Sup. Ct. (N. Y.) 360. This doc- trine was much considered in the case of Hunt v. Eoijsinanier's Adm'r, 8 Wheat. 174; s. o. 1 Peters, 1 ; and the distinction between a xaere power, and a power coupled with an interest, was there clearly pointed out. On that occasion, Mr. Chief Justice Marshall explained, what was meant by a power coupled with an interest, and said, " It becomes necessary to inquire, what is meant by the expression ' a power coupled with an interest.' Is it an inter- est in the subject, on which the power is to be exercised, or is it an interest in that which is produced by the exercise of the power ? We hold it to be clear, that the interest, which can protect a power after the death of a person, who creates it, must be an interest in the thing itself. In other words, the power must be engrafted on an estate in the thing. The words themselves would seem to import this meaning. ■ A power coupled with an interest,' is a power, which accompanies, or is connected with, an interest. The power and the in- terest are united in the same person. But, if we are to understand by the word ' interest,' an interest in that which is to be produced by the exercise of the power, then they are never united. The power, to produce the interest, must be exercised, and by its exercise is extinguished. The power ceases, when the interest commences, and, therefore, cannot, in accurate law language, be said to be ' coupled ' with it." See also Com. Dig. Attorney, C. 9, 10. [* The use of the word " irrevocable" in a power of attorney does not prevent its revocation by the principal, unless it is coupled with a consideration, or the agent is interested in its execution ; nor does it confer the power upon the ^ agent to dispose of the property otherwise, than as directed by the principal. Mac Gregor v. Gardner, 14 Iowa, 326.] " Walsh V. Whitcomb, 2 Esp. 665 ; Paley on Agency, by Lloyd, 184. ^ Hunt V. Rousmanier's Adm'r, 2 Mason, 244 ; Id. 342 ; s. c. 8 Wheat. 274 ; 1 Peters, 1. §§ 477, 478.] DISSOLUTION op agency. 607 So, if the principal assigns all his effects for the benefit of his creditors, and gives the assignee a power of attorney to col- lect and receive all debts and outstanding claims, the power is irrevocable.^ So, if a power of attorney to sell lands is given to a creditor to pay his debts out of the proceeds -of the sale, the power is irrevocable.^ So, a remittance to an agent of money or goods, to be delivered to a creditor in discharge of his debt, is irrevocable, after the creditor has assented thereto, and signified his assent to the agent.^ The ground of this doctrine, is that a party shall not be at liberty to violate his own solemn engage- ment, or to vacate his own security by his own wrongful act ; for that would be to enable him to perpetrate a fraud upon innocent persons, who have placed implicit confidence in him, which is against the clearest principles of justice and equity. But a power of attorney, although irrevocable by the party, and although founded upon a valuable consideration, or given as a security, is nevertheless, as we shall presently see, revoked by the death of the party, unless it be also coupled with an interest.* § 478. Secondly. In the next place, the agency may be deter- mined by the renunciation of the agent.^ This renunciation may be before any part of the authority is executed, or when it is in part executed.^ But, in either case, if the agency is founded upon a valuable consideration, the agent, by renouncing it, makes himself liable for the damages which his principal may sustain thereby.'^ If the agency is purely voluntary and gratuitous, there, according to our law, the principal will not be entitled to any damages for its non-execution. But if it was in part exe- cuted, and then renounced, and the principal sustains damages ' Walsh V. Whitcomb, 2 Esp. 565. " Gaussen v. Morton, 10 B. & Cressw. 731. [* Goodwin v. Bowden, 64 Maine, 424.] ' Hodgson V. Anderson, 3 B. & Cressw. 842 ; Creager v. Link, 7 Md. 267 ; 2 Story on Eq. Jurisp. §§,1041-1043 ; Ante, § 466. [* The exception exist- ing in the case of a power coupled with an interest, does not, it seems, apply from the mere fact that the principal and agent are partners. Travers v. Crane, 16 Cal. 127.] * Post, §§ 488, 489. ' See Case v. Jennings, 17 Texas, 661. » Story on Bailm. § 202. ' Story on Bailm. § 436 ; Jones on Bailm. 101 ; 3 Black. Comm. 167 ; Elsee V. Gatward, 5 T. R. 143 ; Thome v. Deas, 4 John. 84. 608 AGENCY. [CH. XVIII. thereby, the agent will be held responsible therefor, upon the known distinction between nonfeasance and misfeasance, in cases of gratuitous agency.^ But in all cases, where the agent re- nounces his agency, he would seem to be bound to give notice thereof to the principal ; and if he does not, and damage is there-- by sustained, it may, perhaps, if the omission be fraudulent, give rise, even in bur law, to a claim for damages, even though it be a case of gratuitous agency.^ § 479. The Roman law, upon this point, differed in some re- spects from our law. In that law, if an • agent even gratuitously undertook to perform a particular business or act, he was bound to perform it, if he was able to perform it, and no just excuse intervened. And if he did not, and the principal sustained any damage thereby, the agent was responsible therefor.^ " Sicut autem liberum est (says the Digest), mandatum non suscipere, ita susceptum coiisummarc oportet, nisi renunciatum sit. Re- nunciari autem ita potest, ut integrum jus mandator! reservetur, vel per se, vel per alium, eandem rem commode explicandi, aut si redundet in eUm captio, qui suscepit mandatum. Et quidem, si is, cui mandatum est, ut aliquid mercaretur, mercatus non sit, neque renunciaverit, se non empturum, idque su&, non alterius culpa fecerit, mandati actione teneri eum convenit. Hoc amplius tenebitur (sicuti Mela quoque scripsit), si eo tempore per frau- dem renunciaverit, cum jam recte emere non possit."* Again: " Et, si susceptum non impleverit, tenetur." ^ And again : " Ad comparandas merces data pecunia, qui mandatum suscepit, fide rupta, quanti, interest mandatoris, tenetur." ^ " And again : Qui mandatum suscepit, si potest id explere, desei^re promissum of- ficium non debet; alioquin, quanti mandatoris intersit, dam- nabitur." ^ If he could not perform the act, he was bound to give > Story on Bailm. §§ 9, 164r-172. = See Dig. Lib. 17, tit. 1, 1. 22, § 11, cited post, § 479. ' Story on Bailm. §§ 164-172 j Inst. Lib. 3, tit. 27, § 11 ; 1 Domat, B. 1, tit. 15, § 4, arts. 3-6. * Dig. Lib. 17, tit. 1, L 22, § 11 ; Pothier, Pand. Lib. 17, tit. 1, n. 25 ; Id. u. 80. » Dig. Lib. 17, tit. 1, 1. 5, § 1 ; Pothier, Pand. Lib. 17, tit. 1, n. 26. « Cod. Lib. 4, tit. 36, L 16 ; Pothier, Pand, Lib. 17, tit. 1, n. 25 ; Id. n. 80. ' Dig. Lib. 17, tit. 1, 1. 27, § 2; Pothier, Pand. Lib. 17, tit. 1, n. 26; Id. n. 80. §§ 478-480.] DISSOLUTION op agency. 609 notice to the principal, if practicable ; otherwise, he was respon- sible in damages. " Si vero intelligit, explore se id officium non posse, id ipsum, cum primum poterit, debet mandatori nunciare ; ut is, si velit, alterius opera utatur. Quod si, quum possit nun- ciare, cessaverit, quanti mandatoris intersit, tenebitur. Si, aliqua ex causa non poterit nunciare, securus erit." ^ But if the prin- cipal sustained no damage by the renunciation, then the agent was not liable in any action on account of his renunciation. " Mandavi, ut negotia gereres ; si nihil deperierit, quamvis nemo giesserit, nulla actio est ; aut si alius idonee gesserit, cessat actio mandati. Bt in similibus hoc idem erit probandum." ^ The same rule seems to prevail in those modern nations which have de- rived the basis of their jurisprudence from the Roman law.^ § 480. Thirdly. In the next place, as to the revocation of the agency by operation of law. This, as we have seen, may arise in varioas ways. And first, where the agency terminates by the expiration of the period, during which it is to exist and to have effect.* Thus, for example, if an agency is created by the principal to endure for a year, it becomes extinct when that year has expired. So, if a person, about to depart on a voyage, should, by power of attorney, appoint an agent to manage his affairs until his return home, there, upon his return home, the authority would expire by its own limitation.^ Indeed, Pothier contends, that if a power is given by a person, going abroad, to an agent to manage his affairs, without containing any words of limitation as to its duration, it ought to be presumed to be re- > Dig. Lib. 17, tit. 1, 1. 27, § 2 ; Pothier, Pand. Lib. 17, tit. 1 , n. 26 ; Id. n. 80. " Dig. Lib. 17, tit. 1* 1. 8, § 6 ; Pothier, Pand. Lib. 17, tit. 1, n. 27 ; Inst. Lib. 3, tit. 27, § 11. •" Ersk. Inst. B. 3, tit. 3, § 40; 1 Domat, B. 1, tit. 15, § 3, arts. 1, 12; Id. § 4, arts. 3-5 ; Pothier, de Mandat, n. 88-45 ; Story on Bailm. § 164. ■* 3 Chitty on Com. & Manuf. 233 ; Blackburn v. Scholes, 2 Campb. 341- 844; Comm. Dig. Attorney, B. 9, 10; 1 Bell, Comm. §418 (1), (4th ed.) ; Id. pp. 488-490 (5th ed.) ; 2 Liverm. on Agency, 307 (ed. 1818) ; Paley on Agency, by Lloyd, 188, 189 ; Smith on Merc. Law, 72 (2d ed.) ; Id. pp. 131, 132 (3d ed. 1843) ; Dickinson v. Lilwall, 4 Campb. 279. [♦"When the inhabi- tants of a town have by vote authorized their treasurer to borrow money for the adjustment of a certain state tax, and the tax has been adjusted without the necessity of borrowing money, his authority to borrow money upon that vote thereupon ceases. Benoit v. Conway, 10 Allen, 528.] * 1 Bell, Comm. § 413 (4th ed.) ; Id. pp. 488-490 (6th ed.) ; Pothier on Oblig. n. 474 (n. 509 of French ed.) ; Pothier, de Mandat, n. 119. AGENCY. 39 610 AGENCT. [CH. XTIII. voked upon his return home, unless there are some circumstances in the case to repel that presumption ; such as allowing the agent to act in the agency, without objection, after his return home.^ § 481. Fourthly. A revocation by operation of law may be, by a change of condition or of state, producing an incapacity of either party.''' This proceeds upon a general rule of law, that the derivative authority expires with the original authority, from which it proceeds. The power of constituting an agent is founded upon the right of the principal to do the business himself ; and when that right ceases, the right of creating an appointment, or of continuing the appointment of an agent already made, for the same purpose, must cease also.^ In short, the derivative authority can- not generally mount higher, or exist longer, than the original authority. Thus, if an unmarried woman should, as principal, execute a power of attorney, or give any other authority to an agent, and afterwards she should marry, the marriage would, ipso facto, amount to a revocation of the power ; for a married woman has, in general, by our law, no right to authorize an agent to do any act -in her name, or to engage in any contract for her, or to dispose of any of her property.* So, if a principal should become insane, that would or might operate as a suspension or revocation of the authority of his agent during the continuance of the insanity ; ^ for the party himself, during his insanity, could not personally do a valid act ; and his agent cannot, in virtue of a derivative authority, do any act for and in the name of his principal, which he could not lawfully do for himself.^ ' Pothier, de Mandat, n. 119. See also id. n. 112 ; 2 Liverm. on Agency, 307 (ed. 1818). " Story on Bailm. § 206 ; Pothier, de Mandat, n. HI, 112. ^ 2 Liverm. on Agency, 306 (ed. 1818) ; Hunt v. Rousmanier's Adm'r, 8 Wheat. 174, 202-20i ; Pothier, de Mandat, n. 103. * 2 Liverm. on Agency, 307 (ed. 1818) ; Anon. 1 Salk. 117, 399; 2 Kent, Comm. Lect. 41, p. 645 (4th ed.) ; White v. Gifford, 1 Roll. Abridg. 331, title Authoriiie, E. pi. 4; Anon. W. Jones, 388; Charnley v. Winstanly, 5 East, 266 ; Story on Bailm. § 206. ^ Ejiivis B. Lane, 10 N. H. 156. « Hunt V. Rousmanier's Adm'r, 8 Wheat. 174, 201-204. This is clear, where the party's lunacy is established under an inquisition, or where he is put under guardianship. But some doubt seems to be entertained, whether, before such inquisition or guardianship, there is any implied suspension or revocation of the agent's authority. Mr. Bell (1 Bell, Comm. § 413, pp. 395, 396, 4th ed. ; Id. pp. 488-490, 6th ed.) considers insanity, not so established, to be no §§480-482.] DISSOLUTION of agency. 611 § 482. Upon similar grounds, the bankruptcy of the principal operates as a revocation of the authority of his agent, touching any rights of property of which he is devested by the bank- suspension or revocation of the authority. He says, in the fifth edition (the language in the 4th edition slightly differs) , " Insanity is not an implied natural termination to a mandate ; nor is there an existing will to recall the former appointment ; nor is the act notorious, by which the public may be aware of such failure of capacity. It was to this interesting question chiefly, that the metaphysical discussion, to which I have already alluded, was applied. But the strong practical ground of good sense, on which the question was disposed of, as relative to the public, was, that insanity is contradistinguished from death by the want of notoriety ; that all general delegations of power on which a credit is once raised with the trading world, subsist in force to bind the grantor, until recalled by some public act or individual notice ; and that, while they continue in uninterrupted operation, relied on by the public, they are, in law, to be held as available generally ; leaving particular cases to be dis- tinguished by special circumstances of mala fides. The question does not ap- pear to have occurred in England ; but the opinion of very eminent English counsel was taken in a case, which was tried in Scotland, and they held the acts of the procurator to be effectual to the public against the estate of the person, by whom the procuratory was granted." He states, in his note, the Scottish case, in the following words : " Pollock against Paterson. IChe case, in which this question occurred to be tried, was compromised (10th December, 1811, 16 Faculty Decis. 369) after the first decision given on the question. The opin- ions of the judges are peculiarly worthy of perusal ; not being confined to the narrow state of the question, as it occurred technically, but extending to a large and comprehensive discussion of the general question, as to the effect of insanity on such powers." In another note, he refers to the opinions of coun- sel taken in England, in these words : "After stating the terms of the procura- tion, and that after the insanity of the grantor, the procurator had continued to carry on the business of a banker for the principal, the question put was, ' Whether, in these circumstances, the transactions of Mr. John Paterson, under his father's procuration, are good to those, who transacted with him, from the date of it to the period of stopping.' The answer by Sir Vicary Gibbs (afterwards Lord Chief Justice of the common pleas). Sir Samuel Romilly, and Mr. Adam (now Lord Chief Commissioner of the Scottish jury court), was, 'We think they are good.'" Mr. Chancellor Kent, in his Com- mentaries, inclines to the same opinion. 2 Kent, Comm. Lect. 41, p. 645 (4th ed.) ; Smith on Merc. Law, p. 132 (3d ed. 1843) . In Wallis ». Manhattan Bank, 2 Hall, 495, it was held by the court, that the lunacy of a person, who has executed a power of attorney, does not operate to revoke it, at least, until the fact of his lunacy has been properly established by an inquisition. Would a deed or a sale, executed personally by a party manifestly insane at the time, be valid? If not, can his agent be in a better condition, if the agent is to execute the deed or do the act, in the name of his principal, and not in his own name ? But see Thomson on Bills, pp. 226, 227 (2d ed. 1836), cited at large ; Post, § 494, note. 612 AGENCY. [CH. XVIII. ruptcy ; ^ for the bankrupt thereby ceases to be the owner, and consequently is incapable of personally passing any title to it; and the act of his agent cannot have any higher validity." But, as to other rights and property which do not pass by the bank- ruptcy, but remain personally in the bankrupt (as, for example, the rights and property which he holds as trustee or as guardian or as executor), the authority of his agent will not be suspended or revoked by his bankruptcy.^ So, if he has before his bank- ruptcy executed a bill of sale of a ship, and given a letter of attorney to sign an indorsement on the certificate of registry, in compliance with law, to make the sale complete, the power is not revoked by his bankruptcy ; for it is but a formal act, which a court of equity would compel him to execute.* § 483. And here, again, the same exception exists in relation to mere cases of incapacity which has been- already suggested in relation to the right of revocation by the principal.^ The doc- trine does not apply to the case of an authority coupled with an interest ; for that may still be executed, notwithstanding the marriage or insanity or bankruptcy of the principal, for the plain reason, that it need not be executed in the name of the principal; but it will be valid, if executed in the name of the agent.^ There- ' See Ogden v. Gillingham, Baldwin, 38. ^ 2 Kent, Comm. Lect. 41, p. 644 (4th ed.) ; Minett v. Forrester, 4 Taunt. 641 ; 1 Bell, Comm. § 413 (4tli ed.) ; Id. pp. 488-490 (5th ed.) ; Ante, §§ 349, 408 ; 2 Liverm. on Agency, 307 (ed. 1818) ; Paley on Agency, by Lloyd, 187 ; 3 Ohitty on Com. & Manuf. 223, 224 ; Story on Bailm. § 211 ; Parker v. Smith, 16 East, 382. In this last case. Lord Ellenborough held : " Ajid, inasmuch as the bankrupt was not competent, after his bankruptcy, to pay or apply this fiind 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 the original and principal .authority of the party himself; which cannot be. The consequence is, that the authority of the agent, the broker's, was virtually countermanded and extinct by that act of bankruptcy, by which the bankrupt's own original power over the subject-matter ceased, and became transferred to others." 3 3 Chitty on Com. & Manuf. 223 ; Dixon v. Bwart, 3 Meriv. 822 ; Smith on Merc. Law, 72 (2d ed.) ; Id. B. 1, ch. 6, §§ 131, 182 (Sd ed. 1843) ; Post, § 486. • Dixon V. Ewart, 8 Meriv. 822 ; Paley on Agency, by Lloyd, 187, 188. ^ Ante, § 477. " 2 Liverm. on Agency, 807 (ed. 1818) ; Alley v. Hotson, 4 Campb. 325 ; 1 Bell, Comm. § 413 (4th ed.) ; Id. pp. 488-490 (6th ed.) ; Paley on Agency, by Lloyd, 187, 188 ; Ante, § 477. §§ 482-484.] DISSOLUTION of agency. 6l3 fore, where a factor has possession of the goods of his principal, with a power to sell, and has made advances on the consignment, he is still entitled to sell, for his indemnification, to the extent of such advances, notwithstanding the bankruptcy of his principal.^ § 484. Principles very similar are adopted in the jurisprudence of foreign countries. Thus, Pothier lays it down that an au- thority ceases by the change of condition of the principal. As, if a creditor is a woman, who afterwards marries, her authority, previously given to an agent to receive money for her, is revoked by her change of condition ; and payment to him, if the debtor knows of the marriage, will be invalid.^ So, a power given by a person having a quality or character to receive for the creditor, expires when that quality or character ceases. Thus, if the tutor of a minor gives a power to receive a debt due to the minor, the debtor cannot safely pay, upon the authority of the power, after the minority has expired ; because the quality or character of the tutor, who gave the authority, having ceased, a payment to him- self would be void and inetfectual.^ This results from the maxim of the Roman law : " Quod jussu alterius solvitur, pro eo est, quasi ipsi solutum esset ; * since the maxim tacitly involves the converse proposition, that, where payment is made to a person having no authority to receive it, it is no payment to the creditor. So, if a person who has given an authority becomes incapable, by a change of his condition, as if he is interdicted from acting for himself, and is placed under the guardianship of a curator, the authority is revoked.^ ' 1 Bell, Comm. § 413 (4th ed.) ; Id. pp. 488-490 (5th ed.). Mr. Bell insists upon other exceptions, which, perhaps, may fall within the same reason. He says, " Express or tacit revocation, by act of the principal, or by death, bankruptcy, or insanity, will have no eflfect, either to deprive the factor of the benefit of his authority, in' extricating himself from transactions already begun, or from the consequences of his having acted ; or to deprive others, who have relied on his powers, of the benefit of the transactions, on which they have previously entered with him ; or even to disturb transactions entered into, while he still appeared to hold his authority undiminished." Id. p. 489 (5th ed.). See also Ersk. Inst. B. 3, tit. 3, § 40 ; Ante, § 466. ' Pothier on Oblig. by Evans, n. 475 (n. 611 of the French edition) ; Pothier, de Mandat, n. 111. ' Post, § 600. ' Pothier on Oblig. by Evans, n. 476 (n. 512 of the French edition) ; Dig. Lib. 50, tit. 17, 1. 180 ; Pothier, de Mandat, n. 112. » Pothier, de Mandat, n. 111. 614 AGENCY. [CH. XTIII. § 485. In the next place, as to the incapacity of the agent. Here the same rule does not reciprocally apply in its full extent ; for, although an agent may be incapacitated to act for himself^ he is not, in all cases necessarily incapacitated to act for another. Thus, for example, although an infant cannot act for himself, he may, nevertheless, be the agent of another person. ^ So, a mar- ried woman, at least, unless she is prohibited by her husband, may also be the agent of another person .^ And if she is appointed an agent before marriage, the marriage does not, fer se, neces- sarily operate as a revocation of her agency ;. since there is, or may be, nothing in the marriage incompatible with her executing an authority or an agency. A fortiori, where her agency is coupled with an interest, it is not only not revoked by her mar- riage, but it is irrevocable ; for the husband and wife have an interest in its execution.^ § 486. Tlie case of the' bankruptcy of the agent is, in some respects, governed by the same rule. It does not necessarily suspend or revoke the power of the bankrupt to act as an agent for another, by doing a formal act, which passes no interest ;, such, for example, as executing a deed in the name of another.* Neither does it prevent him from doing an act as principal, where it is the mere execution of an existing trust, which he might be compelled to execute.^ Neither will it affect his right as a factor,, with the consent of his assignees, to enforce his lien for commis-i sions and advances, or for a general balance due to him from his principal, upon the goods of the latter, or the proceeds thereof, against the purchaser of the goods.^ But it is said, that it will amount to a revocation of his authority to receive any money from the purchaser, or from other persons, upon the account of his principal.^ By the foreign law, also, the bankruptcy of the > Ante, § 7 ; Thomson on Bills of Exchange, p. 220 (2d ed. 1836). ' Ante, § 7. Query, whether the prohibition of the husband would, in all cases, incapacitate the wife to do a mere ministerial act for another, as his agent, involving no labor or duty inconsistent with her duty to her family, as, for example, to deliver a deed ? ' Anon. 1 Salk. 117; Reignolds v. Davis, 12 Mod. 383; Harder u. Lee, 3 Burr. 1469, 1471. * 2 Kent, Comm. Lect. 41, pp. 644, 645 C4th ed.) ; Dixon v. Ewart, 3Meriv. 322 ; Ante, §§ 477, 482. » Dixon V. Ewart, 3 Meriv. 322 ; Ante, § 482. « Hudson V. Granger, 6 B. & Aid. 27, 31, 32. ' Hudson V. Granger, 6 B. & Aid. 27, 31, 32; 2 Kent, Comm. Lect. 41, §§ 485-488.] DISSOLUTION of agency. 615 agent operates as a revocation of his authority, for the satisfac- tory reason, that it is presumed that the confidence of the prin- cipal in him is thereby destroyed.^ § 487. The case of the insanity of the agent would seem to constitute a natural, nay, a necessary, revocation of his authority ; for the principal cannot be presumed to intend, that acts done for him and to bind him, shall be done by one who is incom- petent to understand, or to transact, the business which he is employed to execute. The exercise of sound judgment and dis- cretion would seem to be required, in all such cases, as pre- liminaries to the due execution of the authority. § 488. Fifthly. A revocation may be, by operation of law, by the death either of the principal or of the agent. Tliis is an ancient and well-settled doctrine of the common law.^ It will p. 645 (4th ed.) ; Story on Bailm. § 211. [*If the assignees in insolvency of an agent who has sold merchandise for another in his own name, on credit, know that the principal claims the debts, and nevertheless proceed to collect them, they are not entitled to retain compensation for their own services, or for expenses incurred in good faith in making the collection. Audenried v. Betteley, SAUen, 302.] ' Pothier, de Mandat, ii. 120; Story on Bailm. § 211. ' Littleton, § 66 ; Co. Litt. 52 ; Shipman v. Thompson, Willes, 104, 105 ; Wynne v. Thomas, Willes, 563, 665; Wallace v. Cooke, 5 Esp. 117, 118; Paley on Agency, by Lloyd, 185, 186 ; 2 Liverm. on Agency, 301-304 (ed. 1818) ; Smith on Merc. Law, 72 (2d ed.) ; Id. pp. 131, 132 (3d ed. 1843) ; Bac. Abridg. Authority, E ; 3 Chitty on Com. & Manuf. 223 ; 2 Kent, Comm. Lect. 41, pp. 646, 646 (4th ed.) ; Story on Bailm. §§ 203-205 ; Smout v. Ilbery, 10 Mees. & Wels. 1 ; Campanari v. Woodbum, 28 Eng. Law and Eq. 321 ; Wilson V. Edmonds, 4 Foster, 517 ; Blades v. Free, 9 B. & Cressw. 167 ; Gait V. Galloway, 4 Peters, 332, 344 ; Rigs v. Cage, 2 Humph. (Tenn.) 350 ; Scruggs V. Driver, 31 Ala. 274 ; Saltmarsh v. Smith, 32 Ala. 404 ; Harper v. Little, 2 Greenl. 14; Ante, §§ 264, 477 ; Gale v. Tappan, 12 N. H. 146; Houghtaling V. Marvin, 7 Barb. 412 ; Gleason v. Dodd, 4 Met. 333 ; Huston v. Cantril, 11 Leigh, 137. In Cassiday i>. McKensie, 4 Watts & Serg. 282 [approved in Carriger v. Whittington, 26 Mo. 313], the Supreme Court of Pennsylvania held, that a payment of money to an agent, after the death of his principal, the death being unknown to both parties, was good, and bound the estate of the principal. Mr. Justice Rogers, in delivering the opinion of the court, said, " But finally, it is contended, that a payment, after the death of the prin- cipal, is not good. It is conceded, that the death of the principal is, ipso facto, a revocation of a letter of attorney. But does it avoid all acts of the attorney, intermediate between the death of the principal and notice of it? .In Salte v. Field, 6 T. R. .214, Mr. Justice BuUer observes : ' It has been questioned, with respect to an agent acting under a power of attorney, whether acts, done by 616 AGENCY. [CH. XVIII. make no difference, that the power is declared in express terms to be irrevocable ; for, if it be not coupled with an interest, although irrevocable by the party, it is revoked by his death.^ him, before he knows of the revocation of his warrant, are good against the principal*; and it seems, that the principal, in such a case, could not avoid the acts of his agents, done bond fide, if they were to his disadvantage, though he might consent to avoid such as were for his benefit.' And in Hazard v. Tread- well (Str. 606 ; 12 Mod. 346), it is ruled, that the credit, arising from an osten- sible employment, continues, at least with regard to those, who have been accustoined to deal on the faith of that employment, until they have notice of its being at an end, or till its termination is notorious. And these are principles, founded on the most obvious justice. Thus, if a man is the notorious agent for another, to collect debts, it is but reasonable, that debtors should be protected in payments to the agent, until they are informed that the agency has terminated. But this, it is said, is only true of an agency terminated by express revocation, and does not hold of an implied revocation by the death of the principal. It would puzzle the most acute man to give any reason, why it should be a mis- payment, when revoked by death, and a good payment, when expressly revoked by the party in his lifetime. In Watson v. King, 4 Campb. 272, however, it is ruled, ' that a power of attorney, though coupled with an interest, is instantly revoked by the death of the grantor ; and an act, afterwards, bona fide done under it by the grantee, before notice of the death of the grantor, is a nullity. Lord Ellenborough says, a power, coupled with an interest, cannot be revoked by the person granting it ; but it is necessarily revoked by his death. How can a valid act be done in the name of a dead man P ' It will be observed, that the reason is purely technical. How can a valid act be done in the name of a dead man ? And it might with as much propriety be asked. How can a valid act be done by an agent, whose authority is revoked by his principal ? But, notwith- standing the opinion thus confidently expressed, it is now an admitted exception, that, where the power or authority is coupled with an interest in the thing actu- ally vested in the agent, then an act, done by him after the death of his princi- pal, is good. And the reason given by Chief Justice Marshall, in Hunt v. Eousmanier's AdmV (8 Wheat. 174), is, that the agent, having the legal title in the property, is capable of transferring it in his own name, notwithstanding ' Mitchell !>. Eades, Free. A. 126 ; Lepard v. Vernon, 2 Ves. & Beam. 61 ; Watson V. King, 4 Campb. 272 ; s. c. 1 Starkie, 121 ; Wilson v. Edmonds, 4 Foster, 617 ; Primm v. Stewart, 7 Texas, 178 ; Houston v. Robertson, 6 Taunt. 448 ; Hunt u. Kousmanier's Adm'r, 8 Wheat. 174, 201-203, 206, 207 ; Ante, § 477. [* Lewis v. Kerr, 17 Iowa, 73. Where an agent of a firm, authorized to draw its moneys from the bank, and apply the same to the uses of the firm, continues to do so after the death of one of the members thereof, with- out knowledge on his part or on the part of the bank, of such death, he acts within the scope of his authority, and his acts bind the firm. The authority of such agent continues in qualified form after the death of one of the members of such firm. Bank of New York v. Vanderhorst, 32 N. Y. 663.] § 488.] DISSOLUTIOK OF AGENCY. 617 The doctrine seems to be a natural deduction or presumption of the actual intention of the parties. But it has this additional reason to support it, that, as the act must, if done at all, be done the death of the principal ; and the death of the principal has no operation upon his act. The power, given by the principal, is, under such circumstances, rather an assent or agreement, that the agent may transfer the property vested in him, free from all equities of the principal, than strictly a power to transfer. The whole reasoning of the court, in Hunt v. Rousmanier's Adm'r, shows their anxiety, to rid themselves of the absurdity, into which a strict adherence to the principle, that death is a revocation of a power, would lead them. Why not place it on the rational ground, that, although the conveyance would be bad at law, yet it would be good in equity, when made bojid fide without any notice whatever of the death of the principal? But, be this as it may, the principle does not apply here. There is no act to be done. This money has been paid by the debtor, and received by the agent, in good faith ; and why should it not be good, when the authority is revoked by death, as it confessedly is, when expressly revoked by the principal in his lifetime ? Here the precise point is, whether a payment to an agent, when the parties are ignorant of the death, is a good payment. In addition to the case in Campbell, before cited, the same judge. Lord EUenborough, has decided, in 5 Esp. 117, the general question, that a payment, after the death of the principal, is not good. Thus, a payment of sailor's wages, to a person having a power of attorney to receive them, has been held void, when the principal was dead at the time of the payment. If, by this case, it is meant merely to decide the general proposition, that by operation of law, the death of the principal is a revocation of the powers of the attorney, no objection can be taken to it. But if it is intended to say, that this principle applies, where there was no notice of death, or opportunity of notice, I must be permitted to dissent from it. In addition, it is contrary to the opinion of Lord Loughborough in Tate v. Hilberts, 2 Ves., jr., where, on a question, whether a check, given by a dying person to a relation, but not presented in his lifetime, could be enforced, as donatio causa mortis, against the executor, he said, if the donee had received the money upon the check immediately after the death of the testator, and before the cashier was apprised of it, he was inclined to think no court would have taken it from him. And what would he have said, if the attempt had been made to subject the banker, when he was ignorant of the death? But, if this doctrine applies, why does it not apply to the case of factors, foreign or domestic, to commission merchants, to supercargoes, and masters of ships, and to various other agencies, which the necessities of commerce may require ? In the case of a foreign factor, for example, has it been supposed, that his acts, after this implied revocation of authority, are void ? Cases of this kind must often have occurred ; and it would astonish the mercantile world to be informed, that the factor was liable on a contract, made in the name of his principal, because he was dead, a fact of which he was ignorant, and of which he could not by any possibility be informed ; or that the merchant, who was trusting his goods on the credit of the principal, was to be cast on him, who may have been of doubtful solvency, for payment. Can it be, that a payment, made to an agent from a foreign country, and from 618 AGENCY. [CH. XTIII, in the name of the principal, it is impossible that it can properly be done, since a dead man can do no act ; and we have already seen that every authority, executed for another person, presup- poses that tlie party could, at the time, by his personal execution of it, have made the act valid.^ one of our cities to the Western states, employed for the special purpose of collecting debts, is void, because his principal may have died the very day before the actual receipt of the money ? That a payment may be good to-day,. or bad to-morrow, from the accidental circumstance of the death of the principal, - which he did not know, and which by no possibility he could know ? It would be unjust to the agent and unjust to the debtor. In the civil law, the acts of the agent, done bond fide in ignorance of the death of his principal, are held valid and binding upon the heirs of the latter. The same rule holds in the Scottish law ; and I cannot believe the common law is so unreasonable, nothwithstanding the doubts expressed by Chancellor Kent, in the 2d volume of his Commentaries, p. 646." ' Ante, §§ 147, 148, 264 ; Coombes's case, 9 Co. 76, 77 ; Hunt v. Kousmanier's Adm'r, 8 Wheat. 174, 200-205 ; Clarke b. Courtney, 5 Peters, 319, 849-361. This subject is very amply illustrated in the opinion of the Supreme Court of the United States, delivered by Mr. Chief Justice Marshall, in Hunt v. Kous- manier's Adm'r, 8 Wheat. 291. Among other things he says, "This instru- ment contains no words of conveyance, or of assignment, but is a simple power to sell and convey. As the power of one man to act for another depends on the will and license of that other, the power ceases when the will or this permission is withdrawn. The general rule, therefore, is, that a letter of attorney may, at any time, be revoked by the party who makes it, and is revoked by his death. But this general rule, which results from the nature of the act, has sustained some modification. Where a letter of attorney forms a part of a contract, and is a security for money, or for the performance of any act which is deemed valu- able, it is generally made irrevocable in terms, or, if not so, is deemed irrevo- cable in law. Although a letter of attorney depends, from its nature, on the will of the person making it, and may, in general, be recalled at his will, yet, if he binds himself for a consideration, in terms or by the nature of his contract, not to change his will, the law will not permit him to change it. Rousmanier, there- fore, could not, during his life, by any act of his own, have revoked this letter of attorney. But does it retain its efficacy after his death ? We think it does not. We think it well settled, that a power of attorney, though irrevocable during the life of the party, becomes extinct by his death. This principle is asserted in Littleton, § 66, by Lord Coke, in his Commentary on that section (62 b.), and in Willes's Reports (105, note, and 665). The legal reason of the rule is a plain one. It seems founded on the presumption, that the substitute acts by virtue of the authority of his principal, existing at the time the. act is performed ; and on the manner in which he must execute his authority, as stated in Coombes's case. In that case it was resolved, that ' When any one has authority, as attorney, to do any act, he ought to do it in his name who gave the authority.' The reason of this resolution is obvious. The title can regularly pass out of the person in §§488,489.] DISSOLUTION OP AGENCY. 619 § 489. The only admitted exception in our law, if, indeed, that properly constitutes an exception, is the case, where the power or authority is coupled with an interest in the thing, actually vested in the agent.^ The reason of this exception is entirely compatible with the general ground upon which the rule is founded. It is, that the agent having the legal title to the property vested in himself, is capable of transferring it in his own name, notwith- standing the death of the principal ; and the death of the prin- whom it is vested, only by a conveyance in his own name ; and this cannot be executed by another for him, when it could not, in law, be executed by himself. A conveyance in the name of a person, who was dead at the time, would be a manifest absurdity. This general doctrine, that a power must be executed in the name of the person who gives it, a doctrine founded on the nature of the transaction, is most usually engrafted in the power itself. Its usual language is, that the substitute shall do that which he is empowered to do in the name of his principal. He is put in the place and stead of his principal, and is to act in his name. This accustomed form is observed in the instrument under consid- eration. Hunt is constituted the attorney, and is authorized to make and exe- cute a regular bill of sale in the name of Rousmanier. Now, as an authority must be pursued in order to make the act Of the substitute the act of the princi- pal, it is necessary that this bill of sale should be in the name of Rousmanier ; and it would be a gross absurdity, that a deed should purport to be executed by him, even by attorney, after his death ; for the attorney is in the place of the principal capable of doing that alone which the principal might do." Pothier puts the doctrine upon analogous reasoning; of a similar, though perhaps of a less technical nature. The principle (says he) is drawn from the nature of the contract of mandate. The principal (le mandat), by his contract, charges the agent to do something in his place or stead ; mce versa the agent (le mandataire), in executing the mandate, lends his agency (ministre) to the principal, who is deemed to do, by the agency of his agent, what is intended by the mandate. Now, the agent cannot any further lend his agency to a principal who is dead, and therefore he cannot further execute the mandate after the death of the principal. Pothier, de Mandat, n. 103. [* Death of the employer excuses further performance of his contract to employ another as clerk in his business for a stipulated time, and his representatives are not liable to such clerk. Yerrington v. Greene, 7 R. I. 689 ; cases fully cited in the argument.] ' Hunt V. Rousmanier's Adm'r, 8 Wheat. 174, 201-206 ; 2 Kent, Comm. Lect. 41, pp. 645, 646 (4th ed.) ; Shipman v. Thompson, Willes, 104, note (a) ; Story on Bailm. § 209; Ante, §§ 164, 477, 478; Michigan Ins. Co. v. Leaven- worth, 30 Verm. 11 ; Marzion v. Pioche, 8 California, 522. [* Mere advances made by a factor, whether at the time of his employment as such, or subse- quently, cannpt have the effect of altering the revocable nature of an authority to sell, unless such advances are accompanied by, and made the consideration for, an agreement that the authority shall not be revocable. Esteban de Comas V. Prost, 11 Jur. N. S. 417.] 620 AGENCY. [CH. xvin. pal, therefore, has no operation upon his act. The power, given by the principal, is, under such circumstances, rather an assent or agreement that the agent may transfer the property vested in him, free from any equities of the principal, than strictly a power to transfer.^ ' Mr. Chief Justice Marshall, in Hunt v. Rousmanier's Adm'r, 8 Wheat. 174, stated the grounds of this distinction very fully: " The interest or title in the thing being vested in the person who gives the power, remains in him, unless it be conveyed with the power, and can pass out of him only by a regular act in his own name. The act of the substitute, therefore, which in such a case is the act of the principal, to be legally effectual, must be in his name, must be such an act as the principal himself would be capable of performing, and which would be valid if performed by him. Such a power necessarily ceases with the life of the person making it. But if the interest or estate passes with the power, and vests in the person by whom the power is to be exercised, such pel'son acts in his own name. The estate, being in him, passes from him by a conveyance in his own name. Pie is no longer a substitute, acting in the place and name of an- other, but is a principal, acting in his own name, in pursuance of powers, which limit his estate. The legal reason, which limits a power to the life of the per- son giving it, exists no longer, and the rule ceases with the reason on which it is founded. The intention of the instrument may be eflfected without violating any legal principle. This idea may be in some degree illustrated by examples of cases, in which the law is clear, and which are incompatible with any other ex- position of the term ' power coupled with an interest.' If the word ' interest,' thus used, indicated a title to the 'proceeds of the sale, and not a title to the thing to be sold, then a power to A., to sell for his ovm benefit, would be a power coupled with an interest ; but a power to A., to sell for the benefit of B., would be a naked power, which could be executed only in the life of the person who gave it. Yet for this distinction no legal reason can be assigned. Nor is there any reason for it. in justice ; for a power to A., to sell for the benefit of B., may be as much a part of the contract, on which B. advances his money, as if the power had been made to himself. If this were the true exposition of the term, then a power to A. to sell for the use of B. , inserted in a conveyance to A. of the thing to be sold, would not be a power coupled with an interest, and, conse- quently, could not be exercised after the death of the person making it ; while a power to A., to sell and pay a debt to himself, though not accompanied with any conveyance, which might vest the title in him, would enable him to make the con- veyance, and to pass a title not in him, even after the vivifying principle of the power had become extinct. But every day's experience teaches us, that the law is not, as the first case put would suppose. We know, that a power to sell for the benefit of B., engrafted on an estate conveyed to A., may be exercised at any time, and is not affected by the death of the person who created it. It is, then, a power coupled with an interest, although the person, .to whom it is given, has no interest in its exercise. His power is coupled with an interest in the thing, which enables him to execute it in his own name, and is, there- fore, not dependent on the life of the person who created it. The general rule. §§ 489-490.] DISSOLUTION of agency. 621 [489 a. A recent case furnishes an illustration of this prin- ciple. A person, going abroad on account of ill health, employed an agent to carry on his business, with complete possession and control of his property, with a written power to sell all or any of the furniture, stock, and property at any time in bis hands, and to apply the proceeds to the security or payment of a specified note, indorsed by such agent and a third person, or of any other note given in renewal of the same, or for which the agent might become responsible. It was held, that the possession of the property being connected with the power for the protection and indemnity of the agent, as well as for other purposes, the agent had a power coupled with an interest, which survived after the death of the principal abroad, and authorized the agent to sell the property for his protection and indemnity, after such death.i] § 490. The same principle applies, a fortiori, to the death of the agent ; for it then becomes practically impossible for him to execute the power, either in his own name, or in the name of his principal. But a further reason exists why it should not be exe- cuted by his personal representatives ; and that is, that the prin- cipal must be presumed to have placed a confidence and trust in the personal character and skill of his agent, which might not equally extend to his representatives .^ The same reasoning will apply to the case of a substitute, who is appointed by the agent under a power of substitution. The death of the agent extin- that a power of attorney, though irrevocable by the party during his life, is extinguished by his death, is not affected by the circumstance, that testamentary powers are executed after the death of the testator. The law, in allowing a testamentary disposition of property, not only permits a will to be considered as a conveyance, but gives it an operation, which is not allowed to deeds, which have their effect during the life of the person who executes them. An estate, given by will, may take effect at a future time, or on a future contingency, and in the mean time descends to the heir. The power is, necessarily, to be executed after the death of the person, who makes it, and cannot exist during his life. It is the intention, that it shall be executed after his death. The conveyance, made by the person to whom it is given, takes effect by virtue of the will, and the purchaser holds his tijtle under it. Every case of a power, given in a will, is considered in a court of chancery as a trust for the benefit of the person for whose use the power is made, and as a devise or bequest to that person." ' Knapp V. Alvord, 10 Paige, 206. ' Pothier, de Mandat, n. 101. See Merrick's estate, 8 Watts & Serg. 402 ; Gage V. AUison, 1 Brevard, 496 ; City Council v. Duncan, 3 id. 386. 622 AGENCT. [CH. XVIII. guishes the power of the substitute ; for the agent is accountable to the principal for the acts of his substitute, since he is ap- pointed by, and in place of, the agent; and the appointment is, therefore, naturally withdrawn by the death of the appointer.^ But a distinction may well exist in this matter, where the substi- tute is to be treated as the sole agent of the principal ; as, if the power be to the agent, and if he cannot or will not act, then that he may appoint another to act as the agent of the principal, and not as a substitute under himself.^ For, in this latter case, the death of the agent will not revoke the appointment made by him of the sub-agent.^ § 491. These doctrines are not peculiar to our law. In the Roman law the rule was fully recognized, that a mere power or authority expired by the death either of the principal, or of the agent. " Mandatum, re Integra, Domini morte finitur.* Inter casus omittendi mandati etiam mors mandatoris est ; nam man- datum solvitur morte.^ Morte quoque ejus, cui mandatum est, si is integro adhuc mandato decesserit, solvitur mandatum." ^ But there was this qualification of the doctrine in the Roman law, that, if the business was in part executed by the agent, at the time of the death of the agent (but not otherwise), the remainder might be executed by his heir, who succeeded to the authority.'' ' Pothier, de Mandat, n. 106 ; 2 Liverm. on Agency, 308 (ed. 1818) ; Ante, §469. 2 Ante, § 469. ^ Pothier, de Mandat, n. 105 ; Smith v. White, 5 Dana, 376 ; Story on Bailm. § 20. * Cod. Lib. 4, tit. 35, 1. 15 ; Pothier, Pand. Lib. 17, tit. 1, n. 76 ; Pothier, de Mandat, n. 103 ; 1 Domat, B. 1, tit. 15, § 4, art. 6. * Dig. Lib. 17, tit. 1, 1. 26, Introd. ; Pothier, Pand. Lib. 17, tit. 1, n. 76. « Dig. Lib. 17, tit. 1, 1. 27, § 3 ; Pothier, Pand. Lib. 17, tit. 1, n. 75. ' Pothier, Pand. Lib. 17, tit. 1, n. 75 ; 2 Liverm. on Agency, 304, 305 (ed. 1818) ; Pothier, de Mandat, n. 101 ; 1 Domat, B. 1, tit. 16, § 4, art. 7. This distinction in the Koman law between cases, where the mandate is wholly un- executed, and where it is partly executed, as to the validity of the subsequent acts of the agent or of his representatives, does not. seem founded in any very satisfactory reasoning. Domat has stated it (1 Domat, B. 1, tit. 16, § 4, arts. 7 and 8), and has added the following very sensible questions: "But, if a proxy, or other agent, were charged with an affair, which could not admit of delay, such as the care of gathering in a harvest, or any other pressing and important affair, and, just as he is going to execute the order, or after he has already begun it, he learns the death of the person, from whom he received his order, and he cannot give notice of it to the heirs or executors, who happen to §§ 490, 491.] DISSOLUTION OP AGENCY. 623 This was expressly laid down in the case of a deceased partner, where the heir was held to be authorized to complete the exe- cution of the inchoate act of the deceased partner. " Haeres socii, quamvis socius non est, tamen ea, quae per defunctum inchoata sunt, per haeredem explicari debent." ^ So, the acts of the agent, done bond fide, in ignorance of the death of his principal, were held valid aiid binding upon the heirs of the latter.^ " Si tamen per ignorantiam impletum est, competere actionem utilitatis causa- dicitur. Julianus quoque scripsit, morte solvi mandatum, sed obligationem aliquando durare.^ Si quis debitori suo man- daverit, ut Titio solveret, et debitor, mortuo eo, cum id ignoraret, solverit, liberari eum oportet." * Hence Paulus declared : " Man- datum morte mandatoris, non etiam mandati actio solvitur." * A fortiori, the same rule was applied, where the authority was not to be executed until after the death of the principal.^ " Idem est, et si mandavi tibi, ut post mortem meam haeredibus meis emeres fundum."^ be absent, may not he, and even ought not he, to execute the order ? " And again: "But, if the heir, or executor, of the proxy, knowing the order, that was given him, and seeing, that the absent master could not look after his own affairs, and that there would be danger of some loss, if he did not take care of it ; would not he be obliged to do what were in his power, such as to continue to till the land, or to gather in the harvest ? " See also Story on BaUm. §§ 202, 204. ' Dig. Lib. 17, tit. 2, 1. 40 ; Pothier, Pand. Lib. 17, tit. 2, n. 59 ; Pothier, de Mandat, n. 101 ; 1 Domat, B. 1, tit. 15, § 4, arts. 7, 8. ^ 1 Domat, B. 1, tit. 16, § 4, arts. 7, 8. = Dig. Lib. 17, tit. 1, 1. 26, Introd. ; Pothier, Pand. Lib. 17, tit. 1. n. 77. " Dig. Lib. 17, tit. 1, 1. 26, § 1 ; Pothier, Pand. Lib. 17, tit. 1, n. 77 ; Pothier, de Mandat, n. 106. " Dig. Lib. 17, tit. 1, 1. 58, Introd. ; Pothier, Pand. Lib. 17, tit. 1, n. 77 ; Dig. Lib. 46, tit. 3, 1. 32. « Dig. Lib. 17, tit. 1, 1. 12, § 17; Id. 1. 13; Pothier, Pand. Lib. 17, tit. 1, n. 78. ' Dig. Lib. 17, tit. 1, 1. 13 ; Pothier, Pand. Lib. 17, tit. 1, n. 78 ; 2 Liverm. on Agency, 306, 306 (ed. 1818) . The same doctrine is still more succinctly expressed in the Institutes. " Item, si adhuc integro mandato, mors alterutrius Interveniat, id est, vel ejus, qui mandaverit, vel illius, qui mandatum susceperit, solvitur mandatum. Sed utilitatis causa receptum est, si eo mortuo, qui tibi mandaverat, tu, ignorans eum decessisse, executus fueris mandatum, posse te agere mandati actione ; alioqui justa et probabilis ignorantia tibi damnum adfer- ret. Et huic simile est, quod placuit, si debitores, manumisso dispensatore Titii, per ignorantiam liberto solverint, liberari eos ; cum alipqui striota juris ratione non possent liberari; quia alii solvissent, quam cui solvere debuerint." Inst. Lib. 3, tit. 27, § 10. 624 AGENCY. [oh. XVIII. § 492. From the Roman law, similar principles have been im- ported into the commercial jurisprudence of the modern nations of continental Europe. Pothier says, " The mandate is extin- guished by the natural or civil death of the principal (or man- dant), when it happens, before the agent (or mandatary) has executed it. For example, if I have authorized you to purchase a certain thing for me, the power, -which I have given you, ceases with my death, and my heirs are not obliged to take, on their own account, the purchase made by you after my death." ^ " But (he adds) although the mandate is thus extinguished by the death of the principal, nevertheless, if the agent, being ignorant of the death of the principal, has in good faith transacted the business, with which he was charged, the heirs and other repre- sentatives of the principal are bound to indemnify him, and to ratify what he has done." ^ Again, he says, " Nevertheless, there are cases, in which the agent, although he has knowledge of the death of his principal, not only may, but ought to, act in the business intrusted to him. As, for example, if one is charged with gathering the vintage of another, and hears of the death of his principal at the very time, when the vintage cannot properly be deferred, as the grapes of the country are then fit to be gath- ered, and there is not time to advise his heirs thereof, who live at a distance, there it will be the duty of the agent to gather the vintage, notwithstanding such death." ^ So, if the act, required to be done, is to be done after the death of the principal, the same rule will apply.* § 493. Pothier adds another most important exception to the rule, as applicable to the business of commerce. Although, (says he), regularly, every mandate ends with the death of the person giving it, yet it has, for the benefit of commerce, been established, that the commission of these agents (or mandataries) shall last even after the death of the merchant, who appointed them, until it is revoked by the heir, or other successor. And, in contracting for the business, to which they are appointed, they bind the heir of the merchant who appointed them, or the vacant possession if he has left no heir. ^ ' Pothier, de Mandat, n. 103. " Pothier, de Mandat, n. 106 ; Pothier on Oblig. by Evans, n. 81, 448, 475 ; Id. French ed., n. 81, 449, 511. " Pothier, de Mandat, n. 107. ■» Pothier, de Mandat, a. 108. ° Pothier on Oblig. by Evans, n. 448 ; Id. n. 80, 475 ; Id. French ed. u. 81, §§ 492-494.J DISSOLUTION op agency. 625 § 494. Similar principles will be found adopted into the juris- prudence of Scotland. Thus, it is laid down by Erskine, in his Institutes, that mandates expire by the death of the mandant 449, 511 ; Pothier, de Mandat, n. 109. See also Emerig. sur Assur. torn. 2, p. 120. Other illustrations will be found in Mr. Cushing's very valuable transla- tion of Pothier on the Contract of Sale, n. 32. Pothier there says, " In this contract, as in others, the consent of the parties may be manifested, not only between. those who are present together, but also between those who are at a distance from each other, by means of letters, or through the intervention of an agent per epistolam, aut per nuntium. In order that the consent of the parties may take place in the last-mentioned case, it is necessary, that the will of the party, who makes a proposition in writing, should continue until his letter reaches the other party, and until the other party declares his acceptance of the proposition. This will is presumed to continue, if nothing appears to the contrary. But, if I write a letter to a merchant living at a dis- tance, and therein propose to him to sell me a certain quantity of merchandise, for a certain price ; and, before my letter has time' to reach him, I write a second, informing him, that I no longer wish to make the bargain ; or if I die, or lose the use of my reason ; although the merchant, on the receipt of my letter, being in ignorance of my change of wiU, or of my death, or insanity, makes answer that he accepts the proposed bargain ; yet there ' wiU be no con- tract of sale between us ; for, as my will does not continue until his receipt of my letter, and his acceptance of the proposition contained in it, there is not that consent or concurrence of our wills, which is necessary to constitute the con- tract of sale. This is the opinion of Bartholus, and the other jurists, cited by Bruneman, ad. 1. 1, § 2, D. de contrah. empt. (Dig. Lib. 18, tit. 1, b. 1, § 2), who very properly rejected the contrary opinion of the Gloss, ad dictam legem. It must be observed, however, that if my letter causes the merchant to be at any expense, in proceeding to execute the contract proposed ; or, if it occasions him any loss, as, for example, if, in the intermediate time between the receipt of my first and that of my second letter, the price of that particular kind of merchandise falls, and my first letter deprives him of an opportunity to sell it before the fall of the price ; in all these cases, I am bound to indemnify him, unless I prefer to agree to the bargain, as proposed by my first letter. This obligation results from that rule of equity, that no person should suffer from the act of another ; Nemo ex alterius facto prsegravari debet. I ought, there- fore, to indemnify him for the expense and loss, which I occasion him by making a proposition, which I afterwards refuse to execute. For the same reason, if the merchant, on the receipt of my first letter, and before receiving the second, which contains a revocation of it, or being in ignorance of my in- sanity or death, which prevents the conclusion of the bargain, charges to my account and forwards the merchandise; though, in that case, there cannot properly be a contract of sale between us, yet he wiU have a right to compel me or my heirs to execute the proposed contract, not in virtue of any contract of sale, but of my obligation to indemnify him, which results from the rule of equity above mentioned." The decision of the Supreme Court of Massachu- setts, in McCulloch v. The Eagle Insurance Co., 1 Pick. 278, is in conformity 626 AGENCY. [CH, XTIII, (the principal), both because it is presumed that the commission was accepted from a personal regard to him, and because the will of the mandant, which alone supports the commission, ceases necessarily upon his death. They expire by the death of the mandatary (the agent), because the commission was given, from the mandant's special confidence in him.i But (he adds), if a mandatary, ignorant of the mandant's death, continue to execute the commission bond fide, what he doth under that ignorantia facti must be ratified by the mandant's heir ; for, till the mandatary knew of his employer's death, it was his duty to go on in the management. But if the mandatary, ignorant perhaps that mandates are vacated by the death of the mandant, shall, after his knowledge of it, proceed to execute a commission which he had accepted at the desire of the deceased, what he does cannot affect the mandant's heir ; for ignorance of law can give no man a right to manage the affairs of another, who had given him no commission. Yet this is to be understood, rebus integris. For if part of the. commission had been executed before the mandant's death, by which the management would suffer if the whole were not to be carried into immediate execution, the powers given by the mandate are not accounted to have expired, and the man- datary not only may, but ought to, continue his management.^ In the same manner, if the mandatary should die after having begun a course of management, which required to be carried on without delay, his heir may execute what was left unfinished by his ancestor .** 495. Reasonable as these doctrines seem, and convenient as they must be admitted to be for the practical purposes of trade and commerce, it has been thought that they do not prevail in the common law as recognized either in England or in America.* to this general doctrine. But the English decisions are to the contrary, holding that the offer by the maU is a continuing offer up to the time when the other party assents thereto, and then becomes obligatory on both parties. Adams V. Lindsell, 1 B. & Aid. 681; Long on Sales, by Rand (1839), pp. 182, 183. See also Pothier de Change, n. 179. [And such is now the well settled English and American law, on this subject.] > Ersk. Inst. B. 3, tit. 3, § 40; 2 Bell, Comm. § 413 (4th ed.) ; Id. p. 488- 490 (6th ed.). = Ante, §§ 465, 466, 483. " Ersk. Inst. B. 3, tit. 3, § 41 ; 2 Bell, Comm. § 413 (4th ed.) ; Id.' p. 488- 490 (5th ed.). * 2 Comm. Lect. 41, p. 646 (4th ed.). See also Story on Bailm. §§ 204, §§ 494, 495.] DISSOLUTION op agency. 627 But it may be doubted whether our law deserves such a reproach, at least tp the full extent in which it is usually imputed to it. Regularly indeed where the act to be done must be done in the 206 ; Ante, §§ 465, 466, 483. Mr. Thompson, on the subject of the limitation of the. agency, says, "Mandates terminate, in general, by the death of the mandant or mandatary ; by the insanity of the latter ; by revocation ; by re- nunciation ; or by the sequestration of the mandant, which vests his estate, and all the rights connected with it, in his creditors. The mandatary's bank- ruptcy does not appear to be inconsistent with the continuance of his mandate. But the rights of third parties are differently affected by its termination, from the cause now stated, according as they have, or have not, been led to believe in its continuance. Any person allowing another to exercise a general manage- ment of his affairs, whether by express or tacit mandate, contracts thereby an implied obligation to the public, that the mandate shall be held quoad him as continued, until its termination becomes notorious, or has been made known to the party contracting. In this view, as the mandant's death and bankruptcy are notorious events, the presumption is, that every person is aware of them ; and, therefore, contracts made subsequently with the mandatary, or acts per- formed by him, will not be valid, unless it is proved by the parties making them that these events were unknown to the mandatary or the contracting party, and could not have been known by ordinary diligence. Further, if a factor has advanced money before his constituent's death or bankruptcy, on the faith of goods consigned to him, he will be entitled, even after these events, to sell the goods for his indemnification. Such advances change the contract from mandate to loan and security. But, on the principles which have been now mentioned, there is no ground to presume that the revocation or renunciation of a general mandate (neither of them being notorious) are known to third parties ; and, therefore, the contracts of such parties with a general agent will be effectual, unless it is proved that they knew, or ought to have known, of the renunciation or recall. For instance, a servant, who had power to draw bills in his master's name, may bind him by bills so drawn after his dismissal, if the party taking them had not time to know of it. The kind of intimation which is necessary to exclude this risk, shall be afterwards considered with reference to the dissolution of partnership. In the event of the mandant's supervening insanity, which is not in itself notorious, it seems to follow, from the mandant's implied contract with the public, that transactions, made even after it, with the mandatary, shall stand, unless with reference to parties who knew of the insanity. Such parties cannot be said to be hona fide to contract ; or rather, it may be held, that, with regard to them (as they cannot plead want of notice) the mandant's .known insanity annulled the mandatary's powers. The same rule, under the same limitations, appears to hold with regard to all mandates, which, however limited in their terms, are acted on before the public as general mandates, the public being entitled to rely on them as general mandates till their termination is made known. It has been said that limited mandates (which expire, in general, from the causes already mentioned, or by performance of the business for which they were granted) ' are not, like general powers, capable of extension by mere inference and hona fides.'' But the man- 628 AGENCY. [CH. XTIII. name of the principal, and not in that of the agent, the authority is extinguished by the death of the principal, because it has then become incapable of being so executed.^ And it should seem that this would be equally true in the Roman law, and in the jurisprudence of continental Europe, under the like circum- stances. The difference on this subject between our law and the latter seems to rest, not so much upon a difference of prin- ciple, as upon the difference in the modes of executing the authority. Under the Roman law, the agent ordinarily executed his authority in his own name, and thereby bound his principal, indirectly, by his contract, ex mandato, and himself personally .^ An execution of the authority in the name of his principal was not generally allowed or required. In the jurisprudence of modern continental Europe, the rule of the Roman law would seem still to exist, so far that the agent may bind the principal by the act done in his (the agent's) own name, ex mandato; although he is also at liberty to do the act in the name of his principal, in which latter case he may escape from any personal responsibility.^ This is certainly the doctrine in Scotland.* Where the act, notwithstanding the death of the principal, can and may be done in the name of the agent, there seems to be a sound reason why his death should not be deemed to be a positive revocation under all circumstances, and that a subse- quent execution of it may be valid. [And this principle has recently been adopted in the American law. Thus, where A. had, by letter, requested and authorized B. to make sale of a tract of wild land for him, and B., ih accordance with the request and authority as expressed by the letter, made a contract of sale dant, by suffering such a mandatary to act, enters into the same implied con- tract -with the public as in a general mandate : namely, that the mandate shall continue till its termination is made known ; and, therefore, though it be re- called, or have ceased, all facts falling within the scope of it will be good, as to third parties, unless its revocation is notorious or has been intimated to them. The case of a limited partnership, to be afterwards noticed, which entitles third parties, after its dissolution, to rely on contracts within the scope of it, made by any one partner in the company's name, before the dissolution is made known to them, aifords an illustration of this principle." Thompson on Bills, pp. 224-227 (2d ed. 1836). ' Ante, §§ 147, 148, 488. 2 Ante, §§ 163, 271; 1 Stair, Inst. B. 1, tit. 12, § 16. ' ' 3 Ante, § 163, and note, 265 a ; Pothier on Oblig. n. 82 ; Smout v. Ilberry, 10 Mees. & Wels. 1. * 1 Stair, Inst. B. 1, tit 12, § 16. § 495.] DISSOLUTION OP AGENCY. 629 and received part of the purchase-money, and gave possession of the land to C. for A., in accordance with the contract, shortly after the death of A., but without knowledge of that event, and C. afterward paid the residue of the purchase-money due on the contract to the guardian of the heirs of A., on demand thereof; and afterward the heirs having brought an action to recover possession of said lands, and C. having thereupon commenced suit against them to enjoin their proceeding in such action, it was held that the transaction being a matter in pais, and not by deed, or necessary to be done in the name of the principal, and being in good faith on the part of B. and C, and within the apparent authority of B. as so expressed by A. without knowl- edge of his death, the heirs and representatives of A. are estopped to deny such apparent authority of B., and the contract is ob- ligatory on them.^] But, where the act is required to be done in ' [Ish V. Crane, 8 Ohio St. 620. Sutlifif, J., in an able judgment there said, " As a general rule, it is well understood that the authority of the agent, depending upon the, power he possesses to represent his principal, must be re- garded as terminated upon the termination of his power ; and that the death of the principal terminates the power of the agent. The death of the principal is said to be a revocation by operation of law, of the power of the agent to act as an agent. And it is insisted (and there are some aujthorities to that effect) that a revocation of the authority of the agent, by the death of the principal, necessarily leaves all acts of the agent done thereafter, in no respect binding upon the estate or representatives of the principal. " I apprehend, however, that the weight of authorities upon this subject will be found to go no further than to hold absolutely void acts of the agent, after the death of his principal and without notice, which must necessarily be done in the name of the principal. " One of the oldest and leading authorities referred to in support of the general proposition that all acts of the agent, not coupled with an interest, after the death of the principal, are absolutely void, is Littleton. But upon refer- ring to that authority, it is found to be merely this : "If a man maketh a deed of feoffment to another, and a letter of attorney to one to deliver to him seizin by force of the same deed ; yet if livery of seizin be not executed in the life of him which made the deed, this availeth nothing, for that the other had nought to have the tenements according to the purport of the said deed before livery of seizin made ; and if there be no livery of seizin, then, after the decease of him who made the deed, the right of these tenements is forthwith in his heire, or in some other.' Coke on Litt. § 66. " Sir Edward Coke, in his commentary on this section, remarks : ' Here albeit the warrant of attorney be indefinite without limitation of any time, yet the law prescribeth a time, as Littleton here saith, in the life of him that made the deed ; but the death not only of the feoffor, of whom Littleton speaketh, but 630 AGENCY. [CH. XTIII. the name of the principal, the same objection would seem to lie to it in the foreign law as does lie in our law. § 496. Now, our law recognizes this very distinction in its of the feoffee also, is a countermand in law of the letter of attorney, and the deed itself is become of none effect, because, in this case, noiJiing doth passe before livery of seizin. For if the feoffor dieth, the land descends to his heire ; and if the feoffee dieth, Uvery cannot be made to his heire, because, then he should take by purchase, where heires were named by way of limitation. And herewith agreeth Bracton. ' ' Item oportet quod donationem sequatur rei traditio, etiam in vita donatoris et donatorii." Therefore, a letter of attorney to deliver livery of seizin after the decease of the feoffor, is void.' ' ' The same doctrine has been applied in the case of fines and common re- coveries, in which it has uniformly been held, where an appearance has been entered and a judgment suffered under and by virtue of a warrant of attorney after the death of the vouchee, that, upon the death of the vouchee, the warrant of attorney became void, and the judgment thereon of no effect. "Wynne v. Wynne, 7 Mod. Rep. 503, and Will. Eep. 668, where the same case is reported. The action was one of common recovery. The recovery was of Easter term, 1740. The writ of entry tested the 2d of April, returnable (cjuind. pach.) the 20th April, fixing the appearance day the 23d, on which day the record showed ' that the defendant, William Thomas, the tenant, appeared and vouched J. Ap- perley and Alathea, his wife, whereupon a writ of summons and warrantirandum was awarded, returnable on the morrow oi Ascension (May 16th), of that year. The dedimus to take the warrant of attorney was tested the 25th April. The warrant of attorney was executed by J. Apperley and wife, on the 30th, and the mittimus by which it was sent out of chancery into that court (the common pleas) , was tested the 8th of May. Alathea died on the 10th of May. It was held, that the warrant of attorney by Alathea, so executed, was revoked by her death, and did not authorize the attorney to enter an appearance on the 16th (after her death), nor authorize a judgment of recovery. ' ' It will readily occur to any one, that in relation to the conveyance of the title of land, either by the execution of a deed of conveyance, or by suffering a common recovery, the power of the agent must necessarily terminate on the death of the principal. Even a deed signed and sealed by one, with the intent and wish to deliver the same, would, from the necessity of the case, be in- operative to convey a title by delivery after the death of the maker of the deed. The title of the land passing, upon his death, instamier, to the heir or devisee of the deceased, no action of the attorney, even if his powers continued, could affect the title. His action would have the same relation to the title as it would, the principal living, and having before conveyed the title to a stranger, if the attorney, in ignorance of the fact, by virtue of his power of attorney, should afterwards execute a deed of conveyance of the same land to another. " But there is no necessity oithis hind for holding the authority of the agent to make contracts within his agency terminate instanter upon the death of the principal. ' ' The termination of the authority of the agent by virtue of his agency, upon §§ 495, 496.] DISSOLUTION op agency. 631 fullest force. In the case of an authority coupled -with a vested interest in the thing, we have already seen, that it is not extin- guished by the death of the principal, for the very reason, that the death of the principal, seems rather to rest upon the general rule of law, that the derivative authority expires with the original authority from which derived. " It is said, as a reason for the termination of the power of the agent upon the expiration of the power of the principal, that it is impossible that the power of the agent, who is only to act for or in the stead of the principal, as his rep- resentative, can in fact be greater or continue longer than the power of the principal. But the power of the principal may be terminated by bankruptcy or lunacy, and in the case of a/eroe sole, by coverture. In each of those cases, a revocation of the agency by operation of law, by change of condition or state of the principal, producing in him an incapacity to act legally, obtains under the general rule, as well as in the case of revocation by the death of the prin- cipal. The general rule that such change of state, terminating the power of the principal to act, is a revocation of the agency by operation of law, obtains in each of the cases named. And the question arises in each, whether there is in fact any exception to the application of the general rule. Is coverture, bankruptcy, lunacy, or death, terminating, as they respectively do, the power of the principal, to be regarded as so terminating the authority of the agent, that his acts are necessarily to be regarded in all cases as void, and of no binding effect upon the representatives or estate of the principal ? " The general rule that a mere power or authority expires by the death of either the principal or agent, is recognized in the civil law, as well as at common law. Yet under the civil law it has always been held that the acts of an agent done in good faith in discharge of the duties of the agency, after the death of the principal, and in ignorance of the event on the part of those concerned in the transaction, were valid and binding upon the representatives of the prin- cipal. 1 Dom. B. 1, tit. 15, sec. 4, arts. 7, 8. " Pothier, in treating upon this subject, says, ' The mandate is extinguished by the natural or civil death of the principal (or mandant) when it happens before the agent (or mandatary) has executed it. For example, if I have authorized you to purchase a certain thing for me, the power which I have given you, ceases with my death, and my heirs are not obliged to take, on their own account, the purchase made by you after my death.' ' But,' he adds; ' although the man- date is thus extinguished by the death of the principal, nevertheless, if the agent, being ignorant of the death' of the principal, has in good faith transacted the business with which he was charged, the heirs and other representatives of the principal are bound to indemnify him, and to ratify what he has done.' ' ' But while it is conceded that in Scotland, and in all other countries where the principles of the civil law obtain, this rule is recognized, that the acts of an agent, done bona fide, after the death of the principal, but without notice of his death, are valid and binding, it is insisted that the same rule does not find favor at common law. " Chancellor Kent, in his Commentaries, vol. ii. page 646, in treating upon this subject, uses the following language: 'By the civil law, and the law of 632 AGENCY. [CH. XVIII. it can still be executed in the name of the agent, he having the vested legal or equitable title in the thing, which he can trans- fer or change by his own act as owner.^ And it seems reasonable those countries which have adopted the civil law, the acts of an agent done honA fide after the death of the principal, and before notice of his death, are valid and binding on his representatives. But this equitable principle does not prevail in the English law ; and the death of the principal is an instantaneous and absolute revocation of the authority of the agent unless the power be coupled with an interest.' "The great learning and deservedly high reputation of the author, have doubtless, tended to give more confidence to the doctrine thus unqualifiedly expressed, than the authorities to which he refers for its support would seem to warrant. The first authority referred to by Mr. Rent is the case of The King V. Corporation of Bedford Level, 6 East, 356. It will be perceived, however, upon reference to the authority, that the question was only incidentally pre- sented in that case. The question arose as to the validity of the act of a depuiy registrar after the death of the principal registrar. The Solicitor-general Wilson, and Abbott, in their argument upon this point, used the following language : ' He is a mere ministerial officer, having no discretion to exercise ; this is most like the case of a steward of a manor who may take surrenders and do other ministerial acts, though not legally invested with the office ; because, as it is said in Knowles v. Luce, Moor, 112, those for whom such acts are done know not the extent of his title. And there Manwood, C. B., who delivered the judgment of the court, compares it to the case of an under-steward when the head steward is dead, whom he considers to have a color of authority ; so that if he assemble the tenants and they do their service at the court, the acts which he does are good. And he distinguishes that from the case of an officer who acts without either color or right.' Lord Ellenborough, in delivering his opinion in the case, held that the appointment of the deputy registrar must be regarded as made by the principal registrar Cole, and added : ' If, then, he were to be considered as the deputy of Cole, his authority would necessarily expire on the death of his principal. I feel myself pressed, however, with the authority of the doctrine in the case of Moor, that the acts of an under-steward may be good after the death of his principal ; and it is a very important point to be considered how far that ftiay be carried.' Lawrence, J., and Le Blanc, J., respectively expressed similar opinions upon the same question. "Lord Ellenborough, C. J., on the next day delivered the opinion of the whole court. In the opinion he uses the following language : ' The case pressed upon us from Moor, 112, on being considered, is not, we think, an authority against this opinion, where Manwood, C. B. says, " there is a diversity between copyhold grants by a steward who has a color and no right to hold a court, and one who has neither color or right ; for if one who has color assemble the tenants, and they do their service, the acts are good which he does, as the under-steward when the head steward is dead." " But this must Ante, §§ 488, 489. § 496.] DISSOLUTION OF AGENCY. 633 to believe, that the same doctrine will be fully recognized in our law in all other cases of authority, where the act to be done may lawfully be done in the sole name of the agent. Thus, for ex- be understood of acts of the under-steward after the death of his principal, and lefore Ms death is known; for if that were known to the tenants, what color could he have to act ? " ' " The case of Shipman v. Thompson, Will> 103, n. is referred to by Mr. Kent as another authority in point. That case was as follows : An action of assumpsit was brought by an executor, in his own name, against an attorney constituted by the testator to collect money for him of his tenants, to recover money which the attorney had collected from the tenants, as such attorney, after the death of the testator, the principal. The main question seems to have been, whether the action for money had and received could be main- tained against the attorney in the name of the executor. The following is the language of that part of the opinion of Mr. B. Fortescue, before whom the cause was tried, which seems in point: 'It is quite a new debt, created by the defendant to the executor since the death of the testator, and a new cause of action which was not subsisting before. The defendant was never indebted to the testator for this money, and the original debtors, the tenants, are discharged.' "The case of Watson, &c. v. King, 4 Campb. N. P. 272, another case referred to by the commentator, presented the question incidentally as follows : Maxwell, the intestate, being the owner of three-fourths part of the ship Little William, in April, 1813, gave a power of attorney to one Ward, to whom he was largely indebted, authorizing him to sell them. He then sailed in the ship Effort for Bermuda. In February, 1814, he was with this ship at Jamaica, and sailed in her for England with a large fleet, under convoy of H. M. ship Valiant. A hurricane soon after arose, in which several of the fleet foundered. The Effort parted company on the 7th of March, and was never more heard of. On the 8th of June following. Ward, under the power of attorney, sold Maxwell's interest in the Little William to the defendant, and indorsed the register in MaxwelVs name. The suit brought by Watson and his wife, described in the declaration as administratrix of Maxwell, was an action of trover, to recover of King the three- fourths of the ship held by him under said purchase. Among other objections to a recovery, it was urged that the power of attorney, being coupled with an interest, was not revoked by the death of the intestate. Lord Ellenbofough delivered the opinion of the court, and is reported to have decided this point as follows : ' A power coupled with an interest cannot be revoked by the person granting it ; but it is necessarily revoked by his death. How can a valid act be done in the name of a dead man ? ' The opinion was delivered by Lord EUenborough in 1816, ten years after the opinion he delivered in the case of The King v. The Corporation of Bedford Level, in 6 East, above referred to ; and without any qualification of his former opinion. The question as to whether the title of Maxwell had been transferred by his name, after his death, being indorsed upon the register, is obviously quite a different one from the one under consideration here. " The case of Bergen & Bergen v. Bennett, also cited by Mr. Kent (1 Gaines' 634 AGENCY. [CH. XVIII. ample, a factor, as special owner of the goods, may, and indeed usually does, sell them in his own uame.^ So, a supercargo generally buys and sells in his own name. So, the master of a Cases 1), was simply this: On the 12th April, 1776, Bennett executed to Van- derbilt a bond for £600, payable in one year, and for further security gave a mortgage on sixty-seven acres of land. Shortly after this, on the 8th of No- vember, 1776, the mortgagor died intestate, leaving the respondent, Wilhelmus Bennett, fifteen years of age, his eldest son and heir-at-law. The usual power to sell was contained in the mortgage, which, together with the power, was, on the 10th of April, 1777, registered in the office of the county clerk, in tlie book for registering mortgages. In the registry the mortgage was, as usual, abbreviated ; but the power was, though not recorded as deeds usually are, set forth in the registry of the mortgage in hcec verba, excepting as to the latter part declaring ■ the sale to be a perpetual bar, &c., which was totally omitted". On the 13th of April, 1781, Teunis Bergen, the appellant, purchased the bond and mortgage for £700. In 1783, the respondent, the heir of the mortgagor, left the State, and went to Nova Scotia. On the 11th of March, 1804, notice of sale of the premises, at public vendue, was published by Teunis Bergen. Upon the day fixed by the notice, the premises were offered and sold at public vendue to Michael Bergen, the other appellant, for $700. The sale appeared to have been fairly made. In 1788, the respondent came back to that State, and on the 3d of February, 1800, filed his bill to redeem the premises, for the reason, among others, ' because the power to sell, contained in the mortgage, expired with the life of the donor,' The opinion was delivered by Kent, J., revers- ing the decree of the court of chancery, permitting the heir to redeem ; and upon the point raised he used the following language : ' I conclude, therefore, that the power to sell was not revoked by the death of the mortgagor, and that the decree cannot be supported on the ground that was taken in the court below.' . " The case of Harper v. Little, 2 Greenl. 14, also referred to by the com- mentator, only decides the familiar principle of law that a deed, made after the death of the principal, in his name, under a power of attorney executed by him when living, is inoperative to convey the title of lands. Another case referred to by Mr. Kent is that of Hunt u. Administrator of Kousmanier, 2 Mason, 244. Hunt filed his petition in equity charging that Rousmanier, in his lifetime, bor- rowed of him. Hunt, $1,460, January 11, 1820, and gave a bill of sale of his interest in the brig Marcus, then at sea, for collateral security for the payment of the loan ; and on the 13th day of the same month executed a power of attorney authorizing the plaintiff to execute a bill of sale of his interest, three- fourths of the brig, to himself or any other person he should think proper, &c., reciting in a proviso that the same was given for collateral security for the payment of the note of $1,450, payable in ninety days, &c. ; and that the intes- tate, on the 6th of May, 1820, died ; that the defendants, administrators of the intestate, had refused to pay, and he had therefore advertised the three-fourths • Ante, §§ 33, 34, 161. § 496.] DISSOLUTION OP AGENCY. 635 ship, in the usual course of exercising his authority, contracts in his own name, as Bominus navis} Thus, he purchases supplies, gives bottomry bonds, makes charter-parties, and sells the ship, of the brig for sale, by virtue of the power aforesaid, for the payment of said demand, but that the administrators forbade the sale, and refused to suffer the plaintiff to avail himself of his said security, &c. Upon hearing the case on demurrer, the following points were held by the court : 1. That a power coupled with an interest does not expire on the death of the person creating it; 2. A naked power does not necessarily expire with the death of the person creating it. And upon this point the following language is used by Judge Story in giving the opinion : ' When, therefore, it is said that a naked power is extin- guished by the death of the person creating it, the language is meant to be confined to those cases in which, as in the case now before the court, the power is to be executed in the name and as the act' of the grantor, and not of the grantee.' The same case afterwards came before the supreme court (8 Wheat. 201), and was in .that court decided upon the same ground. Chief Justice Marshall, in pronouncing the opinion, resolves the case under the general rule that the death of the principal was a revocation of the letter of attorney ; and as the sale was to be made in the name of the principal, and after Ms death was known, no power to sell was held by the holder of the letter of attorney. " I have thus particularly referred to each of the authorities given by Mr. Kent in support of the doctrine expressed by him upon this subject. ".Mr. Justice Story, in treating of the subject, is much more guarded and less positive as to the d6ctrine of the common law differing from the civil law. " After mentioning the rule prevailing in Scotland, and recognized in all coun- tries where the civil law prevails, that if the agent, being ignorant of the death of his principal, has, in good faith, transacted the business with which intrusted, his acts are to be held valid, he adds : ' Reasonable as these doctrines seem, and convenient as they must be admitted to be, for the practical purposes of trade and commerce, it has been thought that they do not prevail in the common law as recognized either in England or in America.' And here reference is made by Mr. Story to the opinion of Mr. Kent already referred to. ' But ' (continues Mr. Story) ' it may be doubted whether our law deserves such a reproach, at least to the full extent in which it is usually imputed to it. Regularly, indeed, where the act to be done must be done in the name of the principal, and not in that of the agent, the authority is extinguished by the death of the principal, because it has then become incapable of being so executed.' Story on Agency, § 495. Mr. Story did not insist upon any exception or limitation of the rule in relation to the revocation of the authority of the agent by the death of the principal, inconsistent with the doctrine expressed by Littleton & Coke, already referred to. In §§ 147, 148, and 150, of his work upon Agency, Mr. Story concedes that the death of the principal necessarily extinguishes the power of 1 Ante, §§ 36, 294, 316. 636 AGENCY. [CH. XVIII. in cases of necessity, in his own name ; and these acts are con- stantly treated', when within the scope of his ordinary duties and employment, as binding upon his owner.^ Now, in all these an agent to make a conveyance under seal in the name of Hs principal, or to execute a bond or any sealed instrument,, in the name of the principal, after his death, that can be obligatory upon his representatives. He, however, uses the following language in § 152 : ' But when an act is to be done in pais, or in any other manner than by a written instrument under seal, then the act will be so construed, if it may be, as most effectually to accomplish the end required by the principal.' And the same doctrine is, with equal clearness, expressed in the opinion of the court in the case of Hunt e. Rousmanier, 2 Mason, 244. ' ' To show the distinction thus made between acts of an agent by deed, and necessarily to be done in the name of the principal, and acts done in pais, and not necessarily to be done in his name, let us suppose the principal to have appointed two agents to transact business for him at a remote distance. One is employed and empowered to sell, survey, and give possession of his land, and to receive payment and receipt therefor. The other agent is authorized to execute deeds of conveyance of the land respectively to purchasers, upon pre- sentation of receipts of payment, respectively, from the other agent, upon their contracts of sale. The limitation or exception to the rule recognized by Mr. Story would hold the acts of the agent, in selling, giving possession, and re- ceiving and receipting the purchase price of the lands, to be valid, even if done after the death of the principal, if done in good faith and in ignorance of the event. The limitation of the rule would hold those acts valid and binding upon the representatives and estate of the principal as acts in pais; while it would still regard the acts of the other agent, in executing and delivering deeds in the name of the principal, as void ex necessitate, and utterly inoperative to convey title after the death of the principal. And the fact of the title of land, by an arbitrary rule of law, passing instanter upon the death of the owner, by descent or devise, shows the necessity of the termination of the powers of the attorney and agent for the execution of the deeds, upon the death of the principal. " At the times that Mr. Kent and Mr. Story respectively expressed their views upon this subject, the revocation of the authority of the agent by death, I am not aware of the existence of a single well-considered adjudicated case upon the point, either in this country or England. "It seems to have been upon the analogies of the law, as these eminent jurists respectively viewed them, that each formed his opinion. "I admit that since the time that Mr. Kent expressed his opinion, there have been cases adjudicated both in this country and in England far more in accordance with the doctrine he asserted than the cases he referred to ; and which certainly seem to rather support Mr. Story's views than his own. In the case of Rigs, Aertson & Son v. Cage, Adm'r, 2 Humph. 350, decided in 1840, the Supreme Court of Tennessee refer to and fully recognize the doctrine of ' Ante, §§ 36, 116-123, 294^300, 315. § 496.] DISSOLUTION OP AGENCY. 637 cases of factors (and especially if they are foreign factors) and supercargoes and masters of ships, cases must constantly have arisen in which the principal has died during the agency, or Mr. Kent as expressed in his Commentaries, vol. ii. p. 646. But it does not appear from the report of the case that the correctness of the doctrine as laid down by Mr. Kent, was questioned by either counsel or court. Judge Green, who delivered the opinion in that case, perhaps may be said to have recognized the same view of the law, incidentally, at the preceding term of that court, in the case of Jenkins v. Atkins, 1 Humph. 294. In the case of Gale v. Tappan, 12 N. H. 146, in which it was held that a demand made by an attorney, ap- pointed by the payee in his lifetime, after his death, was without authority, the court say generally, ' that an authority of this kind is determined by the death of the principal.' But in that case it does not appear that the demand was made in ignorance of the death of the principal, or that it was not a case properly to be resolved under the general rule. The doctrine, as laid down by Mr. Kent, seems to have been fully recognized by the King's Bench in the case of Blades v. Free, executor of Clark, 9 B. & Cressw. 167. But the limitation or exception to the general rule, here under consideration, does not appear from the report to have been argued by counsel, or particularly considered by the court, but seems to have been passed, sub silentio, as it was by the Supreme Court of Tennessee. ' ' I know of no other adjudicated case directly in point denying the limi- tation or exception to the rule existing at common law, as well as under the civil law. Nor are there perhaps a greater number of adjudicated cases to be found directly in point to maintain the converse of the proposition. But in this dearth of authorities, I think the weight of authority, English and Ameri- can, is in favor of the existence of the limitation or exception to the rule at common law, as well as under the civil law. And the argument arising from the analogies of the law, I regard as very decidedly in favor of the exception and limitation of the rule being recognized. , "The authority of the' agent, arising as it does from the relation of the agent to his principal, would seem logically to depend necessarily upon the con- tinuance of that relation. But such in law is not the fact. It is admitted that one having been an agent, may, after he has ceased to be such, still have power to bind his principal by his acts. The only real question in dispute between those affirming and denying the limitation or exception under consideration, is, as to the extent of the power of one having ceased to be an agent in fact, to execute the office of agent. "Let us briefly advert to the authorities upon this point, which are undis- puted : — "Harrison's case, as called, 12 Mod. 346, is reported thus: 'A servant had power to draw bills of exchange in his master's name, and afterward is turned out of service.' ' Holt, Chief Justice : If he draw a bill in so little time after, that the world cannot take notice of his being out of service, or if he were a long time out of service, but that kept so secret that the world cannot take notice of it, the bill in those cases shall bind the master.' " Howard v. Treadwell, 1 Strange 506, a leading case, was as follows : The 638 AGENCY. [CH. XVIII. during the voyage and adventure; and yet transfers and sales have as constantly been made, when the death of the principal must have been unknown. No case has as yet been decided, defendant, who was a considerable dealer in iron, and known to tte plaintiflF as such, though they had never dealt together before, sent a waterman to the plain- tiif for iron on trust, and paid for it afterwards. He sent the same waterman a second time with ready money, who received the goods, but did not pay for t hem ; and the chief justice ruled the sending him upon trust the first time and paying for the goods, was giving him credit so as to charge the defendant upon the second contract. " In treating of when a revocation of the power of the agent by his principal takes effect, Mr. Story says, 'As to the agent himself, subject to what has already been stated, it takes effect from the time when the revocation is made known to him ; and as to third persons, when it is made known to them, and not before. Until, therefore, the revocation is so made known, it is inopera- tive. If known to the agent, as against his principal, his rights are gone ; but as to third persons, who are ignorant of the revocation, his acts bind both him- self and principal. Thus, where an agency, constituted by writing, was re- voked, but the written authority was left in the hands of the agent, and he subsequently exhibited it to a third person who dealt with him as agent on the faith of it, without any notice of the revocation, the act of the agent, within the scope of the authority, was held to bind the principal. Hence it is, that if a clerk or agent is employed to sign, indorse, or accept bills and notes for his principal, and he is discharged, if the discharge is not known by persons deal- ing with him, notes and bills subsequently signed, indorsed, or accepted by the clerk or agent, will be binding on the principal. Indeed, this is but another application of the known maxim of law and equity, that where one of two inno- cent persons must suffer, he shall suffer .whof, by his confidence or sUence, or conduct, has misled the other.' Story on Agency, § 470. " In the extract given, Mr. Story fuUy approves the doctrine held in the case of Anon. v. Harrison, 12 Mod., and also that of Burd v. Kirk, 11 N. H. 397, in which it was held, where an agency, constituted by writing, is revoked, but the written authority is left in the hands of the agent, and he exhibits it to a third person, who, on the faith of it, and without notice of the revocation, deals with him as an agent, within the scope of its authority, the principal is bound thereby. Indeed, I apprehend, upon this point there is no difference between the views entertained by Mr. Kent and Mr. Story. In his Commentaries, vol. ii. p. 645, Mr. Kent, after affirming the rule of the common law and the civil law to be the same, uses the following language upon the subject of the revocation of the power of the agent by the principal : ' Even if the notice had reached the agent, and he concealed the knowledge of the revocation from the public, and the circumstances attending the revocation were such that the public had no just ground to presume a revocation, his acts, done under his former power, would stUl be binding upon his principal.' ' ' It thus appears evident from the authorities, that the actual revocation of the powers of the agent by the principal, does not, in all cases, terminate his author- ity. In precisely such a case as the one under consideration, if the revocation § 496.]" DISSOLUTION OF AGENCY. 639 that, at the common law, the power was not lawfully exercised after the death of the principal under such circumstances. On the contrary, the general understanding seems to be that the of the powers of the agent had been actually made by the principal in his life- time, and he had proceeded to make sale as he did by virtue of the letter which he still held and exhibited, all would agree in pronouncing the acts of the agent binding, and the sale valid. " But by what reasoning from analogies, or otherwise, can it be shown to be material in the case, whether the revocation of the powers of the agent be actu- ally made by the principal, or whether the revocation be by operation of law merely ? " In the former case the revocation is intentional, and actually made by the principal ; in the latter it is only accidental, and to be inferred from a given state of facts, and without the expressed will, and perhaps even against the will, of the principal. There is, then, no apparent reason why a revocation of an agency, by operation of law, by coverture, bankruptcy, lunacy, or death, should at all exclude the limitation or exception to the rule in such a case as the present. The substantive fact, that the agent has ceased to have authority to represent his principal, obtains equally in either case. And yet, paradoxical as it may seem, it is evident, from the authorities, that the agent may, under certain cir- cumstances, continue to represent and bind the interests of his former principal, after the actual revocation of his authority. ' ' Now upon what principle does the obligation, imposed by the acts of the agent after his authority has terminated, really rest ? It seems to me the true answer is, public policy. The great and practical purposes and interests of trade and commerce, and the imperious necessity of confidence in the social and com- mercial relations of men, require that an agency, when constituted, should con- tinue to be duly accredited. To Secure this confidence, and consequent facility and aid to the purposes and interests of commerce, it is admitted that an agency, in cases of actual revocation, is still to be regarded as continuing, in such cases as the present, toward third persons, until actual or implied notice of the revo- cation. And I admit, that I can perceive no reason why the rule should be held differently in cases of revocation by mere operation of law. " It seems to me that, in all such cases, where the party has, by his own con- duct, purposely invited confidence and credit to be reposed in another as his agent, and has thereby induced another to deal with him in good faith, as such agent, neither such party nor his representatives ought to be permitted, in law, to gainsay the commission of credit and confidence so given to him by the principal. And I think the authorities go to that extent. (See Pickard v. Sears, 6 Adolph. & Ellis, 476). The extensive relations of commerce are often remote as well as intimate. The application of this doctrine must include factors, for- eign as well as domestic, commission merchants, consignees and supercargoes, and other agents remote from their principal ; and who are required, for long periods of time not unfrequently, by their principal to transact business of im- mense importance, without a possibility of knowing perhaps even the probable continuance of the life of the principal. It must not unfrequently happen that valuable cargoes are sold and purchased in foreign countries by the agent, in 640 AGENCY. [CH. XTIII. acts done by the factor, supercargo, and master, are, under such circumstances, binding upon all the. parties in interest. These cases seem, in truth, to be disposed of by the single consideration, obedience to his instructions from his principal, after and without knowledge of his death. And so, too, cases are constantly occurring of money being col- lected and paid by agents, under instructions of the principal, after and with- out knowledge of his death. In all these cases, there is certainly every reason for holding valid and binding the acts so done by the agency which the princi- pal had, in his life, constituted and ordered, that there would be to hold valid the acts of one who had ceased to be his agent, by revocation of his power, but without notice to the one trusting him as agent. " But I have^said, that I think the weight of authorities are in favor of the limitation, or exception, to the rule insisted upon ; and I will here briefly state the authorities relied. upon in support of the proposition. " It may be observed, in the first place, that the doctrine, as expressed and illustrated by Littleton and by Coke, is not inconsistent with the limita- tion of the rule. In. the case of Shipman ». Thompson, Will. 105, Mr. B. Fortesoue, in giving judgment, speaking of money collected of tenants of the principal after his death, by an attorney appointed by him in his lifetime, re- marked as follows : ' The original debtors, the tenants, are discharged ; ' intimat- ing thereby that he regarded the payment by the tenants to the attorney of the principal, after his death, as payment to the representative of the principal. In the case of Knowles u. Luce, Moor, 112, Justice Manwood held, that, where the under-steward, raoi Imowing the death of the head-steward, had assembled the tenants and they rendered service under him, although he had no authority in fact after the death of the head-steward, his death not being known, it was such color of authority, on the part of the under-steward, as to make obliga- tory his acts of receiving the service. " And the same doctrine is clearly recognized by Lord Ellenborough, in the case of the King ». Bedford Level, 6 East, 856. In the case of McDonald v. McDonald, Buck, 399, cited to Justice Bailey in the trial of the case of Blades V. Free, 9 B. & Cressw. 167, it was said, and not disputed, that the Vice- Chancellor referred to a case tried by Lord Mansfield, in which he held, that acts done under a power of attorney in India after the death of Che principal, hut in ignorance of the fact, were to he held binding upon his representatives. In Russel on Crimes, 317, it is said, ' Again, the death of the principal will operate as a revocation of the authority,' &c. ' But where the factor or broker has authority to do an act in his own name, then it would seem that the death of the principal will not, ipso f ado, determine such authority.' In Chitty on Com. & Manuf. 288, the law is said to be, that the acts of a legal agent may b'e good, done after the death of his principal, before notice thereof to those who are interested in his acts, as being done under a color of authority which strangers could not examine. In Chitty on Contr. 19, is the following lan- guage : ' And it is said that a sale or purchase by an agent, even after the death of his principal, if made without notice of the fact, will bind the repre- sentatives of the latter.' In the case of Davis v. Lane, 10 N. H. 156, it was held, that the authority of the agent, when revocable by the principal, was sus- §§ 496, 497.] DISSOLUTION of acjency. 641 that they either are, in fact, cases of powers coupled with an interest, or are governed by the like analogy. § 497. The same doctrine seems to be understood to apply to pended or revoked by his lunacy, in consequence of an entire loss of mental power. But held also, that if the principal, by letter or otherwise, had enabled the agent to hold himself out as having authority, and the incapacity of the principal is not known to those dealing with the agent, within the scope of his apparent authority, the principal and those claiming under him, are precluded from setting up the insanity as a revocation. "At the Septembe term of the Supreme Court of Pennsylvania, in 1842, the question under consideration first came before that court, in the case of Cassiday v. M'Kinzie, 4 Watts & Serg. 282. To sustain the plea of payment of a certain judgment against Peter Cassiday, entered April 4, 18S7, in favor of Eli M'Kinzie, the executors of Cassiday offered in evidence the following order : — " ' Mr. Peter Casidy please pay to the bearer Robert Burgoon whatever sum of money the court should make to me as I am not' able to come up to court to git it myself and I dent wish you to pay it to John M'Kinsey and the receipt of Robert Burgoon shall be good to you for the same. '"ELY M'KINZEE. " ' N. B. Pay the money to no person but Robert Burgoon.' "The defendant below then called Robert Burgoon as a witness, to prove a number of receipts given by him for money upon the order, and the payment of the money as thereby expressed. The receipts were respectively dated Sept. 29, 1838; Jan. 11, 1889; April 15, 1839; June 12, 1839; Nov. 8, 1839; and Nov. 15, 1839. The receipts were admitted to be genuine, but objected to on the ground that the payments to Burgoon were not binding on the plain- tiff, who was appointed administrator of M'Kenzie, June 21, 1839. The de- fendant also offered to prove, that the intestate went to the western country soon after giving the order to Burgoon ; and that the money was paid to Bur- goon without any knowledge of the death of M'Kenzie; The court excluded the evidence and sealed a bill of exceptions. " The plaintiff in error, before the supreme court, insisted that the money paid to Burgoon by Cassiday, before knowledge of the death of M'Kenzie, was a valid payment. It was urged by the defendant in error, that the death of the principal, M'Kenzie, was a revocation of th^ power of the agent, Burgoon, and therefore the payments to Burgoon were void. "The Supreme Court was unanimous in the opinion, that the acts of the agent, done after the death of the principal and without knowledge of his death, were binding upon the parties. Rogers, J., in delivering the opinion of the court, uses the following language : ' This money has been paid by the debtor in good faith, and received by the agent in good faith ; and why should it not be good when the authority is revoked by death, as it confessedly is when expressly revoked by the principal in his lifetime ? . . . Can it be that a pay- ment made to an agent from a foreign country, and from one of our cities to the Western States, employed for the, special purpose of collecting debts, is void AGENCT. 41 642 AGENCY. [CH. XVIII. cases of policies of insurance, procured by insurance brokers in their own names, but for and on behalf of their principals, whose right to receive the moneys for losses upOn such policies, after because his principal may have died the very day before the actual receipt of the money ? ... It would be unjust to the agent, and unjust to the debtor.' " In the case of Dick, Ex'r of Doughty, v. Page & Bacon, 17 Mo. 234, the same question came before the Supreme Court of Missouri, at its October term, 1852. The holding of that court was the same as in Pennsylvania. The court were unanimous in the opinion that the rule, that the act of an agent done after the death of the principal without notice is void, only applies to those acts which must be done in the name of the principal, and not to those acts which the agent may do in his own name. "But the case under consideration is not one in which the acts of the agent could only be executed in the name of the principal. The agent La Ferry was not an agent to convey the title to the land ; but only to negotiate a bargain with some one in relation to the conveyance. The instructions given by the principal to sell were as follows : ' I would be very glad, James, if you would sell my land. I am anxious to sell ; do try to sell if you can, and I will satisfy you for it. I want you to do the best you can for me, for I am poor and needy.' Under the authority thus given. La Ferry might have made a verbal contract, upon exhibiting the letter, and have given possession and received part pay- ment. » " There is no more necessity for the contract of sale, in this case, to have been made in the name of the principal than there would have been for the agent to have made a contract for the sale of a horse, or any other article of personal property, in the name of the principal. The act of delivering the horse, in the one case, and giving possession of the land in the other, and receiving all or part of the purchase-money, and promising a good title on full payment, would, in either case, be a valid execution of such agency. Thus in the case of Bowen «. Morris, 2 Taunt. 874, 887, where, on a sale of real property by the corpora- tion of Caermarthen, at public auction. May 14, 1804, David Bowen had become the purchaser, and the same was witnessed by a memorandum in writing of the tenor following : ' The above-mentioned premises comprised in lot 35, were this day sold to David Bowen (the defendant below) for £1,000, subject to the con- ditions of the sale within mentioned, and David Bowen, the purchaser or high- est bidder of the said lot, and Thomas Morris, Esq., the mayor of the said cor- poration, on behalf of himself and the rest of the burgesses and commonalty of the borough of Caermarthen, the vendors of the premises, do hereby mutually agree to perform and fulfil, on each of their parts respectively, the within con- ditions of sale. Signed, T. Morris, Mayor. David Bowen.' " And which contract of the mayor afterwards, on the 22d of June, 1804, was approved by resolution, and order duly made and entered at a corporate meeting of the borough, held in pursuance of their charter. After being twice argued at great length it was unanimously held by the court, Mansfield, C. J., giving the opinion, that the contract was ' on behalf of the corporation.' The mayor, says the court, ' did not contract on behalf of himself personally, but on behalf of the corporation ; that be acted merely as an agent.' " The letter to La Ferry, it is to be remarked, was not a power of attorney, §§ 497, 498.] DISSOLUTION OP AGENCY. 643 the death of their principals, is admitted, without any distinction, whether the death be known or unknown. Being parties to the contract, they are treated, as to the underwriters, as principals, for the purpose of receiving such losses.^ And, if an insurance broker were authorized to procure a policy of insurance, and should execute his orders, but before the execution thereof the principal should, unknown to him, die, it would certainly deserve consideration, whether, in such case, the policy would be utterly void by the siipposed revocation of the order by operation of law. § 498. Whether, therefore, our law be so strict and rigid in its character, as to the implied revocation, resulting from the death of the principal, in cases where the agency can be, nay, ordinarily is and should be, executed in the name of the agent, and not of or intended to authorize him to convey the lauds, only to make a contract of sale, a bargain. So when A., an agent duly authorized, wrote on a note, ' by authority from B., I hereby guaranty the payment of this note,' and signed in his own name. A., it was held to be the guaranty of the principal, and not of the agent. N. E. Mar. Ins. Co. v. De Wolf, 8 Pick. 66. "Although the rule is somewhat strict in relation to the mode of executing sealed instruments by an agent, where, from the objects of the instrument, it is essential they should be in the name and under the seal of the principal in order to give legal operation to the same ; yet the rule is less strict, and, indeed, receives a liberal exposition in all contracts not under seal made by the agent. ' In such cases,' says Mr. Story, ' in furtherance of public policy of encouraging trade, if it can, upon the whole instrument, be collected that the true object and intent of it are to bind the principal, and not the agent, courts of justice will adopt that construction of it, however informally it may be expressed.' The same doctrine is laid down by the Supreme Court of the United States in the case of Mechanics' Bank of Alexandria v. Bank of Columbia, 6 Whea,t. 326 ; also by the Supreme Court of New York, in the cases of Pentz v. Stanton, 10 Wend. 271, and Townsend v. Hubbard, 4 Hill, 351. " The contract under consideration would fall under this liberal exposition, and would have been obligatory upon the principal, if he had survived, even though his name were not subscribed to the contract. It would have been sufficient that it appeared on the face of the contract that it was made for him .by the agent. " If, then, any contract, made by an agent after the death of his principal, without knowledge of the event, in law can, and in equity ought, to be held binding, this is such a contract. " I believe the weight of authority is in favor of the rule being the same at common law as in the civil law, in regard to acts thus done after the death of the principal. But if doubtful, or even if the weight of authorities were against the exception existing at common law, in favor of the binding character of the acts of the agent, the reason in favor of the exception is unanswerable."] ' Ante, §§ 161, 272, 394. 644 AGENCY. [CH. XTIII. the principal (as has been often supposed), is a point which may perhaps be entitled to further consideration and examination than it has been thought hitherto to require. ^ If it be thus strict and rigid, it certainly must involve very many practical incon- veniences and embarrassments, without obtaining any clear as- signable good to the community at la,rge. But, upon such a subject, it is the duty of the commentator to abstain from any further reflections. ^ § 499. Sixthly. As to the dissolution or determination of agency by the extinction of the subject-matter of the agency, or of the princi- pal's power over it, or by the complete execution of the trust confid- ed to the agent.^ Neither of these cases can require any illustration to make them more clear or intelligible. The dissolution results from the very nature of the agency. If the svibject-matter of the agency has become extinct, — as, if the principal authorizes his agent to sell a particular ship, of which he is the owner, and the ship is afterwards lost, sunk, or destroyed, — it is manifest, that there is a physical impossibility of doing the act. If the owner has sold the ship to another person, before any sale by the agent, there then arises an implied revocation of the authority.* If the agent, in pursuance of his authority, makes a complete sale of the ship, the agency is functus officio, and therefore has its natural termination ^ [and the agent cannot rescind the contract.^] So, if in any other manner the principal's power over the subject- matter becomes extinct, the agency over it also ceases. Thus, a guardian ceases to have any power over his wai'd's property, when the latter comes of age ; and, therefore, the guardian can- not authorize any further act to be done respecting it.^ § 500. Here these commentaries upon the law of agency are brought to their natural close. Upon reviewing the whole sub- ject, it cannot escape the observation of the diligent reader, how many of the general principles which regulate it are common to ' See Dick v. Page, 17 Mo. 284. ^ As to how far a revocation of authority by the death of the principal, uu- linown to both parties, will aiFect the agent with liability for goods purchased for the principal, see Smout v. Ilberry, 10 Mees. & Wels. 1 ; Ante, § 466 a. 3 Story on Bailm. § 207 ; Pothier, de Mandat. n. 112. * Story on Bailm. § 207. ^ See Paley on Agency, 188, 189 ; Seton v. Slade, 7 Ves. 276. « Bradford v. Bush, 10 Ala. 886 ; Smith v. Rice, 1 Bailey, 648. ' Story on Bailm. § 207 ; Pothier, de Mandat. n. 112 ; Ante, § 484. §§ 498-500.] DISSOLUTION OP AGENCY. 645 the Roman law, to the law of continental Europe and Scotland, and to the commercial jurisprudence of England. To the latter, however, we are indebted, not only for the fullest and most com- prehensive exposition of these principles, but for the most varied and admirable adaptations of them to the daily business of hximan life. It is indeed to be numbered among the proudest achieve- ments of England, that, while the peculiar doctrines of her own common law have been cultivated and illustrated by her lawyers, and administered by her judges, with a sagacity and learning and ability rarely equalled and never excelled, Westminster Hall has promulgated the more enlarged and liberal principles of her com- mercial jurisprudence with a practical wisdom and enlightened policy which have commanded the respect of the world, and silently obtained for it an authority and influence more enviable and more extensive even than those acquired by her arts or her arms. INDEX. THE EEPERENOES AEE TO THE SECTIOWS. A. ABANDONMENT, Sections When an agent may make, in cases of insurance 103 ACCOUNTS, When agents must keep, and render .... 203, 204, 332 Negligence in keeping, effect of 203, 204, 332, 383 ACTIO DIRECTA, What it is 163 mUis, What it is 168 Exercitpria, What it is 42, 115, 163 Institoria, What it is ' 163 ADMISSIONS OF AGENT, When they bind principal or not 134-141, 451, 452 (See Rbpkesbntation of Agent.) ADVANCES AND DISBURSEMENTS OP AGENT, When agent may sell to reimburse himself for 74, note When repayable by principal 835-338 When not 348, 349 In illegal transactions, not recoverable 380, 844^348 Right to, when forfeited by misconduct 348, 349 ADVERSE INTEREST IN AGENT, Effect of ... . 9, 10, 210, 211 ADVOCATES, Who are deemed 24 Duties of 24 AGENCY, Nature of 1-4 Different kinds of u . . . . 24-37 Denomination of, in civil law, 4 Subject-matter of, what may be 11-13 What may not be '. . . . 12, 18 What acts are personal to the agent 12, 13 How corporations act in cases of 16, 62, 53 Construction of powers in cases of 21,58-128 General, what 17-19, 126 Special, what 17-19, 126 648 INDEX. AGENCY, Continued. Sections Rights, powers, and duties of general and special agents, different - 126-184 When joint only 42, 43 When joint and several 42-44 Dissolution of agency 462-500 By act of the party 463-469,476 By operation of law 462, 480, 488-600 By revocation of the principal 463-469 ' Effect of revocation, as to the agent .... 470-474 As to sub-agent 469 In case of part execution of power . . . 465-469 When power is coupled with an interest, it is not revocable 476, 477, 483, 497 How, and in what modes, revocation may be by principal 474, 475, 500 Revocation by renunciation of agent 462, 478, 479 By change of state or condition of principal . . . 480-486 By insanity of principal 481, 483, 484, 487 By marriage of principal 481 By bankruptcy of principal 482 When bankruptcy not a revocation 482 Revocation by change of state or condition of agent . . 481,485,486 When marriage of agent is, or is not, a revocation 485 When bankruptcy of agent is, or is not 486 When insanity of agent is 487 Revocation by death 488-494 Death of principal, when it is a revocation 488 When not 489 Death of an agent is a revocation 490-492 Effect of revocation by death when unknown 490-500 In the Roman law 491-494 In our law 490, 495-500 Effect of death of agent as to sub-agent 490 Dissolution by extinction of subject-matter 499 (/See Dissolution op Agency.) AGENT, Definition of 3 Who may not be an agent 5, 7-14 An infant 7, 8 A married.woman 7, 8 Monk 7 Person outlawed or attainted 7 Villein 7 Alien 7 Who may be an agent 7, 9, 210 Idiot 7 Lunatic 7 Person non compos mentis 7 INDEX. 649 AGENT, Continued. Sections A man cannot be principal and agent at tie same time 9, 10, 210, 211 Nor a trustee, guardian, &o 9, 10, 210, 211 Agent cannot delegate his authority 14, 16, 29, 34 Corporation must act by 16 Nature and extent of authority of 17-22 General, who is 17-20, 22, 126-133 Special, who is 17-20, 22, 126-133 Eights and powers of general agent 21, 68 n. 6, 69 n. 6, 126-133, 224 Rights and powers of special agent .... 20, 21, 126-133, 224 Reasons for distinction between a general and special agent 126-133, 224 Universal agent, who is a 21 Powers of agent, how construed 21, 68, 126 When he can, or cannot delegate his power . . . 14-16, 29, 34, 108 Diflferent kinds of agents . . . / 23-37 Attorney in law 24 Attorney in fact 25 Auctioneer 26, 27, 107, 108 Broker 28-32, 34, 109 Factor 33-36, 110-113 Consignee 33-36 Supercargo 33 Ship's husband 35 ■ Master of ship 36, 116-123 Partner 37, 124, 125 Cashier of a bank 114, 115 Sub-agent 15, 201, 217, 386, 390 Agent cannot act for both parties ordinarily . . . .31, 210-212, 214 Illustrations of this rule in case of officers of corporations . . 211 n. 5 Power of joint agents 42, 43 When power joint and several 42-44 How agent must execute authority •42,44,57-90,144-181 When joint sale for several principals good, or not . . . 179, note Appointment of 46-56 Mode of appointment of 46-66 When it may be by parol 46-66 When it must be by deed 47-49, 51, 62 Authority of, when implied 64^66, 84^-123 Incidental powers of 58-61, 84, 97-125 What powers not implied 76-84 How power of agent to be executed 86, 146-173 What agent may do in oases of necessity 85, 118, 141, 142, 193, 194, 198,208, 237 When he may sell on credit 60, 109, 110, 209 When not .60,109,110,209 When can bind principal by signing bill of lading .... 113 When he may insure HI' 189-192 650 INDEX. AGENT, Continued. Sections When he is bound to insure Ill, 189, 192 When his declarations and representations bind his principal, or not 134-139, 452 Duties and obligations of, to his principal 144r-216 Mode of executing authority by 146-182 When the authority must be executed in the name of the principal 147-160 Contracts of, -when void 166-171 What is a good execution, or not, of authority . . 147-160, 179, note What in commercial instruments 154^160 When agent liable on an instrument or con- tract, or not 116, 154-160; 266-300 When he may sue in his own name 112, 161, 393-404 Wben not 28, 391, 392, 402-404 Diligence, what is required of agents 182-189, 206 Duty of agents to keep accounts 203, 204, 208, 332 Instructions to be followed by, except in cases of unforeseen emergency 89, 189-192 When instructions may be deviated from 85, 118, 141, 142, 193, 194, 198, 208, 237 Not to mix his principal's property with his own . . . 200, 205, 208 Must conform to usage of trade 77, 78, 198, 199 For what negligences liable 192, 198-200, 202, 204, 217 When lie may employ a sub-agent 201 How he must deposit the principal's money 200, 208 When a depositary, duties of 206 Profits made by, belonging to principal .... 192, 207, 214, 340 Cannot purchase for himself, at expense or to the injury of his principal 210,211 When deemed a trustee for his principal 210, 211 Having an adverse interest, cannot act for his principal ., . 210, 211 Cannot set up title of third persons, adverse to the interest of his principal 217 Duty of giving advice and notice to principal 208 Cannot act adversely to his principal 210-214 Cannot be both buyer and seller 9, 210-214 Cannot receive application for insurance from himself .... 9 Cannot set up title adverse to his principal 217 Exception, where principal has obtained goods by fraud . . . 217 Agent accountable only to immediate principal 217 When sub-agent is accountable to, or not 201, 217 a When responsible for conduct of sub-agent, or not 201, 217 a, 231 a When responsible for negligence, or not .... 190, 200, 217-220 Liabilities of agent to principal 217 6-235 For nonfeasances and misfeasances . . . 199, 200, 217-220, 333 For what damages liable 217 c-223 Remote and proximate cause of damage 217 c-221 INDEX. 651 AGENT, Gontmued. s,„,.„^ Defences of agent against suits by the principal 235-261 No loss or damage to principal 222, 286, 238 Illegality of transaction 195-198,235 Speculation against public policy 235, 238 Deviation from necessity . . 85, 141, 142, 193, 194, 201, 208, 237 Ratification by the principal 239-261 What amounts to a ratification 252-261 What is no defence to agent 223 No defence, that in other cases the principal has re- ceived benefit 223 Defences of agent against suits by third persons 411 Liabilities of agents to third persons 261-323 On contracts 261-307 When agent liable on contract 155-159, 262-292 Liable on contract in his own name 264-275 When he has no authority 264, 265 When principal not disclosed 266-268, 268 a When agent a foreign factor 268, 290, 400 On written contract • 269-278 On contract under seal 147-160, 152-166, 160, 273, 277, 278 When there is no other responsible principal . . . 280-290 On implied contract 274, 276-279 Cases of private agents, acting for public companies . . 276-279, 282-288 When agent and principal are both liable 160, 161, 278, 291-300 When agent is not liable 261-263 When no credit given to him 287-300 In case of voluntary associations 287-289 Liabilities of agent of club 286-289 What is proof of exclusive credit to 297-300 Effect of exclusive credit to 434, 447-449 Effect of giving time to agent 434, 447-449 Liability of agent to third persons for money paid him by mistake 300 Liability of, to third persons for torts 308-322 When not liable 308-311 When liable for torts or negligences of his sub-agents 201, 217 a, 315-322 When not 217 a, 313, 314, 319 Not liable for his own nonfeasances to third persons . . 308-310 But is liable for misfeasances 308-310 Reason of the distinction between nonfeasances and misfeasances 308-310 Not liable for wilful trespasses of sub-agents 319 Public agents, when liable on contracts, or not .... 302-306, 412 When liable for tortious acts, or not 307, 319-322 Knowledge of, how far binding on principal . . . 140 a, 442 note 652 INDEX. AGENT, Continued. Sections Rights of agents as to principals 324-350 Commissions and compensation 324, 327 Del credere commission 828 When commissions lost or forfeited 330-334 Commissions of, lost by illegal transactions 330 So by negligence 831 So by fraud or misconduct 388, 834 So by gross omission to keep accounts . . . 332 By breach of orders 333 Reimbursement of advances of 335-388 Advances of, when forfeited or lost . . . ^ . . 330, 843-350 Expenses and disbursements of 336-337 When forfeited or lost 344^350 Reimbursement of damages to, when and what 889 Rights of, m joersoraam, against principal . . . . 342,850,385 Expenses of, after revocation of authority when payable ornot 349 Personal remedies of, against principal .... 842, 350, 385 Right of lien of agent 351-390 Particular lien, what it is 854-858 General lien, what it is 354, 858, 375 How lien is acquired 359, 363 To what debts it attaches 864-366 How lien is waived or lost 336-370 How lien is enforced 371-373 What agents are entitled to a particular lien .... 378, 374 What agents, to a general lien 375-390 Lien of factors 376-878 ' Of insurance brokers 379 Of bankers 880, 881 Of common carriers 882 Of attorneys at law 383 Of solicitors 383 Of sub-agents -. . 386-390 Rights of agents as to third persons 391-416 In cases of contract 102, noie, 891-412 When agent is a party to a contract, or not 403-412 When contract is in writing with agent .... 898-396 When he does not disclose his principal 396 When by usage of trade agent is a party 897 When he personally contracts, though as agent . . . 898 Contracts by master of a ship 36, 116, 266-268, 295-300, 434, 443 When his rights are superior to those of principal . . . 407,424 When his rights controllable by his principal . . 402, 403, 418, 420 When he may replevin goods sold 896 When he may sue for money advanced 885 INDEX. 653 AGENT, Continued. Sections When agent may sue on contract, or not .... 102, 391-395 Rights of third persons upon contracts of agent 404-406, 420, 421 Payment to or by agent, when good, or not 68, 98, 99, 181, 191 413, 429-431, 440 Rights of, against third persons, for torts 414-416 For frauds 415 ALIEN ENEMY, Contracts of agent of, void 11 n. 1 ATTORNEY, Definition of 3, 24 Letter of, what it is 3 Cannot act as principal at the same time . . 9, 210, 212, 213 Liable for negligence 200 Lien of 383 Cannot delegate his authority 12-14 In law r 24 In fact 25 Joint power of, how executed 43, 44 AUCTIONEERS, Who are 27 Powers and rights and duties of 27, 107, 108 Cannot delegate authority 108 Whether they may warrant goods sold by them . . 107, note Whether they have in all cases a right to receive the purchase-money on sales 102, 108, note ' Cannot sell on credit 209 AUTHORITY, How given 3 When it may be delegated, or not 11-15 Naked, what is 12, 13 Coupled with an interest 164, 173, 476, 477, 489 Implied power to delegate 14, 15 Construction of, when general language used . 21, 22, 62-71 When joint only ■ ■ 42, 43 When joint and several 42-44 Joint, how executed 42-44 How authority is to be executed . 42-44, 146-155, 161, 162, 165 Whether revocable by parol, when under seal . . .49, note How authority coupled with an interest is to be executed ' 164, 178 When exceeded, effect of, 166-173 When is an excess of, or not 166-175 When less done than authorized, how far binding . 166-174 When it must be strictly pursued, or not . . 78, 79, 165-172, 179-181 When joint agents must all execute 42-44 When it is several as well as joint 42-44 When it may be given by parol 46-48 When it must be by deed 49, 51-53 Execution of deed, in presence of principal 51 654 INDEX. AUTHORITY, Continued. Sections Of agent to bind principal as surety 69 Of corporation, when and how given and executed . 62, 63 When authority need not be given by deed . . 64-56, 68-62 When implied generally .... 64-56, 68, 62, 84, 89-103 Nature and extent of 67-143 How construed 21, 22, 62-71, 74r-76 Incidental powers . . . , . 67-76, 81-83, 86-87, 94-106 Incidental powers of particular agents . . ... 107-126 How written instruments construed .... 62-72, 74-76 How commercial instruments construed 69, 74, 76, 77, 82, 83 Distinction between authority and private instructions . 73 Instructions, how construed 78-76, 77, 82 Parol evidence to explain, when admissible, or not . 76, 77, 79-83 Deviation from, when excused . 83, 118, 141-148, 193, 237 What not implied 77-79, 98, 99, 119 Distinction between general and special authority as to third persons 17-22,73,126-183 Mode of execution of 146-164 When coupled with an interest 164, 173 When to be executed in name of principal . 147-153 How deeds to be executed by agent . . . 146-152 How other instruments 162-165 When principal bound by mode of execu- tion . . 147-156 When agent bound by mode of execution 166-160, 264^278 What is a deviation from authority, or not . . 167-172 ■ When execution of, is good ^ro tanto, or not . . 167-172 B. BAILIFF OF A MANOR, What acts he may do 101 What leases he may make 101 BANK, CASHIIER OF • 114, 115 Implied powers of . ., 114, 115 When his acts bind the bank 114, 116 When his acts do not bind the bank 114, 115 BANKER, When agent may deposit with 202, 208, 218 Lien of 880 BILL OF LADING, Who liable on for freight . . . 263, 274, 394, 896 BILLS AND NOTES, When agent personally liable on bills, di/awn, indorsed, or accepted by him 156, 269 When agent can draw or indorse, and how 69 BOTTOMRY BY MASTER OP SHIP 118, 450 INDEX. 655 Sections BOUGHT AND SOLD NOTE, What 28, note BROKER, Definition of 28 Does not act in his own name 28-34, 109 May buy and sell goods ... 28, 29, 211 Has not custody of goods 28, 34 Bought and sold note of 28, and note Powers and duties of 28-32, 34, 34 a, 109, 187, 209 Cannot delegate his authority 13, 29, 84 a, 109 For whom he is agent 28, 31 When for both parties 28, 31 Different kinds of 32 Implied powers of 28, 68, 109, 225-227 To insure, when he may receive loss 58, 103, 191 When he may refer or compromise a debt 68 When he cannot sell on credit 109, 226 Cannot generally receive payment 109 Policy broker, authority of 68, 103, 109 May adjust and receive losses on policies 68, 103, 109, and note, 191 Diligence required of 127 When broker may sue in his own name, or not .... 109, 161 Has no lien 84 Sometimes acts as factor 84, note CARRIERS, COMMON, lien of . , 873, 882 CASHIER OF BANK 115 Powers of . 115 May dispose of bank funds, to pay its debts 115 May draw checks on other banks for its funds 116 What powers he has not 115 Cannot bind the bank by his unauthorized declaration or act 115 Payment of forged check by, when it binds the bank . . .115 C^USE, Proximate and remote, of loss, effect of 219,220 CLUB, Committee of, how and when liable, or not 286-289 COMMISSION, When agent entitled to 326-330, 348 When not 329-383, 348 Not, on illegal transaction 880 Not, when guilty of negligence 381-838 Not, when guilty of misconduct 831-384 When forfeited 831-334 COMMISSION, Del credere. Meaning of 83, 112, 215, 328 COMMISSION MERCHANT, Definition of ; 33 COMPOSITION OF DEBT, When agent inay make 99 COMPROMISE OF DEBT 99 When agent may make 99 CONFUSION OF PROPERTY, By agent . 179, note, 200, ^06, 332, note 656 INDEX. CONFUSION OF PROPERTY, Continued. Sections Effect of, by joint sale of property of several principals 179, note, 205 CONSENT, Tacit, when implied in fav^r of agent .... 54-66, 87-93 CONSIGNEE, Definition of 33 Rights of Ill, 274, 895 Joint consignees 44 When property vests in Ill, 274, 395 May insure for his principal Ill When agent consignee liable for freight 274 When he may sue on bill of lading 274, 395 CONSIGNMENT, 44 When treated as joint 42-44 When as several 42-44 To or by partners 39, 44 By part-owners 40 To agent, effect of 274, 895 CONSTRUCTION, Of written instruments, belongs to the court .... 68, 63 a Of powers of agency 21, 58-125 CONTRACT, When agent may sue on 102, 161, 391-402 When principal may sue on . . . 160-163, 402, 403, 418-429 When agent bound by 154-160, 263-300 When principal bound by ... . 146-160, 275-300, 442-452 Whether principal liable for, under seal 49 Contracts of agents acting for both parties voidable . . . 211 CONTRIBUTION, When agent is entitled to for damages 339 When not 339-841 CONVERSION OF PROPERTY by agent 210, 215, 217, 225 Remedy of principal in case of . . . 224, 229, 230, 436, 437 CORPORATION, How it must act 16, 52, 53 Must act by agent 16, 52, 68 How appointment made by 62, 53 Authority may be communicated to agent orally . . . 52, n. 8 Cannot delegate authority 18, 14 When authority by, need not be under its seal . . . . 62, 53 Implied authority of, to act and make contracts . . . . 52, 63 Liable for tort of agent 308 When notice to its agent binds or not 140-140 6 Whether notice to the directors is notice to . . . 140 a, 140 b Municipal, themselves agents, and not presumed to ratify incidentally acts of their officers be- yond their authority 53 note CREDIT, Sale on 60, 109, 110, 200, 210 When an agent may sell on credit . 60, 109, 110, 200, 209, 226 When not 60, 108-110, 209, 226 Exclusive credit, when given to the principal or agent . . . 280-300, 431-433, 446, 447, 449 INDEX. 657 CREDIT, Continued. Sections Effect of exclusive credit. . .288,289,296-299,432,440-449 CUSTOM OF TRADE, Effect of, as to authority of agent . . . ... 60, 77, 86, 87, 96, 106, 189, 225, 226 D. DAMAGES, For what, agent is liable 5l7 c-221 Proximate and remote 217 c-220 rules of ascertaining 217 0-221 Probable agent not liable for 220, 221 Proximate and remote, when agent liable for . . . 217 c-221 When agent entitled to 339 From principals 339 From third persons 414, 415 When agent not entitled to 341 DEATH OF PRmCIPAL, Revocation of authority . . 349, 488, 491-496 Effect on acts of agent, when the death is unknown . . . 488 DECLARATIONS, Of agents, when they bind principal, or not 134-139 Of cashiers of banks, when binding on the banks . . . 114-115 DEED, Authority to execute, must be under seal 49-61 Execution by agent in presence of pMncipal 51 Must be executed, how by corporation agents 149 DEFENCES, of agent 235-261 For not procuring insuraiice 222 For omissions in policy 222 For omissions of duty 222 What a good defence 222 Illegality of transaction 195, 222, 235 No damage has occurred 235, 238 Overwhelming necessity .... 85, 118, 141, 142, 193, 237 What not a defence 223 Of third persons, to suits by agents 404-409 By principal, to suits by third persons 432-435 By third persons, to suits by principals . . . 404^409, 418-431 To suits by agents 404-409 When giving credit to agent is a good defence 432-435 DEL CREDERE COMMISSION, Definition of . . . .33, 112, 215, 328 Effect of 33, 112, 215, 284 Makes no difference in extent of authority 112, 216 Duties of factor with such a commission 215, 234 Compensation of factor under such a commission .... 328 DELEGATION OF AUTHORITY, When it may be made, or not . . . . 2, 6, 11-16, 29, 34, 108 Agent cannot delegate 14^16, 29, 34, 108 Corporation cannot delegate 13, 14 A.GBNCT. 42 658 INDEX. DELEGATION OF AUTHORITY, Continued. Sections Except in special cases 14, 15 Factor and broker cannot 14, 15, 29, 34 Auctioneer cannot 108 When substitution good, or not 13-16 Auctioneer has no right of 108 Nor broker ' 29, 109 Nor factor 34 a, 110 Nor policy broker 109 Shipmaster, when he may delegate his authority . . .36, 120 DEMAND, by agent, when good, or not 247, 440 Effect of ratification of an unauthorized demand .... 247 Of payment by unauthorized agent, not good 247 DEPOSIT, When agent must make, of his principal's money .... 208 In what manner to be made 208, 218 When agent liable for loss of, or not . . . 202, 206, 208, 218 Must be made in name of principal 208 DEVIATION FROM AUTHORITY, When excused 85, 118, 141-143, 193, 237 When not excused 189-194 DEVIATION FROM VOYAGE, When a defence for an agent 218, 219 When owner and master responsible for loss of goods after deviation 218 DILIGENCE, What degree required of agents 182-188 Governed by usage of trade and habits of business . 185-191 (See Negligence.) DISCHARGE OF PRINCIPAL, By acts of creditor 432-434 By agents taking or giving security 433, 434 DISSOLUTION OF AGENCY 486-500 By act of party 463-469 By operation of law 462, 480, 488-600 By revocation of principal 463-469 In cases of part execution of power 466-469 What amounts to a revocation 474, 476, 600 At what time it takes effect 470-474 By renunciation of agent 462, 478, 479 Revocation by change of state or condition .... 480-486 By insanity of principal 481-484 By marriage of principal 481 By bankruptcy of principal 482 When bankruptcy not a revocation 482 Revocation by change of state or condition of agent 481, 485, 486 When marriage of agent is, or is not 486 When bankruptcy of agent is, or is not 486 When insanity of agent is 487 By death 488-494 INDEX. 659 DISSOLUTION OF AGENCY,* Oore«m«e^. Sections By death of principal 488 When death of principal is not 489 When power coupled with an interest not 476, 477, 483, 497 By death of agent 490-492 Whether power in all cases revoked by death in our law 490-600 In cases of supercargoes, factors, and masters of ships, when death of principal unknown 491-600 DUTIES TO GOVERNMENT, When principal liable for . . . 335, 336 When principal not liable for 343, 344 Not to agent, for duties illegally evaded 343-346 Illegal, not repayable to agent 344, 345 Saved by smuggling, not allowed to agent 343 E. ELECTION OF PRINCIPAL OR AGENT as debtor, When allowed : 447, 448 ELECTION OF REMEDY against principal or agent . 101, 269, note, 291, 294, 296 In the Roman law discharged the other party . . . 294, 296 But not in our law 294, 296 ENEMY, ALIEN, contract of agent of, void 11, ?i. 1 EQUITY, Owner may be bound in equity, by the act or contract of his agent, when not at'law .... 148, 153, note, 162 EVIDENCE, Parol, when admissible to explain authority, or not 62, 76, 79, 80, 83 Not admissible to enlarge authority 76-81 EXCESS OF AUTHORITY by agent, effect of 165-174 What is an excess 165-174 What not • 165-174 When execution of authority good pro tanto . . . 167-172 EXECUTION OF AUTHORITY 44, 67-90, 144-181 Mode of, to bind principal 147-164 When agent bound by mode of 147-160,263-290 When good pro tanto 167-172 When coupled with an interest 164, 173 ((See AuTHOKiTY.) EXECUTORS AND ADMINISTRATORS, Cannot act adversely to the estate . ' 211 Cannot buy or sell for themselves 211 EXERCITORIAL ACTION, What it is 163 EXEBCITOR NAVIS, Who is in Roman law 116, 117 660 INDEX. F. Sections FACTOR, Definition of 38-34 a Differs from a broker, in -what respects 34, 34 a Is a general agent 34, 110-114, 131 General powers and rights of 110-114, 131 Buys and sells in his own name 34, 110-114 Powers of, in cases of necessity 85, 141-143 When bound by his contract, as well as his princi- pal 112, 266-268, 290, 400 Foreign factor 268, 290, 400 Domestic factor • . . . 293, 401 Special property of, in goods 34, 111 Lien of 34, 113, 373, 376, 378 Powers and duties of. . . . » . 34, 34 o, 110-113, 131, 209 Cannot delegate his authority 34 a Diligence and skill required of 186 When he may sell on credit 60, 110, 209 Incidental and implied authority of 110-113, 131 May insure Ill May sell in his own name 110, 112, 398-403 Cannot pledge or barter goods 113, 225 May pledge for advances for principal 113 May pledge for charges 113 When he may make a joint sale for several principals . 179, note When he may sell to reimburse advances 74, note Rights of . . . . • 407-410 Lien of, particular and general 373-378, 407 Rights of, when superior to those of principal . 407-411, 423, 424 Rights of, when subordinate to those of principal . 402, 403, 410, 418-420 When he may sue or be sued on contract .... 112, 400-402 When he may be sued 290, 400-402, 447, 448 When he may maintain an action for tort to property . . . 401 Foreign factor, when deemed the sole principal 268, 290, 432, 448 FACTORAGE, or commision 33 FEME GOVERT {See Markibd Woman), Cannot authorize others to act for her generally 6 May in special cases 6 May be an agent '. 7, 8 FOREIGN PRINCIPAL, When agent liable on contract for . 268, 290, 400 FRAUD OF AGENT, When principal liable for . . . 126, 127, 139, 453. FRAUD UPON AGENT, When he may sue for 415 FREIGHT, When agent is liable for 263, 274, 395 INDEX, 661 Sections GENERAL AGENT, Meaning of 17, 18 When his acts bind his principal . . .60, 70, 73, 126-128, 131 Even though he violates instructions 73, 126-133 Reasons of the doctrine 127 and note, 133 Factor is a general agent 110-114, 131, 224 Master of a ship is a general agent 116-123, 128 GUARANTY (del credere) 33, 112, 215, 328 GUARDIAN, Cannot be principal and agent at the same time .... 9 H. HOMAGE, Cannot be done by an agent 12 HYPOTHECATION, When master of ship may hypothecate ship 116 When he may hypothecate cargo also 118 I. IDIOTS AND LUNATICS,- Cannot be principals 6 Cannot be agents 7 IGNORANCE OF LAW, No excuse 225, 226 ILLEGAL ACTS, Authority to do, not presumed 197 ILLEGAL COMMISSIONS, Not recoverable 330 (See Advances.) ILLEGAL CONTRACTS of agency are void . . 195-197, 235, 330, 344-348 ILLEGAL INSTRUCTIONS, Not obligatory 195-197, 235 ILLEGAL PAYMENTS, When recoverable back, or not 300, 301, 344, 345 IMPLIED POWERS 56-60, 87, 92-125 When powers are implied 55-60, 87, 92-126 When not 77-80, 98, 99 INCIDENTAI. AUTHORITY of agent 65-60,87,92,125 INCIDENTAL DUTY of agent 192-210 INCIDENTS to principal authority, What are ... 68-60, 73, 77, 78, 85-88, 96-120 INDEMNITY, When agent entitled to 339, 340 When not ' 341 INDORSEMENT, When agent is authorized to make 69 Power of partner to make 124 Of negotiable instruments, apparent title by . . . . 227,228 Effect of, by agent 269 INFANTS, Cannot delegate authority 6 May be agents 7 INNKEEPERS, How and when responsible for acts of their servants 458, 469 662 INDEX. Sections INSTITOM, Meaning of, in civil law 8 mSTITORIAL ACTION, What 163 mSTKUCTIONS, How construed .... 72-83, 86, 96, 198, 199, note When principal bound, although violated . . . 70-73, 126-133, 193-197 When deviation from, is excusable, or not 86, 118, 141, 193-198, •237-333 Illegal, not to be followed 196-197, 235 How and when to be foUowed 188, 192-198 Breach of, when agent liable for 332, 333 Commissions lost by breach of ., . . 331-333 When restrictive of authority, or not .... 72-74,78,198 Usages of trade, effect of, on . . . 60, 76, 77, 86, 96, 106, 169, 196, 199 Parol evidence to explain, when admissible or not . . . 76-82 Deviation from, when excused . . 86, 118, 141, 194^198, 237 When not 189-192 rNSUKANCE, Who may insure Ill, 189-192 When broker 32,68,189-192 When factor Ill, 189-192 When consignee may make Ill, 189, 192 Who is bound to insure 189-192 Who may not insure . 36 Ship's husband may not 35 How orders for insurance executed 191 Defences of agent for not procuring, what are good . . . 222 Broker, duties and diligence required of . 68, n. 4, 187, 190, 191 Broker, when he may receive loss . . . 58, 58 n. 4, 103, 191 Abandonment by agent, when good 103 When agent may adjust loss 103, 191 When agent may insure or not Ill, 189-191 When agent responsible for negligence in procuring insurance 218 When agent may sue on policy . . . 109, 111, 161, 272, 394 When principal may sue on policy 161 In cases of necessity, whether agent may make 141 INSURANCE BROKER 32 Lien of, general and special 373, 379 Rights of 58, 103, 109an(imo